Season 5, Episode 6: Navigating Medical Malpractice: Expert Insights with Dr. Steven M. Cohen

Our Episode Transcripts are produced by Descript. Some words/dialogue may not be transcribed with 100% accuracy.

Ellie: [00:00:00] Thank you so much for joining us on Law Talks, and to start the interview, please could you tell us how you became a medical-legal expert?

Dr Stephen M. Cohen: So thank you so much for inviting me. So my name is Steven Cohen. I am a board certified general and colon and rectal surgeon. Currently now at Richmond, Virginia, I work at our VA medical Center.

Taking care of veterans. The other thing that I do, and I've been involved in really for 30 years, is the teaching, training and educating me medical students and residents. And, and I, you know, back in when I started practice in the nineties, which long time ago, I didn't even know that this was a possibility.

I was asked by my senior partner about three months into practice, was I willing to review a case, and I didn't know what that meant. I didn't know you can get paid for it. I figured, [00:01:00] you know, I review cases a lot. I've been a doctor for a while. I just started practice, but that's really how it got started and the way I look at it now, I.

When I review cases or I'm talking to attorneys, or I'm explaining it to a jury who has really as little medical background as possible, it's no different than when I'm teaching the medical students in residence. I, I feel like if I can explain it to you in simple terms and you understand it than I know it myself, and if I can't explain it to you, then something's not right.

Ellie: Thank you. That was, that was very clear. And it seems like an interesting way to kind of constantly, I guess, be learning about new things. I'm, I'm guessing cases are kind of constantly cropping up with different issues. So yeah, it seems a really interesting thing to do during your medical career.

Dr Stephen M. Cohen: Yeah. The other thing, the way I look at it and, and you know, I usually work on both sides, so I will talk [00:02:00] to plaintiff attorneys. If a patient gets injured, I'll talk to defense attorneys. So, and, and I know this sounds silly sometimes I can't remember which side hired me. I. And my, when I tell that to some people, they go, well, you're, are you not paying attention?

No, I am paying attention, but let's remember how it works. I'll get a phone call or an email about are you willing to review a case? A do you have time? We go through a conflict check. Do I know I. The hospital? Do I know? The, the provider. Okay. And, and sometimes the attorneys don't even have a lot of information about the case.

I talked to one yesterday, a new case. Mm-hmm. Every question I asked him, he had no idea, and he kept apologizing. I said, well, what, how many days after the surgery was the complication? I, I don't, I don't know. I don't have it in front of me. Well, what, what, did they have a CAT scan or is there any imaging?

I'm not sure. And I'm thinking, well, because the case got reviewed internally by a legal nurse consultant, [00:03:00] there's a, there's a case they wanted to get it reviewed, which is fine, but then it may take after the initial call and I'm realizing the attorney's not helping me. That doesn't help. Yeah, no conflict.

Happy to do it. Make sure What time crunch are you in? It may take four to six weeks for me to get the records.

Mm-hmm.

Dr Stephen M. Cohen: I don't remember the conversation. I don't remember what the issue was, so. I, I think that gives a lot more credibility and I have, I have made the mistake before. But made the attorney very happy.

For example, I was reviewing the case and I, and I was, I went through everything. I went and I told the attorney, after, you know, again, it was four to six weeks after the initial call, I got the 5,000 pages of records. I then talked to the attorney. I said, I can't really help you In this case, I feel like the provider met the standard of care.

There was a clear indication for surgery. The surgery was appropriate. Yes, there was a [00:04:00] complication, but it was not foreseen. And the minute there was a change in clinical status, the blood pressure dropped. The white count went up, there was something going, they acted immediately and they fixed the problem.

And the attorney said to me, oh, that's great. I'm the defense attorney. Oh, okay. Yeah. So again, it's. It really. And the other thing that I, and I tell even some of my own colleagues, I think it makes me a better doctor.

Mm-hmm.

Dr Stephen M. Cohen: I have to continually keep up with, there's new drugs, there's new cardiology medications that come out.

How do those things interact? How did that affect the clinical. Effects of the patient, so mm-hmm. It, it definitely makes me a better doctor and I need to be smarter than the attorney. And I know that sounds silly, but the attorneys, you know, they on, if I'm on the opposite side, they're gonna, they have their own expert.

They go over the medicine with them. [00:05:00] Mm-hmm. They can, they can look up articles, which they do. So it really. It really improves, I think, my ability to teach the young residents and we talk about some of these cases, not specifics, but in generalities to see if how I'm teaching that my own residents are meeting the standard of care.

Ellie: Thank you. I think that shows how medicine is, that just there's constant developments and yeah, there's always something you need to learn. And are there, are there kind of typical medical malpractice cases? Like what sort of medical errors are particularly common? Or is that not something that can be kind of qualified?

Dr Stephen M. Cohen: No, it actually can. So, you know, in my training, because I'm board certified in both general surgery and colon and rectal surgery, and some of the things that I do as a colorectal surgeon are more specific and kind of a niche. Type of surgery or type of patient that a general surgeon either doesn't want to handle or doesn't [00:06:00] want to see because they're complicated, they don't have the training for it.

What a couple of things come to mind is that inflammatory bowel disease, Crohn's disease, ulcerative colitis, complicated patients. There's a procedure called an ileal pouch, anal anastomosis in ulcerative colitis, patients who fail medical therapy, and that's always a question mark. Did they need the operation?

Did they fail medical therapy? How do you define failure of medical therapy? Is that based on the patient not wanting the medication? Is that the patient not tolerating the medication? Is that the doctor giving up and doesn't wanna treat the patient anymore? There's a lot of moving parts and then the operations are different.

