Ten Patient Stories: When Attorneys Refused My Medical Malpractice Case

After surgery on her ankle, Jeanine Thomas suffered a potentially deadly bacterial infection that required seven more operations to save her leg and nearly five years of recovery.

Thomas found a medical malpractice attorney to file a lawsuit on her behalf. But then he withdrew, she said, because he wouldn’t make much money if they won. Thomas had just started a consulting business and didn’t make much. Because economic damages in lawsuits are largely based on lost income, she was told the potential rewards weren’t high enough, she said.

Thomas moved on. Now, she fights for better infection prevention standards in health care through her advocacy organization, the MRSA Survivors Network. She was one of dozens of readers who shared similar experiences in the comments section for ProPublica’s recent story, “Patient Harm: When An Attorney Won’t Take Your Case.”

Their stories cut across many dimensions of the problem, so we decided to highlight a few. The excerpts below were edited for clarity, and some writers did not provide their names.

As we reported, the medical malpractice system often discriminates against certain patients, particularly those with low incomes. Those who can’t get representation ­— often women, children or the elderly — are sometimes called the “hidden victims” of medical malpractice. Studies show that the problem isn’t limited to states that have strict limits on malpractice awards.

In addition to commenting on the story, many readers responded by filling out the ProPublica Patient Harm Questionnaire or by posting to ProPublica’s Patient Harm Facebook group. Both are part of our ongoing reporting about patient safety, and we invite you to check them out.

1. "He was too old"

When my father passed from MRSA acquired after open heart surgery (acquired either in the hospital or rehab center) I called 40 attorneys and was told the exact same thing as the article states: He was too old, had lost his viability (translate earning potential) and had no wife (she had died). Most of them would not tell me why they would not take the case, but one did. It's not only hard to hear that your elderly parent has no value legally, but this is exactly why doctors and hospitals and other medical facilities continue their poor attempts at keeping hospitals as clean as possible. They answer to no one.

— Carol Dye

2. “What was done to me was clearly negligence”

This is really so painful to re-live. All of the attorneys I discussed my case with said that what was done to me was clearly negligence and that the case had merit indeed. However, the potential award would have fallen below the $250,000 mark, and to fight it would have been a gamble because jurors – for whatever reason – see physicians in a “can do no wrong” light and may decide in favor of the negligent doctor. I wanted to fight it out of principle more than anything else.

— Gloria Shen

3. Rejection Letter

Our son's case was a good example. There were many instances of error, but because he was single we couldn't bring case because there was no “pain or suffering” allowed for parents of adult children over the age of 25. I did call many attorneys and mostly was asked how old he was and if he was married. Then I got a rejection letter. The solution is very simple. Be honest when errors take place, and compensate victims fairly, then peace will come a lot sooner for everyone, including doctors.

— John

4. "It was business"

I had the same issue after my daughter passed from medical harm. I did at one point have a signed contract with an attorney. He had a friend in the medical field that he felt could review her 2,500 pages of medical records. However, when his friend explained that because she was an infant who went in for heart surgery, you'd require two specialists to review my daughter’s chart and testify. I was told it would cost roughly $50,000 to $75,000 per specialist. This doesn't include normal costs for the attorney. It didn't take long for the attorney to send me a letter stating he couldn't help me. I added that letter to the other dozen all stating we had a good case, but the financial limits made it impossible for them to take it. It was business.

Although it was heartbreaking, I do understand the attorneys cannot lose that kind of money on a case. I even asked if it were possible for me to sign an agreement stating the attorney gets everything above expenses. I didn't want the money. I just wanted the hospital to have to own the mistakes.

As you read this, don't assume she passed because of her heart. The surgery was successful, as expected. It was the aftercare that killed her: Avoidable infections, overdose of heparin, lines becoming dislodged, a doctor collapsing her lung while removing a drain tube. It seemed endless but was only 95 days. One heart surgery with a 99.9 percent success rate and a week of recovery in the hospital turned into three heart surgeries, an exploratory abdominal surgery and seven hospital associated infections and 95 days later, her death. I wish there were a medical court (of sorts) that patients could go to without an attorney. They could file a complaint and sit in a room with the doctor, nurses, specialists and a panel of “judges” and plead their case. Ask their questions. No attorneys. No “specialists.” Just a place to get answers, and, if needed, monetary compensation. Personally, I just wanted answers.

