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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 in mid-September 1996 to go over the new findings.

None of this was in dispute; what was in dispute was what happened during the phone call. According to 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. Reed recalled the conversation differently. "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 100 percent 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-centimeter margin." She became furious at him for the seeming error in his initial diagnosis, though, and told him 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." She didn't want to return to see him. Indeed, she wrote him an angry letter afterward accusing him of mistreatment and refusing to pay his bill.

Two years later, the growth reappeared. Stanley went to another doctor, and this time 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 into it, she suffered a seizure. The cancer had spread to her brain and her left lung. She had a course of 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.

M
ALPRACTICE SUITS ARE
a feared, often infuriating, and common event in a doctor's life. (I have not faced a bona fide malpractice suit yet, 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 percent of the time, the suit is either dropped by the plaintiff or won by the doctor 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 three 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 50 percent more. This is a system that seems irrational to most physicians. Providing medical care is difficult. It involves the possibility of any of a thousand missteps, and no doctor will escape making some terrible ones. Lawsuits demanding six-figure sums for bad outcomes,
therefore, seem mostly malicious to physicians--and even worse when no actual mistake is involved.

Every doctor, it seems, has a crazy-lawsuit story. My mother, a pediatrician, was once sued after a healthy two-month-old she had seen for a routine checkup died of sudden infant death syndrome a week later. The lawsuit alleged that she should have prevented the death, even though a defining characteristic of SIDS is that it occurs without warning. One of my colleagues performed lifesaving surgery to remove a woman's pancreatic cancer only to be sued years later because the woman developed a chronic pain in her arm; the patient blamed it, implausibly, on potassium that she received by IV during recovery from the surgery. I have a crazy-lawsuit story of my own. In 1990, while I was in medical school, I was standing at a crowded Cambridge bus stop when an elderly woman tripped on my foot and broke her shoulder. I gave her my phone number, hoping that she would call me and let me know how she was doing. She gave the number to a lawyer, and when he found out that it was a medical school exchange he tried to sue me for malpractice, alleging that I had failed to diagnose the woman's broken shoulder when I was trying to help her. (A marshal served me with a subpoena in physiology class.) When it became apparent that I was just a first-week medical student and hadn't been treating the woman, the court disallowed the case. The lawyer then sued me for half a million dollars, alleging that I'd run his client over with a bike. I didn't have a bike, but it took a year and a half--and fifteen thousand dollars in legal fees--to prove it.

My trial had taken place in the same courtroom as Reed's trial, and a shudder went through me when I recognized it.
Not everyone, however, sees the system the way doctors do, and I had come in an attempt to understand that gap in perspectives. In the courtroom gallery, I took a seat next to Ernie Browe, the son of Barbara Stanley. He was weary, he told me, after six years of excruciating delays. He worked for a chemistry lab in Washington State and had to take vacation time and use money from his savings to pay for hotels and flights--including for two trial dates that were postponed as soon as he arrived. "I wouldn't be here unless my mother asked me to, and she did before she died," he said. "She was angry, angry to have lost all those years because of Reed." He was glad that Reed was being called to account.

The dermatologist sat straight-backed and still in the witness chair as Lang fired questions at him. He tried not to get flustered. A friend of mine, a pediatric plastic surgeon who had had a malpractice suit go to trial, told me the instructions that his lawyer had given him for his court appearances: Don't wear anything flashy or expensive. Don't smile or joke or frown. Don't appear angry or uncomfortable, but don't appear overconfident or dismissive, either. How, then, are you supposed to look? Reed seemed to have settled on simply looking blank. He parsed every question for traps, but the strenuous effort to avoid mistakes only made him seem anxious and defensive.

"Wouldn't you agree," Lang asked, "that [melanoma] is very curable if it's excised before it has a chance to spread?" If a patient had asked this question, Reed would readily have said yes. But, with Lang asking, he paused, unsure.

"It's hypothetical," Reed said.

Lang was delighted with this sort of answer. Reed's
biggest problem, though, was that he hadn't kept notes on his mid-September phone conversation with Barbara Stanley. He could produce no corroboration for his version of events. And, as Lang often reminded the jury, plaintiffs aren't required to prove beyond a reasonable doubt that the defendant has committed malpractice. Lang needed ten of twelve jurors to think only that it was more likely than not.

"You documented a telephone conversation that you had with Barbara Stanley on August 31, isn't that correct?" Lang asked.

"That is correct."

"Your assistant documented a discussion that you had with Barbara Stanley on August 1, right?"

"That is correct."

"You documented a telephone call with Malden Hospital, correct?"

"That is correct."

"You documented a telephone conversation on September 6, when you gave Barbara Stanley a prescription for an infection, correct?"

"That is correct."

"So you made efforts and you had a habit of documenting patient interactions and telephone conversations, right?"

"That is correct."

Lang began to draw the threads together. "Exactly what Barbara Stanley needed, according to you, [was] a two-centimeter excision, right?"

"Which is what I instructed Ms. Stanley to do."

"Yet you did not tell Dr. Hochman"--Stanley's internist--"that she needed a two-centimeter excision, right?"

"That is correct."

