The email was forwarded from the Eugene Astronomical Society:  “Dr. Smith, I need you to call ASAP about a patient of yours.  It is an emergency.”

I left practice 25 years ago.

I had hoped eventually I would be free of my past medical practice, and even being thought about as a doctor, but as late as 2010, I was still ranked as one of the top neurologists in Arizona, 17 years after I last practiced.  In 2012,  I got an occasional call wanting to be seen at “my office.”  I was stunned that data bases had not been updated for so long.  I shouldn’t have been surprised.  I bet my career after medicine on being a medical statistician, and that bombed.  I tried to improve quality in medicine, and instead every member of my family, including me, has suffered from a medical error.  I routinely  diagnose and treat myself. I shouldn’t, but it’s my reality.  It takes too long to get in to see doctors.

I ignored the call.  First, the only neurological emergency I dealt with was status epilepticus, or recurring seizures without waking up in between.  Second, I don’t respond to the term “emergency” unless it involves a family member.  I spent too long in practice treating pseudo-emergencies (“headache, see today”, which was always, and I mean always, tension) and emergency is overused. This letter could only mean trouble, and I wanted to be left alone.

A week later, a call came to the answering machine to call a law firm in Houston about a former patient of mine. They needed me to respond before 7 November, and I ignored that call, too.  The last thing I wanted to deal with was a former patient, and the statute of limitations on my care had long ago run out.  I wasn’t practicing.  Period. Leave me alone.

Two days later, I wasn’t left alone, as I was threatened with a subpoena to appear in court on another voice mail.  That I couldn’t ignore.  I called the woman—a paralegal—since lawyers are too highly paid to talk to a mere doctor.  I let her have it with both barrels about how I didn’t have a practice, I was not seeing patients, and I wanted to be left alone.  The paralegal said that my deposition was necessary as part of a class action suit.

I asked the woman whether I needed a lawyer and got an equivocal response: “Some doctors do, some don’t.”  “But,” she added, “this is not about you.”  I didn’t believe her one bit.  That’s like saying it’s not about the money, which means it is about the money.  It is not about me means it is about me. I took a wild stab and decided to call my malpractice insurance carrier, for I had paid “tail” coverage, which meant they would represent me regarding future claims, even ones that were decades ago.  MICA (Mutual Insurance Company of Arizona) was a well respected, doctor-owned malpractice insurer, and I made sure I bought tail coverage when I left medical practice.

MICA replied immediately, and shortly thereafter the attorney assigned to me and I exchanged e-mails.  She told me what she wanted—to pause before answering questions, to allow myself to think and to allow her to object if necessary.  She looked at the statute of limitations, which is two years or age 21 years for discovery, depending upon the age of the patient.  I was beyond the statute of limitations but still didn’t feel safe.  I have been sued and gone to trial.  I called it Intellectual Rape, and it was a form of PTSD, for I lost sleep over this upcoming deposition, and I was shorter with people than I normally was.  I was unpleasantly surprised but grateful to learn in advance that the defendant’s lawyer might a potential problem; I had thought it would only be the patient’s lawyer.

On deposition day, I put on decent clothes and appeared on time.  All three lawyers had flown in,  each with some form of an upper respiratory infection.  I had a list of notes to remind me: “Stop-Think”, “They are the Enemy, but they are doing their job,” “Don’t volunteer information,” “No small talk,” “I have no independent recollection.”  I used similar notes when I was being sued and at trial.

The reason for the class action suit will not be divulged here.  This in itself is unfortunate, that we have to keep such things silent from the public, when perhaps it might be useful to learn what happened and why.  It was a long day full of questions that were objected to on the basis of form, foundation, lack of evidence, and other reasons.  I still had to answer them. It was 5 grueling hours of questions, and I had to be constantly aware of what the lawyer was trying to do.  At the end, I finally allowed myself to be frustrated enough to say that the only friend I had in the room were my notes, and I was glad I dictated such complete ones.  As my lawyer and I left the room, the other two lawyers said, “We’re your friends. We aren’t trying to get you.”  I didn’t answer.  Had my lawyer not been there, I might well have brought out additional information that would have made the deposition even longer (with more objections, too).

And that is the problem with our approach to class action suits.  In my world, I would be allowed to comment as I saw fit, free from fear of being sued myself, and trying to get to the bottom of when we should have known and what we should have done at the time..

I have no idea whether my former patient will be compensated.  In the world I would like to live in, there would be compensation, not for everything, but enough to make life bearable. Instead, it’s a lottery, and if one knows there is a game, one gets a lawyer and hopes to win big.  Large law firms have web pages devoted to class actions suits currently in progress or in the pipeline.  They advertise for cases.  Their lawyers fly around the country doing depositions from people like me, the going rate for payment being $500-$1000 (or more) per hour.  This sort of behavior encourages professional witnesses (whom we used to call whores).  They do this because of the money: 1/3 or more of the compensation means up to a $2 billion is not going to patients but to lawyers and expenses.  It’s a bad system.  It is a system that wants the whole truth and nothing but the truth, but the truth is often that we often do not know for sure until there is compelling evidence, and that many harmed never get their day in court.

If we were more interested in counting bad outcomes, in order to learn, instead of to sue or to punish, and if we truly were interested in doing what is best for people, rather than padding pockets and hiding the truth, we would develop a system in place that would recognize that bad outcomes occur, that some deserve compensation, even if they aren’t aware of how to get a lawyer, and sadly, some don’t deserve compensation.

I spent a crappy 5 hours, and I probably will get some virus as a result.  But my life is great compared to the plaintiff’s, who in the legal sense probably didn’t have a claim, but in the moral sense ought to be helped, because in the country I served, we help people like that, even if we can’t make them whole.

When I dropped my lawyer off at the hotel, thankful that her presence saved me a pile of grief, she asked what I charged for the deposition.  “Not enough after today,” I said.  “$100 an hour.”

She was stunned.  “Why so little?”

“Because when I heard the going rate, I told the lawyer that was outrageous.  There is too much money in the system, and I can help just a little by not asking for so much.”  I had a crappy day, and I got paid what most people in the country would give a great deal to make.

Nearly five hours, and I got paid $400.  Yeah, the last fifty minutes was free.  Told you it was about the money.



  1. denisehelmkay Says:

    The dilemma between your professionalism and the frustration within our SYSTEM is noted. If we can ever see a way towards outcomes that flow from the time of entry into the SYSTEM and beyond, maybe some of the pilfering will fall off along the way.

    Denise Helmkay

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