— kratliff73

5. “Dad’s life was worth nothing”

My Dad was an elderly, and he was killed by the misuse of an off-label medication that was contraindicative for his medical conditions. The harm was totally preventable. After Dad’s death, we talked to 20+ attorneys. 99 percent of them said there was malpractice and the doctor was negligent. But because of my Dad’s age and the lack of future earning, no attorney was willing to take my Dad’s case on contingency.

One attorney wrote to us that my Dad’s age was above the average life expectancy, and therefore it “seriously reduces the damages likely to be awarded for loss of future life earnings. Certainly this does not excuse the poor care he received but this makes the case economically untenable as the expenses will likely eat up the majority of likely recoverable damages. We do not have punitive damages in Washington (state) that an outraged jury could award to punish the Dr. and Hospital for their callousness. For these reasons our firm does not wish to undertake this case.”

So we learned quickly that, in our current legal system, Dad's life was worth nothing because he was old.

— Yanling

6. "I’ve never sued anybody"

I attempted to get recompense for my elderly mother after medical neglect that resulted in her losing her ability to walk, additional surgeries, and months of pain. I had no idea WHY the lawyers I contacted didn't even want to listen to the details. Now I know, and am disheartened to learn the reason for their disinterest. I've never sued anybody, am not one of those people who would sue when I dump coffee in my lap. But when one has a legitimate reason and legitimate damages, it's horrendous that our legal system provides no avenue of recompense for actual damage that is life altering.

— Kathleen

7. "I am, however, alive"

I was an RN and suffered serious and permanent harm from my cancer surgery. There were many errors, including my waking up during surgery, life-threatening infection, internal sutures that did not dissolve, renal failure, a collapsed lung after hospital discharge, abscesses and wound dehiscence. Years later, I am homebound and unable to work. I would be making $80-100,000/year now or more but am stuck barely above poverty on Social Security Disability. Since I and the various insurances have spent over $2 million for my care, and I do not have enough money to obtain all the care and medications I need, I am very unhappy. I have a potential new abscess now. It is a living horror, and the cancer may return. I am always in pain. No attorney would take my case. Even the failure to diagnose the cancer for years, with facts right there for every doctor I went to with my symptoms, isn't actionable. I am however, alive.

— Nightmare-daily

8. "Perverse incentive"

We got dropped the moment our attorney heard mom had died. It creates a very perverse incentive when a hospital realizes that they have committed a serious harm. The best thing it can do is kill you, which is precisely what we think the hospital did.
— Debra Van Putten

9. "It was not cost effective anymore" When I went back to work my lawyers dropped my case. It was NOT cost effective anymore.

— Ron Giovagnoli

10. "It would cost too much"

My younger brother died almost 2 years ago. He coded (his heart stopped beating) a couple days after a colostomy procedure. The doctors rushed him into surgery as he was clearly bleeding internally. They didn't find the source of the bleed, but after looking for a while, gave up and closed the surgery anyway. He continued to bleed, which led to two more surgeries, more complications and his eventual death.

We have had multiple lawyers look at the case. All of them have told us that while they believe mistakes were made, it would cost too much to prosecute the case to be worth it. Since he was 25, single and childless, there are no financial losses; no one who was depending on his paycheck. All we really want is answers and assurances that something has been done within the hospital to prevent similar mistakes from occurring again.

— Jessamare


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Source: ProPublica (Allen-Pierce, 1/09)

Music video gives look at boy paralyzed in drunk driving crash

KELLER, Texas -- "Blink your eyes if you remember me," said 17-year-old Michael Lane, and his childhood friend Sergio Molina blinked.

It's the only way Sergio communicates. Michael treasures every blink.