Mm-hmm. And the, the one that I mentioned, the ileal pouch, anal anastomosis is a. You know, it's a complex operation. If you've never done it, a general surgeon's not gonna do it. But you take everything out, you create a new rectum using the [00:07:00] small bowel, there's a temporary ileostomy, everything goes well.

Then you close it. But that operation has a lot of complications. 25% of patients get pouchitis, which is inflammation of the pouch. There's a certain percentage of patients at the pouch. You, you know, what we're doing is we're asking. Your small bowel to act like your rectum. And it's, and it's a challenging physiologic prospect, but it works well in about 90% of patients, but that 10% of patients can be an issue, so that's one.

The other thing that I get asked a lot to opine on is all of the anorectal surgery. The, the, to me they're simple, but I've been doing it a lot. And if you have a patient or you have a surgeon that maybe do one that performs one or two hemorrhoid surgeries a year versus a specialist, and I might do 10 a month.

There's a, there's a lot of. Bad [00:08:00] outcomes that can happen that I feel are breach in the standard of care. Mm-hmm. In hemorrhoid surgery, one of the biggest ones is cutting out too much of the Anod derm. The Anod Derm is just that lining of tissue inside the anal canal. It's only about two centimeters, but if you cut too much of that out, you develop a, a very difficult problem for me to even fix, which is an anal stenosis.

And I have had. Lots of patients either that have referred to me to try to fix, 'cause a general surgeon in my town created that problem or asked to review a case to opine on standard of care if that complication occurs. And that's a bad complication. I mean, patients, if it's severe, have to do digital. They have to, you know, use a a dilator to dilate themselves in their anus.

Who wants to do that? I don't wanna do that or, and many times, these patients, it's so [00:09:00] severe and not repairable to the patient's satisfaction. We wind up doing a colostomy, that's a disaster. Taking out the rectum, having a permanent bag from a procedure that. Should not have happened because there are ways that we, I teach the residents to prevent that complication.

And the biggest thing, and this comes up a lot, whether it's the anal rectal cases or the bowel surgery, and I have to explain this to the attorney sometimes, sometimes the attorneys get focused in on. The complication, you know, was the complication recognized and fixed or repaired in a timely fashion?

The first thing I look at when I'm looking at a case, it's not that I'm looking at, was the procedure indicated. I. So think about that for a second. Why? And I tell this to the medical students and residents and they look at me like I have three heads. 'cause they say, well, why would a surgeon do an operation that's not indicated?

Yeah, that's a hard [00:10:00] question to answer. There are different ways to do something. So if you have a hemorrhoid, if I'm looking at a hemorrhoid case and there is a known complication, I'm gonna go back and say, was the hemorrhoid surgery indicated? What does that mean? Everybody with hemorrhoids does not need surgery.

Everybody with he, I have hemorrhoids. They don't bother me. Mm-hmm. You probably have hemorrhoids. I didn't ask you if they bother you, but hemorrhoids are just the normal. Blood vessels that live around the anal canal, so everybody has them, right? But there's different ways to treat it. We don't go right from my hemorrhoids, hurt to surgery.

Of course not. That's not standard of care. We do medical therapy. Them number one, medical therapy. Most people respond to medical therapy. If you don't, then there's office procedures that are not surgery that we can do. 90% of patients that I have seen over the last 30 years do not need surgery for hemorrhoids.

[00:11:00] For some reason, everybody that comes to me, I. Thinks they need an operation. Well, I'm a surgeon. I love to operate, but if it's not indicated, we don't offer it. If you fail medical therapy, then that would be an indication for surgery and, and that's really key when, when you're looking at these cases, and many times the attorney doesn't even look at that.

And when I explain that to 'em, they go, oh, well that's a different kettle of fish. Because it is, because if, if a surgery's not even indicated that, that certainly can be a problem.

Ellie: Mm-hmm. So, yeah. So I'm guessing someone might have carried out the, the surgery completely, kind of safely, but if they've done it when it's not needed that's still, you know, potentially breaching the standard of care that they should give patients.

Dr Stephen M. Cohen: Well, exactly, but remember, the only way that I would be involved or, or that even gets raises the red flag is that there is a complication, right? Mm-hmm. So anorectal is a big one, but the other big one I see is [00:12:00] colonoscopy complications. So, colonoscopy, you know, I'm, I'm board certified in colorectal surgery, so I do lots of colonoscopies, as does a gastroenterologist.

So we kind of compete for the same thing, but I get asked. To opin a lot on what's the most common complication of a colonoscopy is a perforation. It is not common. It's one in a thousand. But if you're the patient with that complication and you wind up with a colostomy, you're not happy, and I will tell you.

A lot of times those procedures are not indicated. There are certain guidelines that physicians, whether it's a colorectal surgeon or a gastroenterologist, need to meet in order to tell the patient or offer the patients a better way to state it, that they need a colonoscopy screening colonoscopy in the us and I'm not sure, in the UK we now start at age 45 [00:13:00] men or women.

Black or white, doesn't matter. Screening specifically means no symptoms, no change in bowel habits, no blood in the stool, no first degree relative colorectal cancer or polyps. If you have polyps, then it's every five years. If they're precancerous. Well, a lot of times patients are being told, and this is what I've seen in cases I've reviewed.

Mm-hmm. You need a scope every year. No, you don't. Where does that come from? That's not what we teach, that's not standard of care. Mm-hmm. So things like that, I, I think is a lot of the more common things that I see that I opine on, the anorectal, the colonoscopies, and some of the specialty procedures that I do specifically.

Ellie: Thank you. I, I think in the UK I might not be completely around this, it's, it's like around 55 when they start screening. But just out of curiosity, because you were talking in the first part of your answer about different diseases, Crohn's being one example and [00:14:00] saying how, you know, maybe for 90% these different medical interventions are fine.

