In the shadow of a glass mountain

One nurse observes how the fear of lawsuits causes healthcare professionals to neglect patients.


Lisa Ochs
June 19, 2000 11:00PM (UTC)

"Who do you have?" the night shift nurse asked me. It was 7 a.m. and I was pulling my kardexes for the day. I showed her my assignment and she pointed to one room number.

"Be careful," she said. "They're suing the hospital."

I thanked her neutrally for the heads-up and glanced in the half-open door, where I saw a woman in her 80s, curled up on her side, asleep.

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I wasn't sure how to work more carefully than I did ordinarily. I had seen nurses tape over their last names on their hospital identification so that they couldn't be named in a lawsuit. I had seen nurses refuse to care for certain people. I had seen doctors hand over patients to colleagues when they had reached their limit. I decided to just be particularly nice and friendly. And when I met the patient's two daughters, they were so pleasant and helpful that I wondered whether the night nurse had been mistaken. They helped me bathe their mother; they carried laundry to the carts outside. They even emptied water basins and trash cans. They stayed with their mother all day, combing her hair, talking with her, rubbing lotion on her. What on earth, I wondered, could have made these devoted daughters so angry that they had consulted a lawyer?

I never learned what Mrs. Evans' lawsuit was about; I don't even recall why she was originally hospitalized. What I remember, above all, is the anger of the other nurses on the floor at the family's decision to sue, which manifested itself in avoidance of and neglect of the patient. If I was not around, for example, no one answered her call light.

"I don't want to go in there. She might sue me," they would tell each other, laughing but only half-joking.

And after a couple of days assigned to Mrs. Evans, during which time each nurse in turn told me that she had previously injured her back lifting the woman, I could no longer obtain assistance in transferring my 90-pound patient from her bed to the wheelchair. Every single nurse flatly refused to help me, and the charge nurse allowed this.

I don't know what eventually happened to this patient or to her lawsuit. I do know that she spent weeks on the floor after her family had submitted their lawsuit, suffering the retribution of a staff angry, hurt and afraid of her. I know that the nurses had never bothered to learn the names of the two daughters keeping vigil at their mother's bedside. And I know that the rage and frustration that had sent them to a lawyer in the first place could only have been compounded by the icy treatment their mother received. A mountain of distrust and anger had grown between the patient's family and the staff (the patient herself, a good-natured and somewhat forgetful woman, seemed oblivious to all this), and the hospital's responses, self-protective though they may have been, only caused this mountain to grow.

I was reminded of a fairy tale I read when I was a child, in which a princess is imprisoned by her father atop a glass mountain. Suitor after suitor comes courting, charging the mountain on horseback and then tumbling down, unable to gain purchase on the slick surface. The princes and princess could see each other, even talk to each other, nearly touch. But the glass mountain, so clear it was barely visible, kept them apart. In the end, one resourceful prince manufactured a homemade pair of wings and clumsily flapped his way to the top.

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I have many friends who are nurses. We spend a great deal of time together talking about work: the difficult I.V. we could (or couldn't) start, sad and funny stories heard at the bedside, the patient sent home too soon, the $50 instrument our hospital refuses to buy, the way we would do things if we ran the hospital, or the department of public health or the country. We don't talk much about liability. We don't mention malpractice, except in whispers or jokes. But it's always there, in the back of our minds, even if we're only half-aware of it.

"Lawsuit" is the word underlying the way I was taught to chart in nursing school, the way we were all taught. I have written countless notes that read something like this: "Patient has apical pulse of 125. MD notified. No new orders." Behind the bland words is the unspoken premise that if my patient has an arrhythmia that is missed -- well, at least I notified the doctor. At least I did my part and cannot be blamed. One nursing school instructor told me that as I chart, I should imagine how my words would sound read aloud in a courtroom. Solid advice, no doubt, but certainly disturbing.