"It's heartbreaking. Sergio was such a happy kid, always laughing," Michael said. "Had this electric, outgoing personality."

The two met in middle school. Michael is now a junior at Keller Central High. He's a budding hip hop singer and songwriter. And now he's writing about tragedy.

"Four people are dead and I can't even see remorse. I ain't let out that much tears since my parents got divorced. And they want rehab?" he sings.

Those lyrics are a nod to the 10 years of probation given to 16-year-old Ethan Couch, who was drunk when he was driving a pickup full of teenagers. He plowed into an accident scene, killing the driver of a broken down car and three Good Samaritans who had come to her aid.

Sergio Molina was in the back of the truck. He was paralyzed in the crash.

His family gave Michael permission to use their private moments together in a music video, and also gave us permission to share it.

"The first thing that was on my mind when I started writing it was Sergio," Michael said of the song "Stay," which features Sergio in the video.

The crash was in June, Michael wrote the song in one day, after spending many weeks by his friend's side.

"I was so stressed out, had so many mixed emotions, and had so much going on, that the only way I knew how to keep myself from imploding was to write it," he said. "This has made a huge impact on my life. Up until this point, I've never really had to deal with losing someone -- let alone a friend."

His emotions drove him to wrote another song this week, after the proceedings in juvenile court.

"I had gone and testified on behalf of Sergio and hearing everyone's testimony and all the police statements, I was real -- I was shocked," he said.

"I broke down and cried like a baby," he admitted.

Michael doesn't yet have a video for his newest piece, but the lyrics are powerful alone. They are all about Couch.

"Four people are dead and I can't even seen remorse. I ain't let out that much tears since my parents got divorced and they want rehab?" he sings.

"Can't you see the stuff you've done? Even if they let you walk, this will haunt you. You ain't won."

Michael said he was moved to write about Couch because of his personal experience inside the courtroom.

"We made eye contact one time and that was when I was coming off the stand, and it was almost for like a second or two," Michael explained. "You know you can tell a lot about someone when you look in their eyes."

"Instead of this remorseful, guilty look you'd expect someone to have, his stare was just kind of cold," he said. "Like he was either angry, or he just wasn't there."

Michael's newest song includes one line near the end where he names each victim who died. He didn't know them, but feels like he does, especially after hearing graphic testimony about their violent deaths.

"I know Shelby, I know Holly, and I feel for Breanna. And Brian, in my heart, I want y'all to know you died in honor."

"I mention their names because the love they gave and the memory people have of them will always live on," Michael said.

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Source: KVUE (Woodart, 12/16)

Teen sentenced to 10 years probation, rehab in 4 deaths

FORT WORTH — A Keller teenager who pleaded guilty to driving drunk and causing collisions that killed four people in June was sentenced Tuesday to 10 years probation.

State District Judge Jean Boyd ordered the 16-year-old to receive therapy at a long-term, in-patient facility. He will stay in Tarrant County juvenile detention until the juvenile probation department prepares a report about possible treatment programs.

If the teen violates the terms of his probation, he could be sent to prison for 10 years.

Prosecutors had asked that the youth be sentenced to 20 years in a state lockup.

Defense attorneys recommended a lengthy probationary term at a rehabilitation facility near Newport Beach, Calif., that can cost more than $450,000 a year. Attorneys said the teen’s parents would pay for the therapy.

The 16-year-old pleaded guilty last week to four counts of intoxication manslaughter and two counts of intoxication assault causing serious bodily injury. Killed were Breanna Mitchell of Lillian, whose car broke down the night of June 15 on Burleson-Retta Road; Hollie and Shelby Boyles, who lived nearby and had come outside to help Mitchell; and Burleson youth minister Brian Jennings, a passer-by who had also stopped to help.

The teen admitted to being drunk when he lost control of his pickup. He had seven passengers in his Ford F-350, was speeding, had a blood-alcohol level three times the legal limit, plus traces of Valium in his system, according to earlier testimony.

The teen elected to have Boyd sentence him.

The Star-Telegram usually does not identify juvenile defendants.

