Can lives be saved with lessons learned from a space pioneer’s botched care?

armstrong-240x300Neil Armstrong served as a naval aviator, test pilot, federal administrator, and a university professor. He earned his place in history as space pioneer — the first astronaut to walk on the moon. The American hero, who spoke the legendary phrase about “one small step for man and one giant leap for mankind,” also now offers a textbook case about nightmares in health care. Can others avoid these by learning about what happened to him?

As the nation celebrates the 50th anniversary of Armstrong’s Apollo 11 flight, an anonymous tipster has disclosed information to two news organizations that his death was due to botched care. His family, which included a lawyer who represented their interests, reached a $6 million settlement with the community hospital involved.

Armstrong was known for keeping out of the media and public glare. His family kept that tradition in keeping private how he died in 2012, why, and the tense negotiations that resulted in the sizable payment to them by the hospital. Full information about his case may never be fully disclosed. But it already provides a possible series of check points for patients to protect themselves and their loved ones in dealing with doctors and hospitals:

Armstrong’s case also underscores the importance of malpractice claims in the civil justice system and how these serve us all best if they are made open, public, and transparent.  The secrecy that until recently cloaked the Armstrong family’s settlement served no public interest.

When bad things happen

The New York Times and Cincinnati Enquirer articles describe the cascading problems in Armstrong’s care. He was 82 when, as he wrote to his biographer, he went to doctors for what he thought was bad heartburn (gastric reflux). They determined, instead, that he had blockages in his heart arteries.

He had choices for what to do next.  He might have gotten a second opinion about his case. He might have tried drugs to ease his discomfort and help unclog the blockages. Instead, he opted for bypass surgery. And surgeons rushed to perform it at a local hospital. The procedure itself may not have been problematic. It also may not have been necessary, experts say. But Armstrong also received a temporary pacemaker to assist his heart afterward.

According to medical records, disclosed by a tipster and as reviewed by experts, a nurse apparently tugged at pacemaker wires that (routinely) protrude through a patient’s chest. This typically is done when the temporary devices are removed. In Armstrong’s case, the issues now abound: Why was a nurse and not a surgeon removing his wiring and pacemaker? And why was this done in a patient room and not a special treatment area? The action appears to have torn heart tissues, causing him to bleed internally and extensively. His blood pressure plunged.

But, inexplicably, his care givers took Armstrong not into an operating room, where surgeons could have opened his chest, stopped the bleeding, and dealt with dangerous clotting. Instead, they took him into a catheter lab, a treatment area where surgeons, armed with imaging equipment, most often deal with minimally invasive placement of tiny tubes in the heart and circulatory system. Experts who have reviewed the case say this was a fatal decision for Armstrong, delaying the emergency care that might have changed outcomes in his case.

After struggling for a week, he died — and then began the negotiations by his furious family, who believed he had been mistreated.

The hospital denied any wrongdoing. It still does.

The Armstrong family, however, had means of persuasions that few potential claimants do. They reminded hospital officials that Armstrong was never a publicity seeker and had not sought to cash out on his fame. They wanted to ensure his heirs would be taken care of — and they insisted that a key part of any settlement would be the hospital’s undertaking a full review of his poor care and fixing wrongs.

The family, as talks ensued, also told the hospital that major events (the 45th anniversary of the Apollo flight) would be upcoming to honor Armstrong and that the institution could suffer giant damage to its reputation if they disclosed all they knew about his care.  (That borders on, if it doesn’t cross entirely, the ethical and criminal restrictions on lawyers trying to extract money from someone to avoid bad publicity. It’s called “extortion.” Recall how lawyer Michael Avenatti was recently arrested and indicted for threatening litigation against Nike.)

The hospital talked the family down from its original demand of $7 million and settled for $6 million. The case record was sealed and the parties, fearing the settlement could be upended, have declined to discuss the recent disclosures.

In my practice, I see not only the harms that patients suffer while seeking medical services, but also their struggles to win justice, be treated fairly, and to start to be made whole after suffering significant damage due to bad or botched medical care. Medical malpractice suits provide a key means to assist the injured and to improve the health care system, though doctors, hospitals, and insurers have long campaigned with counter factual arguments to malign this crucial constitutional mechanism.

Problems with secret settlements

It is understandable, though ultimately unacceptable in my view, that malpractice cases may include secret settlements. I and my law firm have long been outspoken about how such agreements not only hurt patient safety but also harm the individual patients we represent. We argue we should avoid having clients sign off on a settlement that silences them from talking about a life-changing event. You can read about our stand on our website and watch a video by me talking about the issue. 

We plaintiff lawyers do have weapons to fight back against demands by health care institutions for secrecy. I’ve given many talks to lawyer groups around the country about this. I explain to them that a growing number of jurisdictions say that overly broad secrecy clauses are unethical and violate lawyer Model Rules of Professional Conduct, especially Rules 3.4(f) and 5.6(b). Both Maryland and the District of Columbia now say it’s unethical for lawyers to agree to cover up the public record facts about a legal case.

My own practice in settling cases is to agree to keep the amount confidential, since that’s usually in my client’s best interest, but to insist that the public record facts of the case must stay public. That’s the best balance for public safety and the rights of the individuals involved.

As growing research underscores, a slice of bad doctors generate a significant portion of malpractice claims — with a not small number of these “frequent flyers” hit with not one, not two, not three, but sometimes as many as five sizable lawsuit losses. They still keep their licenses and go on practicing. This is bad for patients, the profession, and the health care system. Doctors, hospitals, insurers, and licensing boards need to get these bad docs out of the business. Malpractice actions aren’t easily or lightly pursued, despite what doctors may say. If patients go through what may be a difficult and even scary process to demonstrate how doctors harm them, other people who might be in these practitioners’ care deserve to know.

Rejecting false ‘reforms’

Instead, doctors, hospitals, and insurers donate to politicians and cry to the public about false “skyrocketing medical malpractice insurance rates,” and “tort reform,” especially measures that make it hard for medically injured patients and their loved ones to pursue cases in civil courts. To their credit, judges are often finding unconstitutional the array of blocks that lawmakers have tried to put up against malpractice case.

In staunchly conservative Utah, the state’s highest court has just nixed such an obstruction — lawmakers creating and trying to empower administrative panels to screen and reject harmed patients’ malpractice claims, including requiring them to get sworn statements from doctors as to whether medical claims might be bona fide. The problem occurs, however, when such panels put up excessive obstacles, then go about the task of deciding themselves the legal sufficiency of cases. That’s a role reserved under the state and federal constitution to the judiciary, Utah justices decided.

The state justices did not strike down the whole law on malpractice administrative panels but said their role now may be best rolled far back. Good for them. But as this case and Armstrong’s shows, we’ve got much work to do to ensure a key constitutional mechanism works as well as it must for the public good.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information