THE MALPRACTICE MESS.(medical malpractice lawsuits)

It was an ordinary Monday at the Middlesex County Superior Court in Cambridge, Massachusetts. Fifty-two criminal cases and a hundred and forty-seven civil cases were in session. In Courtroom 6A, Daniel Kachoul was on trial for three counts of rape and three counts of assault. In Courtroom 10B, David Santiago was on trial for cocaine trafficking and illegal possession of a deadly weapon. In Courtroom 7B, a scheduling conference was being held for Minihan v. Wallinger, a civil claim of motor-vehicle negligence. And next door, in Courtroom 7A, Dr. Kenneth Reed faced charges of medical malpractice.

Reed was a Harvard-trained dermatologist with twenty-one years of experience, and he had never been sued for malpractice before. That day, he was being questioned about two office visits and a phone call that had taken place almost nine years earlier. Barbara Stanley, a fifty-eight-year-old woman, had come to see him in the summer of 1996 about a dark warty nodule a quarter-inch wide on her left thigh. In the office, under local anesthesia, Reed shaved off the top for a biopsy. The pathologist's report came back a few days later, with a near-certain diagnosis of skin cancer--a malignant melanoma. At a follow-up appointment, Reed told Stanley that the growth would have to be completely removed. This would require taking a two-centimetre margin--almost an inch--of healthy skin beyond the lesion. He was worried about metastasis, and recommended that the procedure be done immediately, but she balked. The excision that he outlined on her leg would have been three inches across, and she couldn't believe that a procedure so disfiguring was necessary. She said that she had a friend who had been given a diagnosis of cancer erroneously, and underwent unnecessary surgery. Reed pressed, though, and by the end of their discussion she allowed him to remove the visible tumor that remained on her thigh, only a half-inch excision, for a second biopsy. He, in turn, agreed to have another pathologist look at all the tissue and provide a second opinion.

To Reed's surprise, the new tissue specimen was found to contain no sign of cancer. And when the second pathologist, Dr. Wallace Clark, an eminent authority on melanoma, examined the first specimen he concluded that the initial cancer diagnosis was wrong. "I doubt if this is melanoma, but I cannot completely rule it out," his report said. Reed and Stanley spoke by phone on August 10, 1996, to go over the new findings.

None of this is under dispute; what's under dispute is what happened afterward. According to Barbara Stanley, Reed told her that she did not have a melanoma after all--the second opinion on the original biopsy "was negative"--and that no further surgery was required. That's not how Reed recalled the phone conversation. "I indicated to Barbara Stanley . . . that Dr. Wallace Clark felt that this was a benign lesion called a Spitz nevus, and that he could not be a hundred per cent sure it was not a melanoma," he testified. "I also explained to her that in Dr. Clark's opinion this lesion had been adequately treated, that follow-up would be necessary, and that Dr. Clark did not feel that further surgery was critical. I also explained to Barbara Stanley that this was in conflict with the previous pathology report, and that the most cautious way to approach this would be to allow me to [remove additional skin] for a two-centimetre margin." She told him, he said, that she didn't want more surgery. "At that point, I reemphasized to Barbara Stanley that at least she should come in for regular follow-up." Unhappy with the care she received, she didn't return.

After two years, the growth reappeared. Stanley went to another doctor, and the pathology report came back with a clear diagnosis: a deeply invasive malignant melanoma. A complete excision, she was told, should probably have been done the first time around. When she finally did undergo the more radical procedure, the cancer had spread to lymph nodes in her groin. She was started on a yearlong course of chemotherapy. Five months later, she suffered a seizure. The cancer was now in her brain and her left lung. She had a course of brain and lung radiation. A few weeks after that, Barbara Stanley died.

But not before she had called a lawyer from her hospital bed. She found a full-page ad in the Yellow Pages for an attorney named Barry Lang, a specialist in medical-malpractice cases, and he visited her at her bedside that very day. She told him that she wanted to sue Kenneth Reed. Lang took the case. Six years later, on behalf of Barbara Stanley's children, he stood up in a Cambridge courtroom and called Reed as his first witness.

Malpractice suits are a feared, often infuriating, and common event in a doctor's life. (I have not faced a bona-fide malpractice suit, but I know to expect one.) The average doctor in a high-risk practice like surgery or obstetrics is sued about once every six years. Seventy per cent of the time, the suit is either dropped by the plaintiff or won in court. But the cost of defense is high, and when doctors lose, the average jury verdict is half a million dollars. General surgeons pay anywhere from thirty thousand to two hundred thousand dollars a year in malpractice-insurance premiums, depending on the litigation climate of the state they work in; neurosurgeons and obstetricians pay upward of fifty per cent more.