Two teens riding in the bed of the teen’s pickup were critically injured. Solimon Mohmand had numerous broken bones and internal injuries. Sergio Molina remains paralyzed and communicates by blinking his eyes, according to testimony last week.

Scott Brown, an attorney who represented the teen with Reagan Wynn, said the teen could have been freed in two years if Boyd had sentenced him to 20 years.

“She fashioned a sentence that could have him under the thumb of the justice system for the next 10 years,” Brown said.

Richard Alpert, a Tarrant County assistant district attorney who prosecuted the case with Riley Shaw, said they were very disappointed with the verdict.

In his closing statement, Alpert said that if the teen continues to be insulated by his family’s wealth, as had happened before, he would be involved in another tragedy in the future.

“There can be no doubt that he will be in another courthouse one day blaming the lenient treatment he received here,” Alpert said.

In delivering the sentence, Boyd told the victims’ families in the packed courtroom that there was nothing she could do that would lessen their pain. And she told the teen that he, not his parents, is responsible for his actions.

Boyd said that she is familiar with programs available in the Texas juvenile justice system and is aware that he might not get the kind of intensive therapy in a state-run program that he could receive at the California facility suggested by his attorneys. Boyd said she had sentenced other teens to state programs but they never actually got into those programs.

Families’ reactions

Eric Boyles, who lost his wife and a daughter in the collision, said there was a lot of disappointment in the room where the victims’ families gathered after Boyd announced the sentence.

“Money always seems to keep [the teen] out of trouble,” Boyles said. “Ultimately today, I felt that money did prevail. If [he] had been any other youth, I feel like the circumstances would have been different.”

Marla Mitchell, whose daughter was killed, said: “He’s not free. None of us knows what God’s plan is. He has not escaped judgment. That is in the hands of a higher power.”

Shaunna Jennings, whose husband was killed, said her family had forgiven the teen, but that did not mean he should not be punished.

“You lived a life of privilege and entitlement, and my prayer is that it does not get you out of this,” Jennings said. “My fear is that it will get you out of this.”

Emotional age of 12

Earlier Tuesday, a psychologist testified that the teen essentially raised himself.

His parents had a volatile and co-dependent relationship, and had a contentious divorce, said Gary Miller, who began evaluating the teen on the day he was released from a hospital after the wreck.

The parents argued often, which the teen witnessed, Miller said.

The teen’s father “does not have relationships, he takes hostages,” Miller said. Miller described the mother as a desperate woman who used her son as a tool to get her husband to act the way she wanted.

The mother gave the teen things, Miller said. “Her mantra was that if it feels good, do it,” Miller said.

The teen’s intellectual age was 18, but his emotional age was 12, Miller told Boyd.

“The teen never learned to say that you’re sorry if you hurt someone,” Miller said. “If you hurt someone, you sent him money.”

Miller said if the teen can get the help that he needs, perhaps he can become a contributing member of society and make amends for the pain he caused so many families.

“This kid has been in a system that’s sick,” Miller said. “If he goes to jail, that’s just another sick system.”

As a child, he had to make adult decisions, Miller said. He had a motorcycle when he was 4 or 5 and was driving large pickups at 13, Miller said. The teen was a high school graduate at 16, but could not say where he went to school, where he went to church and had no friends, Miller said.

His parents never taught him the things that good parents teach children, Miller said.

“He never learned that sometimes you don’t get your way,” Miller said. “He had the cars and he had the money. He had freedoms that no young man would be able to handle.”

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Source: Star-Telegram (Mitchell, 12/13)

Ending drunk driving is goal of MADD's Jingle Bell 5K

AUSTIN -- In an attempt to remember those impacted in the kind of accident that can change lives forever, the Mothers Against Drunk Driving Jingle Bell 5K brought more than 600 runners and walkers to the Domain in Austin.

"This kind of event gives people the opportunity to heal," said Jaime Gutierrez, the Executive Director of MADD Texas. "It gives the opportunity for us to make the public aware of the dangers of drinking and driving."