Are there any indicators in patients that they might be part of the 10% or is it just completely I may, I don't wanna say random people, like it might take it might work well with some people and other people just get the consequences. Or I guess, do patients have certain different risk factors?

Dr Stephen M. Cohen: That's a great question, but nobody really has the answer to that. So most, especially in Crohn's, which is inflammatory bowel disease, normally it's in certain locations. In the GI tract, the, the, the end of the small bowel terminal ileum is usually the most common, but it can be in the colon, it can be anywhere from mouth to anus, but most.

Patients present early enough with symptoms, abdominal pain, distension bleeding, nausea, vomiting, that they're alerted that we work them up. CAT scan, colonoscopy, small bowel imaging that we see there's a problem and we start treatment. The indication for surgery. Is really one of four things, and this [00:15:00] is what I teach the medical students and I, I tell 'em to think of the hippo, HIPO.

I learned that as a medical student. See, I still remember in, in any disease, so hippo hemorrhage or bleeding, intractable pain, perforation or obstruction. Whether it's gastric ulcer, peptic ulcer, Crohn's disease, colitis, if you have bleeding, intractable pain, perforation, obstruction, that would be an indication for surgery.

I will tell you that in the last 30 years, I. All of us, me included, are doing a lot less surgery for inflammatory bowel disease, whether it's Crohn's or ulcerative colitis, because the medications are, are, are much better than they were in the old days. It was steroids, steroids or topical five a SA pentasa, those types of things.

Now with the biologics like Remicade and other biologic medications, we're doing a lot less surgery. [00:16:00] So it's, it's, the medications have improved. The, the side effects of the medications have improved and most patients now are getting by without surgery, which is great.

Ellie: Definitely. And on a slightly different note, I've, I've got some sort of figures.

So yeah, in the UK in 2023, 24, that was around, I mean, just under 14,000 clinical negligent claims in the US There's, you know, around 20,000 a year at the stats that I found. So. And kind of a lot of these stats were saying that, you know, these are relatively common. So why do you think these cases are relatively common, and is this a reflection of medical malpractice law functioning well, or is it highlighting a kind of potential problem?

Dr Stephen M. Cohen: Yeah, that's a great question. I mean, the medical malpractice world is definitely not going away. I, I think there's a lot of different facets of that. If you look at the statistics in the US and, and attorneys know this too, so of cases that are [00:17:00] filed, 90% of them settle out of court. 90%. It's a, you know, it's a business and there's a lot of different reasons why It's a business decision.

It's cheaper for the insurance company to settle. It's medical experts, me included, are very expensive. Mm-hmm. There's always a chance once you go to court. That you can lose even with strong evidence. So plaintiff attorneys know that 90% of the time, which is pretty good odds if you're asking me, they're gonna get some money out of the insurance company.

So that's thing one. Thing two, there's really no downside the way I look at it for plaintiff attorneys to file a lawsuit, right? Because a lot of times, I don't know, a lot, maybe 20 or 30% of the time when a plaintiff attorney asks me to review a case, we realize there's no conflict. Do I have time to do it?

[00:18:00] A lot of times, and most experts will receive a retainer fee. Like all of us in order to start looking at it. Many times the retainer fee comes from the patient. The attorney's not paying for it.

So put yourself in the seat of a plaintiff attorney. It's not costing me any money. There's a 90% chance I'm going to get some money. Somebody else is paying for this. Why? Why wouldn't I file a suit if I think it's a good case? Right? So that's thing one. The so, so number. That's probably the biggest thing. The other thing is, is that on the defense side, if, and you know, and I tell, and I told the defense attorney this yesterday, I. The surgeon did nothing wrong.

Don't settle this case because a lot of times you realize it's not up to the attorney. It's not up to me for sure. Mm-hmm. I have no say in the matter, but a lot of times it's up to the insurance company of the carrier. 'cause they, they are all of us that [00:19:00] have medical malpractice insurance in this country.

We sign something if, once we sign up for it that we, we don't have control. If we have a million dollar policy and the insurance company wants to settle and we say, but, but I didn't do anything wrong. I did everything right. Look, I have an expert that said I did everything right. They say, fine, if you go to trial and lose and it's more than a million, you're writing a check for this.

Well, what doctor's gonna do that, right? I mean, from a doctor standpoint, if you can fix something with somebody else's money. I'm paying malpractice insurance. It's like our insurance. Mm-hmm. I have the insurance. Settle the case. Right. So, yep. But from a defense side, the good news is statistically about 85 to 89% of the time, if and when they hold the line, they know that nobody did anything wrong and they go to trial.

85 to [00:20:00] 89% of the time, the case will go for the doctor and against the plaintiff because you know, most. Juries if you have a non arrogant, reasonably looking, not physically, but just if they act normal on a jury stand. Mm-hmm. And say, look, doctors don't wanna hurt patients. I did the best I could. This is the information I had.

I can't foresee the future and I did the best I could mo most juries don't wanna find against the doctor. That's what I have found Now. I certainly have been on some defense cases. That, that the, it went against the doctor for a lot of different reasons, but I, you know, I think the system, my personal opinion, you know, to leave it in the hands of eight or 12 people mm-hmm.

You know, to decide very complex medical issues is not right, because look at it from a jury standpoint. You, you're, [00:21:00] you're, you have very little to no medical background. We assume that. Mm-hmm. Right? Number one. Number two, you're looking at two. Well, qualifi or listening to two well qualified experts, both board certified, both well trained, both have been doing this for 20, 30 years.

Right. Saying exactly the opposite. One said you shouldn't have done it. One said they should have done it. What, how is it, how is it fair for them to figure that out? We argue amongst ourselves as colleagues in complex issues and, and we think we know more than a jury, I hope, in terms of the medical issue, how are they supposed to figure that out?

