I ate breakfast with a sixty-year old doctor who told me he’d retired from doctoring. He is a paediatrician, a member of that special tribe of doctors whose hallmark is kindness.
I congratulated him on his courage. It takes courage to walk away from a mistress as beautiful – or as possessive – as Medicine.
‘Oh no, I wasn’t brave; the opposite. I was sued.’
Why was I surprised? Even in his quiet state of Tasmania we Aussies follow America in so much.
I wondered what he’d done.
‘Nothing. I wasn’t accused of doing anything wrong. That was the problem: rather I was accused of not doing something right; I didn’t detect a cancer that was diagnosed years later. By the time the cancer was found it had spread and could not be cured.’
My friend told me the story: how the woman consulted him for breastfeeding advice when her new baby was four days old for breast pain that went away over the following week. Two years later an aggressive breast cancer was discovered.
The woman visited my friend only once. By the time the case came to court the unfortunate patient had no memory of my friend.
America’s doyenne of breast feeding, a distinguished doctor, still acute in her nineties, travelled to testify what any doctor – or any mother – would know: breast pain is universal in the early days of lactation; that transient soreness of that sort is not caused by cancer but by engorgement; and when engorgement settles the pain disappeared. That is what happened in this case too; the eventual cancer was permanent but its supposed symptom was temporary.
This did not deter the counsel for the plaintiff from bullying my friend and decrying his knowledge and skill. In open court, on the public record.
The jury found for the doctor. He was exonerated. And, following two years of legal proceedings in which he lost sleep, lost weight and felt shame, he decided to stop seeing patients. ‘If I can be sued for practising properly, then I can never feel safe. I could be humiliated and publicly insulted in that way at any turn.’
A family with two small children will lose a mother. That mother will suffer and die. My friend loses his good name. A community loses the service of a person who turned his back on Medicine’s monied paths to work humbly for children. How many children of the future will never know his wisdom and skill? How many mothers might have found comfort in his counsel?
I marvelled that this person of exemplary quietude could be shamed publicly. I marvelled at the shamelessness of that lawyer, operating for a contingency fee. In pursuit of mere money that lawyer sought to take from my friend his good name. Now the lawyer has lodged notice of appeal. More grief, more tension for the accidental doctor, the human who helped another human in the elemental enterprise of physical mothering.
More tension and uncertainty, more grief for the mother who will die.
I attended a tribunal hearing once of a different type. Here there was no suit for damages. Instead the licensing authority heard an accusation against an older doctor by a patient that he’d carried out an improper examination of her chest.
The tribunal – consisting of two doctors (one female), a former police detective and a social worker – heard the patient’s evidence in a closed room. The woman was allowed the presence of a support person. The doctor and his support person were excluded. As a result the complainant was given an opportunity to present intimate evidence before a small number of persons who questioned her with respect and tact.
The lady and her supporter were then excused and shown to a private room to await the outcome.
Subsequently the doctor was called on to explain himself before that same nuclear group. He detailed a systematic mode of examination which was thorough, an examination he was taught at his medical school in the days when doctoring was painstaking and x-rays were a late resort. It transpired the patient had never before been examined with such thoroughness. She felt it improper.
The older doctor had practised in this manner for sixty-five years without any complaint against him. He took quiet pride in his meticulous methods. He knew no other way. And now those virtues had found him out.
I imagined the woman had to summon her courage and her resolve to make her complaint. But in the course of these proceedings she was not made to feel that she was on trial for her own truthfulness.
The panel – comprised of doctors and non-doctors – exonerated the doctor. The female chair said the panel found his work exemplary. She added, ‘This tribunal wishes you many more years of such careful practice.’ She then excused the doctor.
After the doctor’s departure from the premises the complainant was recalled. The tribunal explained that no finding was made against the doctor’s practice nor against the patient’s truthfulness.
Here again two innocent persons endured painful proceedings, but neither was humiliated in open court. A careful enquiry was conducted, uncontaminated by lure of money; here there was no blood sport.
We do have the Westminster system which is adversarial. To antaganize and cause conflict is at the heart of it.
I did jury service once and I was sickened by the defence lawyers interrogation of innocent witnesses and policemen in their efforts to discredit anyone who might be able to persuade the jury of criminality of the men on trial. The case was dropped, as key evidence could not be made available to the jury. Two guilty men walked free and some very ordinary citizens left the courtroom knowing the law was an ass. One brave, black policeman will, I hope, have been patted on the back by his colleagues for keeping his cool in the face of some very ugly slurs and innuendo. I have never forgotten. I am convinced that the adversarial system is neither just nor kind. The French system seems better to me.
A sobering experience HCG
One that would linger and ache
Eloquent summation Hilary
I am biased! after 26 years of police service, I’m so glad I don’t have to appear in court anymore, knowing barristers are going to try and blacken your honesty and ability anything to have a “win” for their client! I now detest any us them situations! xxxx
The law is too blunt an instrument for the finesse that human situations demand
It is, however, our best imperfect guarantee of our liberty