MADD said that in 2011 between Thanksgiving and New Year's Eve, intoxicated driving was to blame for 931 deaths nationwide.

That's 931 too many, according to Mark Huber. He said these days, drinking and driving is no longer a mistake, it's a choice.

Huber called his 12-year-old daughter Jessica a "miracle." Jessica survived a horrific drunk driving accident in 2002, when her mother ran a red light on Highway 290 and collided with a truck. The then 19-month-old was hurt so badly, doctors told Huber they would not be able to save her.

Since the accident, Jessica had several facial reconstruction and brain surgeries, and there's still so much left to do.

"The nightmare never goes away," Mark Huber said. "11 years later, she still is going to require another facial reconstruction. That's titanium plates in her forehead, rebuilding her left cheekbone. It's financial. It's emotional. It's physical. The nightmare never goes away and it need not happen."

MADD helped Huber get Jessica's mother convicted of DWI.

As the bells worn by runners in the group's Jingle Bell 5K reminded racegoers of the holidays, Mark brought Jessica to the race to remind people that the choices they make can have a real impact; especially on the ones they love.

"It's not a matter of 'if', it's a matter of 'when'. It's going to happen to somebody you know. It could be in your own house. No child deserves this. No parent deserves to spend the holidays in the hospital with a child that need not be there," Huber said.

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Source: KHOU (Shively, 12/01)

Injured 'Texas' dancer's condition improves

The “Texas” company member who was injured in an accident north of Dumas last week that killed five people has improved, Northwest Texas Hospital Caytie Martin spokeswoman said.

Timothy Johnson, 30, of Portland, Ore., now is in satisfactory condition at the hospital, said Caytie Martin of Northwest.

About 11:30 p.m. Aug. 12, after leaving a “Texas” end-of-summer party, a Ford Taurus carrying six cast and crew members in the production ran a stop sign at the intersection of Farm-to-Market Road 119 and U.S. Highway 287 and was struck by a tractor-trailer.

Authorities said the rig’s load toppled onto the driver’s side of the car.

Clint Diaz, 20, of Amarillo; Andrew Duncan, 20, of Wichita Falls; Amanda Starz, 20, of Timonium, Md.; Julian Arredondo IV, 24, of Haltom City; and Eric Harrison, 21, of Fort Worth died in the crash.

Johnson and the driver of the tractor-trailer — Theron Arthur McSay, 70, of Fort Collins, Colo. — were injured in the accident and transported to Northwest.

McSay was released from the hospital this week.

Department of Public Safety officials said officers found alcoholic beverage containers in the Taurus, and Texas Alcoholic Beverage Commission authorities are investigating the party attended by the “Texas” company members, which was held at Coldwater Ranch, owned by former Texas Panhandle Heritage Foundation board member Joe Batson.

“We’ve held the party there for the last 22 years,” said Kris Miller, executive director of the foundation and a “Texas” cast member.

Miller, who said he attended the party, said no alcohol was being served to minors, but attendees 21 and older were allowed to bring their own beverages.

Two of the final week’s performances of “Texas” were canceled, but the final three shows of the musical’s 48th season went on as scheduled.

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Source: Amarillo (Bryant, 8/23)

Unsafe welding led to fatal Gulf accident

A consultant's report for a Texas-based company says a deadly 2012 explosion on its Gulf of Mexico oil platform off the Louisiana coast happened when workers for a subcontractor used unsafe welding practices.

The report was released Wednesday, the same day two injured workers and their spouses filed a $180 million federal lawsuit in connection with the accident. ABSG Consulting did the study and report for Black Elk Energy Offshore Operations, which released the report and also made it available on its website.

Three Filipino workers died in the Nov. 16 accident, which occurred at a time when production was shut down and a construction project was underway on the platform, according to the report.

ABSG says Grand Isle Shipyard Inc. was under contract for construction work when the blast happened. ABSG says Grand Isle had committed not to use subcontractors on Black Elk projects. However, the report says, workers doing the welding were employees of a subcontractor: DNR Offshore and Crewing Services.