So it's definitely a crapshoot if and when you go to trial, all bets are Alf and I and I. Don't mean this facetiously, and I tell attorneys this all the time. The truth doesn't matter in a court of law. The truth doesn't matter. It's, it's who does the jury bond with? Do they [00:22:00] like the presentation? Do they come across as not being arrogant, right?

Mm-hmm. And that's a lot of times at the end of the decision that the jury makes, it's not up to the expert, it's personalities.

Ellie: Yeah, I can, I, I can imagine, I think that there's a similar, like a comparison in the uk that, you know, you tend to have like two medical experts saying opposite things and that can commonly problem, but it, it's a judge, not a jury.

But I, I imagine a lot of those issues because, you know, the judge is not going to typically have worked, had a, like, medical career. So it's gonna be sort of, I guess. To an extent, which, which just expert opinion, they find particularly compelling. And that's, I mean, law students in new case study cases, like the BOLO principle and how the courts have tried to deal with this.

So yeah, it's a really, really interesting issue. And so you've spoken about the kind of how many different cases you've been on, so could you like explain a little bit? About what the experience of testifying in cases actually entails like [00:23:00] what the process is, and then whether there's been any like particularly memorable cases.

Dr Stephen M. Cohen: Oh boy. I have a lot of good stories. Yeah. So again, and I, and I have a lot of my colleagues or or, or residents come and ask that they want to be part of this, they wanna be expert witness. And it's, I will tell you it's, it's not easy and I don't make a lot of friends. I. Why do I say that? Well, first of all, I'm not very nice.

No. My wife says I'm nice, but, but in order to do this kind of work, you can't just do one side. I like defending doctors. Why? Why not? Because I've been sued myself and I've had experts upon. Because I felt like I did nothing wrong. So I like that part of it. However, you can't just do one side, and I do about 50% of each.

But if you're gonna do this kind of work, you have to be able to sit across the room. And I have done this before, many times in a deposition, sit across the room, literally three or four feet away from the doctor who is [00:24:00] board certified. Like you are trained exactly like you are. Maybe been in practice even longer than you look at them in the eye and say, you fell below the standard of care and you harmed this patient.

If you can't do that, you have no business being an expert witness. A lot of doctors can't do that, and I don't blame them. It is, you know, and I've learned along the way. I have a stronger personality, as you could probably tell, but it, it is, it is it's, it's a challenge. It's definitely a challenge.

I, I know I. This hasn't happened to me yet, but I know there are plenty of expert witnesses that stopped doing this kind of work because they've had their life threatened by other doctors. How? Absolutely. I mean, it's, you're, you're telling them they fell below the stand of care and they killed a patient.

So, and that happened to me about a year ago. It was [00:25:00] a complicated case. Of a thyroid operation, and I don't do thyroid surgery, but that wasn't the claim. The claim was the postoperative care. So it was a patient elderly patient, African American, a big thyroid goiter that that needed to be removed.

It was performed by a young surgeon. Total thyroidectomy surgery went fine. The next day, there was a rapid response because the patient had trouble breathing. There was a noted, well documented that the, that the, that the surgeon was there. The patient had trouble breathing. All the nurses came. They gave him some oxygen, but they noted he had a very large neck hematoma.

Okay. The treatment at that time was put an ice pack on it and let's just watch the patient about 15 hours later now, two o'clock in the [00:26:00] morning. 'cause nothing good happens at two o'clock in the morning. I tell my kids that all the time. What happens? The patient loses their airway, their heart stops. They run a code, they get the patient back.

The hematoma is larger. The partner's on call at this point who knows nothing about the patient. Whips the patient to the operating room. They find a bleeding inferior thyroid artery that was pulsating. They clamped it. It was too late. He was brain dead. He died. So I opined on the treatment of a post-op patient.

One of the things I used to do was, was stay in the hospital when I was younger, actually not that much younger, about five years ago. Mm-hmm. And take care of post-op patients. So I've taken care of a post-op, the standard of care in a patient with a hematoma, which is a blood clot in the neck. Post neck surgery is, you have to evacuate it.

At the time, not at two [00:27:00] in the morning when the patient arrests and had that surgeon that morning, you know, the patient's airway was okay, but you don't put an ice pack on it. You have to drain the hematoma. All she had to do was, shouldn't say it was a girl, but it was a girl. Take, go back to the operating room, open the incision, drain the hematoma, the patient lives, right?

So during that deposition. Both surgeons literally were three feet away from me with their arms folded. And they can't ask me questions, but if they could kill me with their eyes, I would not be here at this podcast for sure. Mm-hmm. Right. But you have to be able to say, you fell below, you killed this patient.

And that's what I, and that's what I said. They, they killed this patient. We, this, you know, it's interesting because in all of these neck cases. Even in our hospital now, patients go to the bedside with a cricothyrotomy kit it for an emergency airway. If they lose their airway, you [00:28:00] can quickly resuscitate them.

You only have about four minutes. Well, this patient had that kit at the bedside. A, it was never used. And B, this was a preventable complication. So it, it's things like that in terms of. And, you know, opining and really, I wouldn't say sticking to your guns, but just explaining that that's not standard of care.

That case settled both, both surgeons. The, the set, it's not a defensible case. The, the way I look at it, you can't defend it. Mm-hmm. Because it was an easy fix. The other, the other thing that I'll talk about is. Is, and I tell this to the residents, one of the things to try to keep you from getting sued, not necessarily from getting sued, but to try to protect yourself.

Don't fight with each other in the chart. If you have a disagreement with a consulting service, whether it's your cardiologist or emergency room doctor or interventional radiologist, [00:29:00] if you document. I disagree. I think this doctor's doing something wrong. Seriously, just write the check because that you, you can't fight amongst yourself, get on the same team.