"But you want this jury to believe you told Barbara Stanley?"

"I want this jury to believe the truth--which is that I told Barbara Stanley she needed a two-centimeter excision."

Lang raised his voice. "You should have told Barbara Stanley that, isn't that correct?" He all but called Reed a perjurer.

"I did tell Barbara Stanley, repeatedly!" Reed protested. "But she refused." Reed tried to keep his exasperation in check, while Lang did all he could to discredit him.

"In your entire career, Doctor, how many articles have you published in the literature?" Lang asked at another point.

"Three," Reed said.

Lang lifted his eyebrows and stood with his mouth agape for two beats. "In twenty years' time, you've published three articles?"

"Doctor, you do a lot of cosmetic medicine, isn't that true?" he later asked.

I could not tell whether the jury was buying Lang's insinuations. His examination made my skin crawl. I could picture myself on the stand being made to defend any number of cases in which things didn't turn out well and I hadn't got every last discussion down on paper. Lang was sixty years old, bald, short, and loud. He paced constantly and rolled his eyes at Reed's protestations. He showed no deference and little courtesy. He was almost a stereotype of a malpractice lawyer--except in one respect, and that was the reason I'd come to watch this particular trial: Barry Lang used to be a doctor.

For twenty-three years, he had a successful practice as an
orthopedic surgeon, with particular expertise in pediatric orthopedics. He'd even served as an expert witness on behalf of other surgeons. Then, in a turnabout, he went to law school, gave up his medical practice, and embarked on a new career suing doctors. Watching him, I wondered, had he come to a different understanding of doctors' accountability than the rest of us?

I
WENT TO
meet Lang at his office in downtown Boston, on the tenth floor of One State Street, in the heart of the financial district. He welcomed me warmly, and I found that we spoke more as fellow doctors than as potential adversaries. I asked why he had quit medicine to become a malpractice attorney. Was it for the money?

He laughed at the idea. Going into law "was a money disaster," he said. Starting out, he had expected at least some rewards. "I figured I'd get some cases, and if they were good the doctors would settle them quickly and get them out of the way. But no. I was incredibly naive. No one ever settles before the actual court date. It doesn't matter how strong your evidence is. They always think they're in the right. Things can also change over time. And, given the choice of paying now or paying later, which would you rather do?"

He entered law practice, he said, because he thought he'd be good at it, because he thought he could help people, and because, after twenty-three years in medicine, he was burning out. "It used to be 'Two hip replacements today--yay!'" he recalled. "Then it became 'Two hip replacements today--ugh.'"

When I spoke to his wife, Janet, she said that his decision to change careers shocked her. From the day she met him, when they were undergraduates at Syracuse University, in New York, he'd never wanted to be anything other than a doctor. After medical school in Syracuse and an orthopedics residency at Temple University in Philadelphia, he had built a busy orthopedics practice in New Bedford, Massachusetts, and led a fulfilling and varied life. Even when he enrolled in night classes at Southern New England School of Law, a few blocks from his office, she didn't think anything of it. He was, as she put it, "forever going to school." One year, he took English literature classes at a local college. Another year, he took classes in Judaism. He took pilot lessons and before long was entering airplane aerobatics competitions. Law school, too, began as another pastime--"It was just for kicks," he said.

After he finished, though, he took the bar exam and got his license. He got certified as a public defender and took occasional cases defending indigent clients. He was fifty years old. He'd been in orthopedics practice long enough to have saved a lot of money, and law began to seem much more interesting than medicine. In July 1997 he handed his practice over to his startled partners, "and that was the end of it," he said.

He figured that the one thing he could offer was his medical expertise, and he tried to start his legal practice by defending physicians. But because he had no experience, the major law firms that dealt with malpractice defense wouldn't take him, and the malpractice insurers in the state wouldn't send him cases. So he rented a small office and set up shop as a malpractice attorney for patients. He sunk several thousand dollars a month into ads on television and in the phone book,
dubbing himself "the Law Doctor." Then the phone calls came. Five years into his new career, his cases finally began going to trial. This was his eighth year as a malpractice attorney, and he had won settlements in at least thirty cases. Eight others had gone to trial, and he had won most of them, too. Two weeks before the Reed trial, he won a $400,000 jury award for a woman whose main bile duct was injured during gallbladder surgery and required several reconstructive operations. (Lang got more than a third of that award. Under Massachusetts state law, attorneys get up to 40 percent of the first $150,000, 33.3 percent of the next $150,000, 30 percent of the next $200,000, and 25 percent of anything over half a million.) Lang has at least sixty cases pending. If he had any money troubles, they are over now.

Lang said that he receives ten to twelve calls a day, mostly from patients or their families, with some referrals from lawyers who don't do malpractice. He turns most of them away. He wants a good case, and a good case has to have two things, he said. "Number one, you need the doctor to be negligent. Number two, you need the doctor to have caused damage." Many of the cases fail on both counts. "I had a call from one guy. He says, 'I was waiting in the emergency room for four hours. People were taken ahead of me, and I was really sick.' I say, 'Well, what happened as a result of that?' 'Nothing, but I shouldn't have to wait for four hours.' Well, that's ridiculous."