A series of explosions occurred when workers were welding a pipe leading to a tank, known as a "wet oil tank," according to the report.

"The WOT contained hydrocarbons, and the piping leading to it had not been isolated and made safe for welding," the ABSG report said.

The report said Grand Isle and another contractor overseeing work on the platform, identified as Wood Group PSN, did not properly carry out welding processes, sometimes referred to as "hot work." It said Grand Isle and DNR failed to stop work when "unexpected conditions" _ including the smell of gas _ arose.

Grand Isle's use of a subcontractor was a factor in the accident because it prevented Black Elk from "effectively auditing the employers of all personnel on their facilities," the report said.

The consultant also recommended that Black Elk provide additional oversight for construction activities on platforms and discourage the use of "hot work" on platforms.

Black Elk, Wood Group and others are named as defendants in a lawsuit filed Wednesday in U.S. District Court in New Orleans by two workers injured in the accident, Antonio Tamayo and Wilberto Ilagan, and their spouses.

Alleging physical and mental injuries, numerous medical expenses and loss of future wages, among other things, the four ask for $20 million each in actual damages, plus a total of $100 million in punitive damages "if any of the defendants are found to have been grossly or intentionally negligent."

Black Elk did not return a call Wednesday seeking comment on the lawsuit. Grand Isle officials did not immediately return a call for comment. A Louisiana attorney who has done work for DNR did not return a call for comment.

A Wood Group spokeswoman declined immediate comment, pending review of the report.

The federal agency that oversees offshore oil and gas safety, the Bureau of Safety and Environmental Enforcement, is still investigating the accident, a spokeswoman, Eileen Angelico, said in response to an email query. The bureau received the consultant's report and was reviewing it, Angelico said.

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Source: Brownsville Herald (AP, 8/21)

Mass. pharmacy recalling some compounded products

BOSTON— A Massachusetts pharmacy issued a voluntary recall Monday of some of its sterile compounding products after "foreign matter" was found in drug vials during an unannounced inspection by state and federal officials.

Pallimed Solutions Inc., of Woburn, was also ordered by the state board of pharmacy to stop all sterile compounding activities until further notice.

Most of the recalled items were used to prepare erectile dysfunction treatments for patients who have difficulty taking drugs orally. The company said fewer than 800 patients were involved.

The company described the recall as a precautionary measure and said it had received no reports of any illnesses or injuries. It also said it would continue with nonsterile compounding.

The Massachusetts Department of Public Health said it requested the recall after a joint inspection on Friday by the state pharmacy board and the U.S. Food and Drug Administration.

"The cease and desist was issued after foreign matter was observed in vials of injectable drugs," the Department of Public Health said in a statement.

Pallimed also was ordered to place all its compounded sterile products into quarantine while the investigation continued.

The company said there was no indication the products were tainted or unsafe. The state also said there were no reports of any patient harm. A message was left with the FDA.

Massachusetts stepped up unannounced inspections of compounding pharmacies after a deadly fungal meningitis outbreak last year was linked to an injectable steroid produced at another Massachusetts company, New England Compounding Center.

That outbreak was responsible for 720 illnesses in 20 states, including 48 deaths, according to the most recent update from the Centers for Disease Control and Prevention.

Framingham-based NECC ceased operations in October and surrendered its license to the Massachusetts board.

Pallimed Solutions is a 7-year-old company that does business as Pallimed Pharmacy and has about 15 employees, according to its website. It said it regretted any impact on customers and that patient safety was its top priority.

"By undertaking this recall action, Pallimed will move forward to ensure that our products always meet the highest standards of safety and customer expectations," the company said in its statement.

On Nov. 27, the state ordered Pallimed to temporarily stop production of sildenafil citrate — the active ingredient in Viagra — for human use after inspectors found it had been prepared with improper components. The company said those issues were administrative in nature and had been resolved, and Monday's announcement was unrelated.

The state said the earlier order was still in place, pending the board's acceptance of a corrective plan.

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Source: WFAA (AP, 3/25)