You could talk about it verbally, but if you document that, and I cannot tell you the number of times that I see that, and it's just, it's just ridiculous. There was, there was a case of a young guy. Who Hemorrhoids had a hemorrhoid banding one band in his, he was in his, this is a crazy story. 34-year-old whose wife had a, a baby three weeks before had very vague hemorrhoidal symptoms.

A little blood when he wipes that. Was it healthy? No medications. Nothing. He goes to a doctor decided with without doing medical therapy. Right. He went to the next step, so it wasn't even indicated. Mm-hmm. One rubber band ligation, which is tying off the hemorrhoid. [00:30:00] One rubber band.

Dr Stephen M. Cohen: Came back, you know, three days later with increasing pain.

Told him to soak in a hot tub, never examined him. Came back five days later in septic shock. Which, which is a known complication of a band 34. Healthy. He get, he gets to the hospital, you know, he sees the doctor at four in the afternoon. He gets to the hospital at 11 o'clock at night. By the time they do the workup, it's two o'clock in the morning, three o'clock in the morning.

Of course, nothing good happens at three o'clock in the morning. Okay? Here's a young guy with a hype, with a lactic acidosis, a white count of 25,000. Acute renal failure. Tachypnic tachycardic. They do a CAT scan that says, quote, soft tissue edema, no abscess scene. Okay? The call from the ER doctor goes to the colorectal surgeon who's in bed, and here's, there's no [00:31:00] abscess.

Fine. I'll see him in the morning. Treat him. Okay. There's no beds in the hospital. He goes to a back room in the emergency room. He is not seen by a doctor for eight hours. What happens during this eight hours? The nurses did the best they can. He drops his pressure, he gets put on dopamine. He can't urinate.

He gets a Foley. By the time that surgeon gets there at, at 8, 9, 10 o'clock in the morning, you know he's rolls him over. He sees dead necrotic tissue. From sepsis.

Dr Stephen M. Cohen: He gets, whips him to the operating room, de breeds it on the elevator to the ICU. He codes and he dies healthy. 34-year-old. He would be okay. In deposition. Everybody got sued. ER doctor got sued, colorectal surgeon got sued. Hospitals who never saw the patient got sued. The doctor who put the band on got sued everybody. Okay? Mm-hmm. The ER doctor [00:32:00] says, under deposition, I told the colorectal surgeon what was going on. He should have come in.

Mm-hmm. Okay. What did the colorectal surgeon say? He didn't tell me how sick the patient was. I would've come in if he told me right. Everybody got sued. Everybody settled. 34-year-old did not even need the rubber band ligation we're back to, wasn't even indicated. Mm-hmm. And they killed him. They killed him.

It's a, it's a, not, it's an uncommon but not rare complication of putting a band on and that that's, that was a disaster.

Ellie: Yeah, that is, that's such a tragic tragic example of a case and yeah, quite scary to hear. But yeah, that's I guess it shows also when you're kind of being treated for something like that, how many different people are involved in the treatment.

When you're saying that kind of everybody got sued. It's interesting. Yeah.

Dr Stephen M. Cohen: It's funny because in my deposition that that was a long, painful deposition. It took about six [00:33:00] hours and every, every doctor had their own attorney, so they all got a turn to beat me up. Right. It was great. It started with the surgeon, because I'm a surgeon.

The surgeon didn't come in. He came in too late. But it was, it was amazing how they tried to, how they tried to blame the, I swear to God, they tried to blame the patient on what happened and that, and I, and it just, it just irritated me and they know how to get under my skin and that's one of them. Right.

And the reason, how did they, how did they blame the patient? They blame the patient because the intraoperative cultures came back. A rare bacterial organism. It was a clostridial type, and I'm blanking on exactly what it was, but it was rare. Mm-hmm. Right. So they said, well, he, he probably would've died anyway because most people don't have this rare bacterial infection.

Right. Dr. Cohen, have you ever seen this bacteria, Dr. Cohen? And I'm thinking, you know, you gotta be kidding me. It's, it's a little bit hard to keep my cool when [00:34:00] they're attacking me, when they're blaming the patient on something that's clearly not indicated that was preventable. Mm-hmm. So I can get a little prickly at times.

Ellie: Hmm. Of course. I mean, these cases are hugely emotive when they're, you're talking about someone's like life and livelihood and I guess in some cases, just like the standard of life if something goes wrong. And just talking, because I know that for like different medical interventions you've talked about like what the standard of care would be.

But is there kind of a general test for the standard of care in the us Like, I mean, to put it probably in quite simplistic times in the uk. Like you're held to the standard of a reasonably competent doctor. Is there something like that in the us?

Dr Stephen M. Cohen: Yeah, there is. And it's very interesting because there's, there, there's a basic.

National standard of care. And then there may be a jurisdictional standard of care. And I always ask the attorney when I'm opining and I'll explain that 'cause it's a little, it could be a little bit nuanced and that can, that can exclude me. At least The other side will try [00:35:00] to exclude the expert if they're not familiar in the local standard of care.

So in a general definition, in the US of standard of care is what a. Reasonable prudent physician would do under similar circumstances to a similar patient. Okay. Mm-hmm.

Yeah, and there's a lot of nuanced in that because somebody like my, that 34-year-old who has no medical issues versus most of my patients that are elderly, even older than me.

Mm-hmm. Okay. Hypertensive, diabetic, renal failure on a lot of medications, maybe immunocompromised, that's a different ball game. It's what I would do in this particular patient at this particular time, given the information. That's the standard of care most. States in the US, most jurisdictions go by a national standard of care.

However, some places and some jurisdictions will go by a local standard of care. What does that mean? Mm-hmm. Well, [00:36:00] if I'm asked, 'cause I get asked to review cases all over the country. So if I'm asked to review a case in Chicago and I'm just making this up, Chicago, that state or that city may have a local standard of care.