The implicit threat of liability not only colors the way we chart but the way we look at patients, talk to them, care for them. When I take a report at the start of shift, more than once a patient has been described to me as "an attorney," or as having "a son who's an attorney," as if this were a medical diagnosis. Do I act differently around patients who are attorneys? I try to treat all patients with equal care and respect, but I doubt I succeed entirely.

And how much do we alter our behavior when we feel particularly scrutinized? Several years ago, the unit where I worked discharged a patient to a long-term-care facility about 25 miles from the hospital and across a bridge. The patient, a woman with advanced AIDS, was near death and had no nearby family. She was only semiconscious when the ambulance picked her up in the morning.

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Not an hour later, we received a call from the driver: The nursing home had changed its mind. It refused to receive Flora, and the ambulance was compelled to reverse directions in the middle of the bridge and return the unfortunate woman to us. As we lifted Flora into the same bed she had vacated an hour earlier I remember that, along with the outrage and sadness I felt, was a tiny spark of relief that there was no family beside me, witnessing this treatment of a dying woman, and that Flora herself was not really cognizant of where she was or what was happening.

Suppose Flora had been an attorney, or had had a family member who was a politician or a hospital trustee? Would we have transferred her out at all when it was evident she did not have long to live? Or would we have moved her into the spacious, sunny corner room, known to staff as the "VIP Room," furnished with couch, refrigerator, table and chairs, with plenty of room for family to spend the night? I don't think we would have given Flora more gentle and conscientious nursing care than we did, but perhaps, with more eyes on us, that aborted ambulance journey would have never taken place.

Unfortunately, all of us in healthcare know that mistakes often do occur in medical settings. Patients can be severely injured, even killed, through medical errors. Equally frightening is learning how secretive institutions can be about their mistakes. One study, which interviewed oncology nurses, revealed that chemotherapy medication errors were noted by 63 percent of healthcare workers, but only 3 percent of these were reported to drug manufacturers or to national databases. Institutions themselves often do not know how many errors occur on-site. One study found enormous discrepancies between what hospitals believe their medication error rates are (two-tenths of a percent) and what they actually are (a whopping 10 percent).

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If this weren't enough, all indicators point to an increase in errors in American healthcare institutions. A 1997 study in Albany, N.Y., found that an "adverse patient outcome" incidence at the studied medical center nearly quadrupled between 1987 and 1995. A pivotal and controversial study in the Lancet found that medical-error-related deaths in the United States increased 2.57-fold between 1983 and 1993.

As a nurse I have ambivalent feelings on reading about such studies. It's frightening to be reminded of how easily such terrible accidents can occur. On the other hand, you can't be paralyzed by fear and do your job well. But until I was named in a lawsuit myself, I never knew how it felt to be embroiled in a Kafka-esque war over a medical error.

I had administered a drug that had been ordered for my young patient, Damon, as directed. As it turned out, though, the medication had been ordered inappropriately: Damon had never before taken it and he had a strong allergic reaction. Although he quickly recovered and was discharged without complications, he was furious that the medication had been ordered for him in the first place. Despite this, however, Damon and I got along well and had a pleasant, joking relationship during the several days I cared for him -- until I walked into his room to hang an I.V. bag and saw an attorney by his bedside.

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Suddenly, I felt stiff and self-conscious in my baggy scrubs and messy ponytail beside the lawyer in his neat suit and glossy tie. I felt his eyes on me as I hung the I.V. bag and my hands fumbled as I reset the pump. When Damon introduced us, I shook his hand and smiled, careful to meet his gaze, but could hear what I imagined was going through the attorney's mind as he smiled and greeted me. "Oh, so this is the one -- the stupid, incompetent nurse."

As I quickly tidied the room, Damon and his attorney chatted. "I like Lisa," the patient confided, as if I were not there. "Because even though she did something wrong, she admitted it." At this point my anger flared and I damaged the little credibility I had managed to establish by snapping: "I didn't do anything wrong. I gave you a medication which the doctor ordered."

