Another thought on the Dick Schaap lawsuit

Walter’s entry below on the Dick Schaap verdict misses a fascinating part of the case. While Schaap’s family lawyer at trial blamed three doctors for failing to diagnose lung damage from use of the medicine amiodarone (and the jury mysteriously held one doctor negligent while exonerating the other two), just two years earlier, the Schaap family and its lawyer had a different story to tell. Then, the family announced, Dick Schaap was killed because of an infection caused by the hospital’s lack of adequate hygiene standards. Unfortunately for the Schaaps, the theory didn’t stand up and the hospital was dismissed from the case, but not before ABC Primetime Live credulously reported in 2003 the supposed scandal of the hospital’s failure to prevent a “velociraptor”-like infection.

It was a case study of what can go wrong in American health care today, said the family’s lawyer, Tom Moore.

“If you ever speak to a surgeon, ‘Doc, what can I expect with my hip replacement?’ — at the top of the list is infection, post-operative infection,” he said.

(The CBS Early Show repeated the story a few days later: ask yourself if you could predict from that news coverage that the hospital would be vindicated before trial.) Without being able to tell the jury about germs that act like deadly dinosaurs, Moore invented a new theory and settled for putting Billy Crystal on the stand to wow the jury with tales of Schaap’s generosity and talent. The defense lawyer, Mark Aaronson, seems to have put his finger on the matter:

“Is everybody who dies in a hospital the victim of medical negligence?” he asked rhetorically. “So ultimately, a theory had to be concocted in front of a jury in order for a claim of damages to be made.”

(Andrew Jacobs, “Jury Deliberates Lawsuit Over Death of Dick Schaap”, NY Times, Jun. 23).

Interestingly enough, to this day, the Center for Justice & Democracy cites the ABC Primetime Live broadcast as an argument against medical malpractice reform—as well as a lawsuit brought by the family of Freddy Prinze, Sr., against his psychiatrist for failing to prevent Prinze’s suicide. It’s telling how weak the arguments against malpractice reform are when the anecdotes an anti-reform organization chooses, out of the thousands of cases possible, demonstrate the need for reform.

You may recognize the name of Tom Moore from his pyrrhic results in the Libby Zion malpractice trial broadcast on Court TV.

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