So the other side, if they can win on a technicality. That's a win. Right? They don't care. It's a win. So, so, Dr. Cohen, have you ever practiced in in our state? I have not. Do you know how the surgeons, you know, how do you know the standard of care in our state, Dr. Cohen? So if I default to, well, it's, you know, I'm trained as a board certified general surgeon.

Hemorrhoidectomy, you live in the state, in your state versus if you live in my state, hemorrhoids are hemorrhoid, right? So, mm-hmm. It's the, and that's not as common, but, but there are some jurisdictions where I need to know what the local standard of care is. How do I do that? I've never been to the state.

I don't know. The surgeons in the state. I've never been to their hospital, so I try to compare and contrast, meaning.

Well, your state has, is about the same size as where I am in [00:37:00] Richmond, Virginia. It's about a million plus. The demographics are the same. You, you all have a medical school? We have a medical school.

Your doctors are board certified in general surgery? I'm board certified in general surgery. Mm-hmm. They spend five years in training looking at the same books. The books that we use are the same, so that's how I position it. But again, it's up to the courts and the judge, it's not up to me. So if I can't answer the local standard of care to their satisfaction, decide.

That doesn't want me to testify. If, if they're, if they're picking on me on standard of care, then they don't want me to testify. I'm not good for their, their case, obviously. Mm-hmm. So that's a, that's a badge of honor. But, but they, they will go to the judge and say, we wanna exclude this expert because he is never been in our state.

And sometimes that happens and sometimes you know, I'm not. Attorneys that live in a local standard of care state won't reach out to me if I don't live in their state. So they have to then find an expert [00:38:00] in their local area to opine against a physician to say they fell below the standard of care.

That obviously hinders some plaintiff attorneys because you may not be able to find somebody locally to say that their colleague fell below the standard of care.

Ellie: Yeah. That's really interesting, interesting kind of jurisdictional problem. I mean, how, this, this is probably quite a broad question, but kind of how, like fundamentally different can the standard of cares be or are they just, do they tend to just be like small changes to, to the general test?

I'm trying to think how, like, how different a test could be and how much that would actually change the standard applied.

Dr Stephen M. Cohen: Well, I personally don't think it changes it at all. Right? Mm-hmm. So in other words, if a, if a patient lives in the state of Virginia and I've taken care of them and now they move to a state, Washington state making it up mm-hmm.

That has a lo and the patient and that has the same surgery, how is that any different? So, no, I agree with you. I [00:39:00] think everything should be a national standard of care. If you're opining on, you know, a surgeon doing a procedure that we're all taught the same way. Right. I mean, I trained in Boston. Do you think they train hemorrhoid surgery any different than they do in Texas?

No, it's, it's, it's the same, you know, a lot of the residents that I taught the last 30 years are scattered throughout the country. So you're telling me that I trained a colorectal surgeon to do hemorrhoid surgery. He then moved to the state of Washington and I can't opine on the local standard of care, but I trained that doctor.

Right. So, yes, I, I, I think it's silly, but. It's the rules are the rules and the attorneys have to play by their local jurisdictional rules or their, you know, so it's, it's their issue. It's not my issue. It's their issue really. Mm-hmm.

Ellie: Yes. I guess it's kind of like a legal issue or complication that doesn't necessarily make that much sense when it's actually in the medical, like.

Kind of reality context of where [00:40:00] doctors are trained and and things like that. Right. But to focus, so you, we one of the cases you did talk about like the er, the emergency room, and I wanted to kind of focus in that 'cause you know, practicing medicine, it can be really fast paced and doctors have to make a lot of decisions in emergencies, particularly if someone kind of appears and, and they're in kind of an emergency.

So, I mean, how does the law reflect this and how do cases reflect this and. What is required of doctors when they are acting in an emergency?

Dr Stephen M. Cohen: That's a great question. I will tell you, and I say this even to my emergency room colleagues, they hate when I say this, it's, it's a, it's an easier job for them, I think.

Because if you have a patient that comes in, in an emergency, whether it's abdominal pain, a chest pain, it's, they, they, it's a, it's one fork in the road. For them. Mm-hmm. The, the only the decision they need to make is does this patient stable to go home? Do I need to admit this patient to the hospital?[00:41:00] 

Once the decision, if I stabilize you and I admit you to the hospital, I'm done with you as an ER doctor. Mm-hmm. I'll put my ER doctor hat on, which I'm not. Right. Because once I decide you need to be admitted, then it's the team taking care of you. Mm-hmm. The cases that I have reviewed that I have opined on.

The care in an emergency room is either the patient, there was enough clinical signs and symptoms, that admission would've been warranted and there was a disaster when the patient went home or, and I just got done with a case like this. There was a post-op patient. They never called the surgeon to ask their advice.

Why would you do that as an emergency room doctor? You didn't do the surgery. You're not trained in the surgery. A phone call. Do you know how many times we get called by the ER doctor? That that's fine. Call us once you make the call. Just like in that last case he called. He called, but. [00:42:00] You know, again, they fought with each other.

Once you make the call there, there's somebody else has taken the liability. Why in the world as an ER doctor would you take the liability of somebody else who did the case? You didn't decide the surgery is indicated, right? You may not. Mm-hmm. Have the experience to know what's a normal draining wound versus it.

Could it be an interabdominal abscess that turns into sepsis? Why are you deciding that? Mm-hmm. It's. It's a, you know, I know my ER colleagues will say it, it, that's a simplistic approach, but, but it's not. 'cause if I'm an ER doctor, if there's any question I'm gonna, I'm gonna say this patient should be admitted.

Dr Stephen M. Cohen: So it's interesting it, so I've been at our facility here in Richmond for about seven years and, and this is the only hospital that I have been in. I've been in a bunch of hospitals in the last 30 years, where if the ER doctor calls either a surgeon or a medical doctor, I. Mm. And the ER [00:43:00] doctor says, I think this patient should be admitted.