The Nuremberg defense, of course, and one to which no self-respecting nurse can resort. But the presence of the pleasant, well-dressed attorney at my patient's bedside had changed my feelings forever. I had liked Damon, had deeply regretted giving him the medication and had enjoyed caring for him and trying to finagle for him his favorite foods and a working television. Now, distrust and defensiveness were mixed into my feelings. Now he was no longer just an unfortunate young man but a bomb that might explode in my face at any moment.

Later that day, the risk management nurse drew me into the nursing office and took a statement. She asked me over and over whether I had said, as Damon claimed, "It was a mistake that that medicine was ordered for you."

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"Did you really say that?" she asked me, as though the mistake lay in my words, not in the actual administration of the medication.

I could not remember exactly what I had said to him. I wasn't accustomed to weighing every word I said around a patient and mentally filing it away. But so ingrained in me was the underlying wariness of liability that I was sure I had never used the word "mistake." I don't think I have ever heard that word used to a patient, except the morning a patient received her next-door neighbor's medications -- and the patient's daughter saved the pill wrappers as evidence.

The guarded attitude that keeps the words "mistake" and "error" from our lips also holds back the healing and human phrase "I'm sorry." People who sue are usually angry. They feel mistreated and neglected. An apology can pour a great deal of water on the fire. But too many of us withhold apologies, afraid that an apology is an admission of error -- a foothold for evidence. ("See? She apologized. That shows she must have done something wrong.") Ironically, very often the dignity of a respectful apology is what a patient wants most: an acknowledgment that something unfortunate occurred and that you regret it. A 1996 survey found that patients were more likely to contemplate a lawsuit if mistakes were not revealed.

I once went to my doctor and complained of an itching head and a rash on my neck that was keeping me awake at night. After having been seen and misdiagnosed by three different physicians (allergic reaction, sun exposure, contact dermatitis), and placed on 10 days of prednisone, I diagnosed myself -- with head lice.

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I was annoyed when I wrote a letter to my HMO, describing the repeated misdiagnoses and subsequent long delay in treatment. Raw from my recent experience with Damon, I labored to write a gentle and humorous letter, distributing blame on "systemic problems" rather than specific physicians. I told the HMO that, as an R.N., I did not expect my healthcare providers to be infallible. However, when months passed and I did not hear a word back, I progressed from annoyance to anger. And when I finally received a carefully crafted form letter that had obviously been wrought by the in-house attorney, I felt insulted and demeaned. I had no intention of suing anybody for head lice; I just wanted them to know what had happened.

Then a physician who had received a copy of my letter on behalf of his department called me at home several days later. As he apologized profusely, my anger melted away, shattering the glass mountain that had grown between us.

"I am so sorry," he said. "We really screwed up." Holding the phone, I felt myself relax and instantly forgive. That was what I had been waiting for all those months -- not judiciously selected phrases from legal department to patient, not an offer for mediation or financial settlement -- just a simple, heartfelt apology from one human being to another. Insofar as legal action contributes to a world with fewer medical errors, more justice and more careful work, it is a crucial component of healthcare. However, like hydrochloric acid -- of vital importance in the stomach but extremely destructive elsewhere -- legal action and the threat of liability can corrode the relationships between patients and caregivers. It is up to all healthcare professionals not only to work as carefully and compassionately as we can but to foster an atmosphere of respect, and to be worthy of the trust our patients place in us.

Listening to my doctor's apology I suddenly recalled the moment I first decided to become a nurse. I was a 23-year-old hospital patient, sharing a double room with a dying woman. She called me to sit on her bed and make some last-minute additions to her will. As I wrote down her instructions on a pad -- the coral necklace to be given to one relative, the round table to another -- I felt honored to be a small, helpful part of this awesome event. We rang for the nurse for a Bible and, as she asked, I read some psalms. I don't remember weighing my words except to consider which might be the most comforting ones. It certainly never crossed my mind to imagine what they might sound like "read aloud in a courtroom."

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Lisa Ochs

Lisa Ochs is a nurse and writer living in San Francisco.

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