04/11/2012 01:53 pm ET | Updated Jun 11, 2012

A Litigator's Decision to Not Sue His Heart Surgeon

Are you going to sue?

Since my medical condition and its cause became known, perhaps this is the question most often asked of me.

I was a marathon runner. I took pride in the fact that, as I navigated the treacherous currents of middle age, I remained in good shape. A dad who wrestled with his three kids, I still exploded with youthful energy.

I am no longer that person.

On a Saturday morning run through the leafy suburb in which I live, I felt a fluttering sensation in my chest.

A week later, on June 28, 2010, I underwent heart surgery, shocked by such a sudden reversal of fortune.

The surgery did not go well: It solved one problem ("extreme" regurgitation of blood caused by the rupturing of my mitral valve) but created a new one. I now have a condition known as left ventricular outflow tract obstruction (LVOTO), which means that, when I exert myself, blood flow through my heart is impeded.

My condition is severe. In medical parlance, my exercise peak gradient is 206 mm hg; it should be zero. I use drugs known as beta blockers to alleviate my symptoms, but I still develop weakness and shortness of breath during minimally strenuous activity. I cannot carry a bag of groceries 50 yards. Limited to walking and low-level "exercise" like playing golf, I am a 48-year-old man who often physically feels like he is 80.

I am a lawyer, a commercial litigator, familiar with medical malpractice. I know first-hand we live in a litigious world, one in which people reasonably expect to receive monetary compensation if they have been wronged. So, the barrage of inquiries about whether I intended to file a lawsuit was expected.

I strongly considered suing my surgeon, an Ivy League graduate with a sterling reputation.

But now, after a year of inquiry and consultation, I have resolved not to sue -- even though I believe that choices made by my surgeon caused the LVOTO.

Ultimately, the decision to not sue was heavily influenced by a two-hour meeting that my wife and I recently had with the surgeon. The unusual face-to-face encounter tempered my anger and allowed me to obtain a deeper understanding about what happened to me in the operating room. More broadly, the talk and my reaction to it demonstrate the wisdom of open dialogue, as opposed to hostile confrontation, between medical institutions and the patients they serve.

Since being diagnosed with LVOTO, I told myself that I would sue only if I were convinced my surgeon committed malpractice.

At times, I leaned in the direction of litigation, because the stars seemed to align for a compelling claim:

-- My LVOTO was avoidable. It was caused by my surgeon's decision to repair my mitral valve with a 28-millimeter prosthetic ring that was too small.

-- My condition is likely permanent; most doctors strongly recommend against my submitting to a second heart surgery to try to "re-repair" my mitral valve.

-- My surgeon did not warn me that I could develop LVOTO even though cardiology literature notes it occurs in 2 percent to 10 percent of mitral valve repair cases.

-- My inability to obtain a recording of an important intra-operative echocardiogram suggested one had not been performed.

-- My surgeon sent me an e-mail to which I took offense and that led me to believe he is arrogant and egotistical. He indicated I had affronted him by seeking treatment at the Cleveland Clinic, a world-class medical facility to which I transferred my care after I developed pericarditis, a dangerous post-operative complication. "I am just as expert in treating [LVOTO] as the doctors in Cleveland," my surgeon wrote.

But, again, I didn't want to file a lawsuit unless I satisfied myself that my surgeon acted negligently. No amount of money would be worth the cost of seeing myself as an opportunist, a hypocrite -- someone who has publicly condemned frivolous litigation but who nevertheless files questionable claims on his own behalf.

Surgeons at several top-ranked medical centers suggested they may have discovered and eliminated my LVOTO before sewing me up. But these insinuations did not morph into unequivocal condemnations of my surgeon's conduct.

I obtained from these and other doctors information that helped me frame pertinent factual issues: cardiac surgeons use "ring-sizers" to determine the most appropriate prosthetic ring; smaller prosthetic rings are more likely to cause LVOTO; there are several well-known predictors of LVOTO; and some cardiac surgeons perform intra-operative testing to assess a patient for LVOTO at elevated heart rates.

Still, I had so many unanswered questions. Did my surgeon use a ring-sizer? Did he consider the predictors of LVOTO when he selected the 28-millimeter prosthetic ring? Did he conduct intra-operative tests to evaluate the repair of my mitral valve? My surgeon's surgical notes did not address these issues.