And me at the receiving end say, I don't think so. Guess who wins the fight? The ER doctor. The ER doctor can directly admit the patient to the floor. And I thought that was the dumbest thing ever. But let me tell you, it's not the dumbest thing ever.

Dr Stephen M. Cohen: Because somebody's gotta take responsibility. It's not, and I, you know, the more I real, it's not fair for me sitting at home at two in the morning.

I'm not standing in front of the patient. I'm not examining the patient. If somebody there real time feels like that, they should be admitted. Why not? Because only something bad's gonna happen if they go home and we guess wrong. We don't wanna guess wrong. Mm-hmm. Obviously, right? We're there to take care of the patient, so.

That that's really in our facility has changed the liability and puts it back on the team, which is what's the worst case scenario if that happens? The patient is, is not happy about being admitted. They can sign out a MA, [00:44:00] then nobody has liability, but they usually will be admitted the next morning we examine labs are better, we send you home.

Mm-hmm. Why is that a problem? Right. So. I, I think in the emergency care, gunshot wound type of thing, if something bad happens, every, those cases I don't usually see. Mm-hmm. It's the either, you know, there was a CAT scan that showed a problem, the patient had a white count, the patient didn't get better with your medical therapy, why'd you send them home?

Mm-hmm. Or, or not calling the, the appropriate surgeon in my case.

Ellie: Oh yeah. That's really interesting. So I guess it's almost, if again, if I was, I'm probably oversimplifying this, but like the main, the kind of important thing to do if you were thinking about liability is just making sure you identify that it's.

Enough to be an emergency and you should admit the patient. And then it's not like you have to kind of be their whole patient care plan when they arrive at the the er.

Dr Stephen M. Cohen: Right. And it's [00:45:00] very funny you say that. 'cause I've said that before. I don't expect the ER doctor to make the diagnosis. That's not really their role.

I mean, they can, I mean, they can make the diagnosis of urinary infection, kidney stone, diverticulitis. I got that. But if you're not sure and there's enough clinical data. Or the pain's not better with your GI cocktail, the pain's not better with morphine, and now you're giving Dilaudid and you're still a 10 over 10 pain.

Take a step back. What are you missing? You don't have to make the diagnosis in the er, it's are you going home or am I admitting you? If you're going home, what's the follow up? Do they have appropriate follow up? If I'm admitting you, what? Service, medicine, surgery, gi, doesn't matter. Mm-hmm. It's, I think some, some ER doctors will get themselves in trouble by trying to make the diagnosis and doing everything, and they, mm-hmm.

And they don't have to do that. And it's interesting [00:46:00] because again, I'm not an ER doctor, so I can't opine on the standard of care of an ER doctor. So a lot of cases like that I'm opined to me you know, simply on causation. Mm-hmm. Meaning if you get a call like this, doctor, what, what would you have done?

Right, or mm-hmm. What would been prevented? Would there have been intervention earlier and usually. Cases like that, the, if it's on the plaintiff's side, they will hire an ER doctor to opine on standard of care. But I've also defended surgeons at our ER doctors as well as there was no signs and symptoms of anything, right?

Mm-hmm. There was a great case. It was an incarcerated hernia. Umbilical hernia, ventral hernia. A long time ago, patient came in, abdominal pain, gets the CAT scan. No fever, no white count. Improved in the er. Reduced the hernia was a small loop of, we don't know what it was reduced. The CAT [00:47:00] scan showed it wasn't incarcerated, but they came in with an incarceration.

It was either a loop of bowel or, or omentum stuck in the hernia by the, you know, hour, two hours goes by, typical er by the time you get the CAT scan. It did not show an incarceration, just showed the hernia, nothing stuck. Patient was fine. No fever, no white count. Surgeon came down to examine. It was the middle of the day, non-tender.

Patient says, I'm fine. No nausea, no vomiting. Patient goes home. Mm-hmm. Eight hours later, two in the morning, you're getting a theme. Everything happens at two in the morning, gets a, gets a recurrent incarcerated hernia, goes to a different facility, it was closer to their house. Mm-hmm. Winds up with dead bowel emergency surgery.

I don't believe the patient died, but a lots of surgery. They sued the, the surgeon who saw the patient in the ER that they shouldn't have gone home. And I'm going, what are you talking about? I get called like this all the time to see patients. Tell me the indication for admission. [00:48:00] Everything was fine.

Well, you should have anticipated it was gonna recur. Not eight hours later, that's the patient who was given follow up to see the surgeon the next day to plan elective surgery. We do that all day long. Unfortunately, even me saying, don't settle this case. Like I said, I have no say in what it, they settled the case because it was easier.

Mm-hmm. And it just drives me crazy because. I, I feel like in cases like that, I'm the one getting sued, right? Because I, I see patients like this all the time. I make decisions like that all the time. Am I gonna get sued for doing the right thing? Unfortunately, that can happen.

Ellie: Yeah. That's really interesting.

And actually, just quickly on that, because we've spoken about how common it is to settle a case, I guess for my lack of knowledge of how it works in the us. When you're settling the case, does there have to be any admission of like liability or fault on either side, or is it kind of just putting the case to rest?

What does settling the [00:49:00] case kind of fully mean for medical malpractice?

Dr Stephen M. Cohen: And that's a good question. It really just means putting the case to rest. It's settling it, there's no, it's not like a criminal kind of case. So you just, you know, you agree to settle sometimes. Sometimes the insurance company says, we're gonna settle you, you.

So the, the times in my cases that I've settled, I do sign something. Mm-hmm. You know, so you sign something that's settled. However, we do have a national practitioner data bank. Repository, and I don't know if you guys have that across the way, but any any case now that settles for any dollar amount, it used to be a hundred thousand dollars or higher.

