In the Firing of Joe Paterno or in Medical Malpractice – Hindsite is 20/20

November 14, 2011
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As a gastroenterologist, I know a few things about scoping.

As a gastroenterologist, I know a few things about scoping. Indeed, every working today I am tunneling through either end of the alimentary canal. These exercises are literally and figuratively enlightening as I seek new information that will make patients’ lives better or keep them well.

Endoscopy is an example of prospective scoping, meaning the result of the scope is not yet known because the diagnostic study had not yet been done. This contrasts with the concept of retroscopy, which describes the concept of looking backwards at events that have already transpired and then making judgments on these events. In the vernacular, retroscopy is known as ‘Monday morning quarterbacking’.

While I am not officially credentialed in retroscopy, and received no training in this procedure during my gastroenterology training program, I am quite familiar with the technique. Retroscopy is one of the main tools wielded by medical malpractice plaintiff attorneys who sue physicians for alleged medical negligence. It is in easy task in medicine, and in life, to look backwards after a tragedy has occurred and to assign fault by demonstrating how the event could have been averted. Those of us who must operate in real time, however, do not have power of clairvoyance which would enable us to choose the path that leads to a blissful outcome. We have all read about police officers who are vilified after using excessive or even deadly force against an individual. While there are times that law enforcement have clearly erred, on other occasions I’m not so sure. I’m grateful that I don’t have to make a split second decision with a gun in my hand as I face someone whom I believe poses an immediate danger to me or to others. What if the officer were to hold his fire and the suspect would then shoot some innocent bystanders? During the inquiry that properly follows deadly force by law enforcement, a team of investigators may take weeks combing through every angle and aspect of the episode to determine if the officer was trigger happy. The officer may have had but a moment to make his decision.

We physicians face the same unfair process when years after an unfortunate medical outcome we are chastised for failing to prevent the disaster when we – through the retroscope – had ample opportunity to do so.

“Why didn’t you recommend surgery, doctor, which clearly would have saved the patient?”

Because at the time the medical and surgical team believed that the patient would not have survived surgery and that continued intensive medical treatment was appropriate.

“Why didn’t you prescribe the antibiotic that was appropriate for the infection?”

Because, the rare germ that was infecting the patient wasn’t identified until autopsy.

“Why did you discharge the patient 12 hours before he returned to the hospital with a massive heart attack?”

The patient was discharged after a routine hernia repair. He had no symptoms at discharge and was properly sent home.

I think that Joe Paterno has been victimized by the retroscopers.. He was fired this past week for failure to have done more after he was notified in 2002 of an illegal and indecent act that was perpetrated by a former defense coordinator. He didn’t bury the information, but promptly informed the athletic director and a Penn State vice president of what he was told. True, he did not follow-up on the issue afterwards or notify law enforcement of what he knew.

Interestingly, the two Penn State individuals who have been charged with crimes will have their legal bills paid by the University, while Paterno, a cooperating witness, was fired. Sure this might be a contractual requirement, but does it sound fair?

As more facts emerge, we will learn that many had knowledge or suspicions of sexual abuse, but remained silent.  What standard will be applied to them?

Should Paterno have done more? Yes, and  Coach Paterno deeply regrets his inaction, as he has stated publicly. However, is firing him the proper and proportionate response in the context of a lustrous career that spanned decades? He has spent 62 years at Penn State including 46 seasons as the Nittany Lions’ head coach. He has been a role model for thousands and thousands of young athletes and students on his campus and throughout the country. He has a legendary reputation.  By any measure, this man has done much good over a long and brilliant career.

He committed no crime and did not engage in a cover up. He made a mistake. In my view, his abrupt and ignominious ouster was wrong. This affair could have been handled much more gracefully, preserving the coach’s dignity, while still demonstrating disapproval of Paterno’s stopping short 9 years ago.

I know that my view here is not popular, but I hope that readers will give it fair-minded consideration. 

Is this the best that Penn State could have done? I don’t need to pull out the retroscope here. I’m watching the game in real time. Penn State fumbled.

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