Speaking directly with my surgeon would be the best way to find out why I have LVOTO, I concluded. I felt competent to have this discussion; over the last year, I developed a workable understanding of relevant medical issues, terminology and anatomy.

I sent my surgeon a lengthy letter in which I requested "a meaningful dialogue about what has happened." Most people said they thought sending it would be a mistake. The letter could contain harmful admissions, I was told. Lawyer friends who specialize in medical malpractice predicted that my surgeon would not even respond to the letter, that he would curl into a self-protective ball and treat me like an adversary in court.

Yet within hours after sending the letter, I received a solicitous e-mail from my surgeon saying he too wanted to meet. The following morning I received a telephone call from the chief medical officer at the hospital that employs my surgeon. He expressed regret about my situation and offered to "facilitate" any meeting.

When the meeting occurred just two days later, my surgeon, my wife, Stacy, and I sat alone in a small conference room. Contrary to my expectations, my surgeon was not accompanied by a lawyer.

My surgeon was emotionally transparent and displayed a humility missing from his prior e-mail, the one that offended me.

More importantly, the meeting was an honest one. My surgeon did not apologize, but he said he had never seen an outcome like mine and conveyed sincere concern about my situation. He did not speak tentatively or cautiously. On the contrary, he was animated and unguarded.

Indeed, my surgeon made several admissions that could have hurt him in a courtroom.

He conceded that, in retrospect, he wishes he had used a larger prosthetic ring. He also did not deny that, when he selected the size of the ring, he did not consider predictors of LVOTO, including the fact that I had a small hyper-dynamic left ventricle and abnormally shaped mitral leaflets.Nor did he conduct any intra-operative testing to see whether I had LVOTO at elevated heart rates.

But, on balance, my surgeon's forthrightness generated goodwill and neutralized my desire to sue. I found him honest, knowledgeable and more likeable.

He answered questions directly and authoritatively. He confirmed he used a ring-sizer, as he does in "every surgery." He swore that he administered intra-operative echocardiograms before and after my mitral valve repair, and neither test showed any sign of LVOTO. My surgeon explained in detail why he and most other surgeons believe that it is difficult to conduct accurate intra-operative testing for LVOTO at elevated heart rates. He talked about the subjective judgments surgeons invariably make during complicated operations like mitral valve repair.

When Stacy and I left the conference room, we looked at each other and immediately agreed to not file a lawsuit. We said that suing would not feel right or be consistent with our values. I had obtained what I was looking for: an honest dialogue, a demonstration of concern and an enhanced understanding of what happened to me.

Yes, I have some doubts. I sometimes wonder whether my surgeon's prodigious display of medical vernacular overawed me. I still suspect that my surgeon did not think proactively about my case; that he should have but did not consider the predictors of LVOTO when selecting the ring size; that he may have gone on autopilot and treated me like the elderly patients on whom he usually operates; that, in my case, he should have deviated from standard practices and protocols.

But, if my surgeon were to have not performed exceptionally in my case, that would not mean he acted negligently or violated the standard of care. A doctor does not act negligently whenever his conduct is less than stellar.

I am so tired of thinking about my surgery. It is time to move on, to more deeply appreciate all I still have: my family, my friends, my interests and ideas, my convictions, my love of life.

I am happy that my surgeon allowed me to obtain closure, to unchain myself from the burdens of the past, to finally move forward liberated from the psychological millstones of anger and gnawing questions.

Some hospitals embrace the type of constructive conversation in which my surgeon and I engaged, but most do not. Perhaps experiences like mine present an opportunity for the medical community.

I know the legal and medical professions are often at war; they view each other with distrust. The impulse to turn away, to erect barriers, is a predictable consequence of the fact that we live in a hyper-litigious society. And, admittedly, some people who care most about financial gain will exploit a bad surgical result no matter what.

But I don't think I am unusual, and the palliative effect of my conversation with my surgeon shows that, perhaps, there is a better way. In speaking with me, he took a leap of faith. Now, we both can avoid the expense, emotional trauma and uncertainty of litigation, satisfied we have respected and heard each other.

If more doctors were guided by my surgeon's example, if they were more willing to engage in honest confrontation, if they were to appreciate that litigation often is fueled by a lack of communication, there would be fewer patients motivated to use the court system to obtain the answers and psychological comfort we so desperately crave.

If my post-surgical odyssey is to serve any purpose, I hope it spurs members of the medical community to reinvent their relationships with patients in search of peace of mind.