Now it's even a dollar. So if I get sued and I settle the case for $1, that gets reported to the National Data Bank, what does that mean? Well, a lot of doctors fear being on that because. Anytime you apply for privileges. Mm-hmm. You know, that can come [00:50:00] up that yo you were reported and it's it's public knowledge.

They can see my doctor was sued. Well, there's explanation of why that is, right. I don't yet, I think the National Practitioner Data Bank, I don't think attorneys can get access to that. I don't think patients can get access to that. But it is on there. Doctor's fear being on that, but it, it certainly doesn't really affect anybody.

I've never seen it affect anybody. If you get sued a lot. One suit, two suit, three suits. I know Dr. Masu a lot of times. Mm-hmm. It, it does. You know, most insurance companies, you can still get malpractice insurance. Some of the big egregious 2020 $5 million settlements. You may have trouble getting malpractice insurance.

It usually doesn't affect the provider.

Ellie: Okay. Thank you. Yeah, that's really helpful kind of picture to, to lay out and Yeah, I think you, I think in the UK it's at my previous uni I [00:51:00] knew a lot of the medical students and I think like it's understandable that throughout your career you're going to face it, like at least some time being sued.

As we said, it's, it's relatively common. As a kind of final topic, so a little slight kind of shift in focus. So assisted dying, like euthanasia legislation. Is, I mean, it's a very kind of current topic right now in the uk. And you know, 10 states in the US have like allow assisted dying to different extents.

And it's big in the UK right now because there is a bill on assisted dying, being debated. Do you think that, and obviously this is all just kind of predictions, but could this, and potentially how could this impact medical malpractice cases?

Dr Stephen M. Cohen: Yeah, that's a great question. So the whole euthanasia thing, it, it, it's, it's very emotional for everybody, right?

It, it's, it's like abortion. It's like religion. It's like politics. It's one of those things you're, you take a stand for against, and, and you know, I don't know that it's really going to, change the [00:52:00] malpractice. I, the, the cases that I've seen come across that I've read about is not the actual euthanasia decision making.

Okay. Because usually there's a lot of steps that have to go through before you get there. You have to have, you know, two doctors sign off on it, just like a DNR do not resuscitate order. You have to have other family members agree. You know, but there's always that one family member a year later that you know, is irritated at somebody that they weren't involved and they wanna create a lawsuit.

But that's, that's pretty rare. The issue where I've seen it come up is there's a botched or there's a problem with how it is done and somebody feels the patient suffers. So it's how you do the euthanasia. I see. Where you're gonna get more medical-legal action. Somebody doesn't like the way it happened or the drugs weren't given, or it didn't go quick [00:53:00] enough.

Right? Hmm. So I think for those of us that. That are in that space, and I'm not one of them, but the palliative care doctors that deal a lot with this, some of the mental health doctors that may be involved in these things, you may see more claims, but I think it's really gonna be how it's carried out versus was it, you know, should it have been carried out?

Dr Stephen M. Cohen: And you know, it. And again, in my own personal experience, having a mother who has been asking me how she can kill herself. 'cause she doesn't like the way she lives and feels 'cause she, you know, miserable autoimmune disease and pain all the time. I. Ho on ho O2. I can see getting to that point, I mean absolutely.

So it's easy to say if you don't have a loved one or you see the kinds of things that we do to patients in the hospital. We torture them. We torture them. Mm-hmm. And it's, and it's, you know, I cannot tell you [00:54:00] the number of times that I've had discussions with family members do everything possible. Do everything possible.

Okay. You have a brain, you know, a qualified brain death based on all criteria. Mm-hmm. You have somebody who's on a ventilator machine, you're keeping their heart alive with medications, but there's an emotional attachment that I don't have as the doctor, and I get that. Mm-hmm. And I get that and to do everything you can.

If there's any sliver of hope, we don't play God as doctors. Some doctors think they're God, but we don't play God. So we do the best we can, but it's a definitely a challenge. I think the fields of palliative medicine, which is really, you guys have palliative medicine doctors?

Ellie: Yeah, we do. Yeah. Palliative care.

Dr Stephen M. Cohen: Yeah. I, I think that's really been, we didn't have that 30 years ago. That's, I didn't train with pale, but they, they look at things in a different aspect than I [00:55:00] do as a surgeon. It's, we know the inevitable outcome. We're all gonna die. What can we do? And they, you know, it's the talking doctors. They're not mental health, but they're, they, they are in the trenches.

They know the disease process. They look, they look at it, they can explain to a family member. We know this is inevitable. We wanna make, you know, what are the patient's wishes and getting them involved early enough so the patient themselves can have that conversation rather than somebody who's emotionally involved for a different kind of reason, I think has been a really big help and will prevent these kinds of medical malpractice because the palliative medicine doctors are involved and they can outline for everybody.

What the issues are, what we can do for your particular family member, for your patient, for your loved one, so they can die with dignity.

Ellie: Mm-hmm. Yeah. Thank you. That's really interesting. Kind of, yeah. Seeing. [00:56:00] That the cases might be around how it's actually administered. 'cause there's been a lot of debate about that in the uk, kind of like the correct way because I, in my understanding, obviously it's still very much just being debated and that there's no indication that it will be passed as an act.

But I think the, like palliative care is quite separate from our debate unassisted dying as in like they're, they're seen at the moment as quite like separate areas, although obviously they're both related to that end of life care. But thank you. That's really interesting hearing about potentially some cases in the US and something to think about for, for the uk And thank you so much for, for coming on Law Talks.

Dr Stephen M. Cohen: Thank you so much. I appreciate the opportunity. Thank you.

Ellie: Thank you.