Series: Patient Safety: Exploring Quality of Care in the U.S.

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Ernie Ciccotelli was trying to do a good deed when he donated a
kidney to his brother. But within days of the surgery, his incision was oozing
green fluid and his guts were rotting.

Ciccotelli said he was almost killed by an infection, and
the follow-up surgeries and months of disability nearly ruined his fledgling
legal practice. So he looked for a malpractice attorney who would help him file
a case against the hospital.

That’s
when he ran into a problem faced by many who are harmed in a medical setting:
Attorneys refuse their cases, not because the harm didn’t happen but because the
potential economic damages are too low.

It’s
estimated that hundreds
of thousands of patients a year suffer some type of preventable injury or
die while undergoing medical care. For many of these patients or surviving
family, a lawsuit is the only hope to recover losses, learn the truth about
what happened and ensure the problem is corrected.

But
lawyers may have to invest
$50,000 or more to pursue a case, and they usually only get paid if they
win or settle. The payout is determined largely by economic damages –
lost earnings, medical bills and future costs caused by the injury.  Those who don’t earn big paychecks
– including children, the elderly and stay-at-home-moms – are the
least likely to find an attorney, studies show.

A 2013
Emory University School of Law study found that 95 percent of patients who seek
an attorney for harm suffered during medical treatment will be shut out of the
legal system, primarily for economic reasons. Most attorneys would not accept a
case – even one they might win – if the damages likely were less
than $250,000.

“You’re basically saying for someone who doesn’t earn a lot of money,
‘It’s OK for a hospital to harm them,’” Ciccotelli
said.

Ciccotelli’s experience is not uncommon. ProPublica has
heard from hundreds of patients through its Patient Harm Facebook group
and Patient
Harm Questionnaire. The inability to find a lawyer is a common refrain.

For
many cases, “the juice isn’t worth the squeeze,” said Stephen Daniels, a
research professor at the American Bar Foundation, a legal research institute.

The
elderly are probably affected the most, Daniels said, even when they’ve
suffered an obvious medical error that led to permanent disability or death.
Elderly patients are often retired, so their income is low. Plus, they usually
have no dependents and Medicare picks up their medical bills.

By comparison, a 40-year-old who suffered
the same type of harm but was a breadwinner for a family with three children,
would be a much more attractive case, Daniels said.

Lawyers are the gatekeepers to the law,” Daniels said. “You can have
all the rights in the world, but if no one will take your case, then those
rights mean absolutely nothing.”

Marshall Allen, Olga Pierce, Ocupop

Ciccotelli, 58, donated his kidney in 2006 at Beth Israel
Deaconess Medical Center in Boston. The transplant went off without a hitch,
but his medical records show that within days he suffered nausea and intense
pain in his gut, then chills and a steady greenish
drainage that soaked his bandages and shirts.

He
had an infection plus an additional complication: His intestines had knuckled
under beneath his skin. Ten days after the transplant, doctors operated
again, removing 15 inches of dying intestine from Ciccotelli’s
gut and scraping out the infection. The hospital, which declined to comment for
this story, didn’t charge him for the clean-up procedures.

The
injury Ciccotelli sustained while being a Good
Samaritan had a cascading effect on his life and finances. He had just started
a new career as a lawyer, running a jack-of-all-trades shop near his home in
Norwich, Vt. But because he couldn’t consistently travel to his office and
hearings, he estimates he lost $45,000 in earnings.

Ciccotelli said he paid a few thousand dollars
out-of-pocket traveling back and forth to the hospital for treatments. For
about a year he was unable to carry any weight, and he said he still can’t
exercise the way he did before the surgery, which has caused his weight to balloon.

Ciccotelli figured another lawyer would jump to take his
case. He’d been fine before the surgery and clearly had suffered harm. But one
by one, lawyers turned him away.

After
about a half-dozen rejections, he asked one why no one would take his case. You can win, the attorney told him, but it won’t be enough money to be worth it.

As a
new lawyer, Ciccotelli didn’t make much. He estimated
his income would be about $41,000 that year. Because the hospital performed the
repair surgeries for free, there were no big medical bills, the attorney told
him. Plus, he’d be able to earn income again.

Given
the potentially high costs of suing a hospital, the attorneys took a pass.

In
some states, the problem is exacerbated by strict caps on damages for medical
malpractice. A
2011 study in the journal Qualitative Sociology however, found that the
emphasis on damages affects patients nationwide, no matter the state limits.

The
study included interviews with attorneys and found that monetary damages were
the most important factor in taking cases. “I
turn down clearly meritorious cases all the time because I think they’re
just not worth enough money,” said an attorney from Pennsylvania, which the
study said did not have caps on damages.

More
than 450 attorneys were surveyed for the Emory study, “Uncovering
the Silent Victims of the American Medical Liability System,” which found
that three out of four medical malpractice attorneys reject more
than 90 percent of the cases they screen. The study found:

The
study recommended reforming the system by increasing
funding for legal services, so attorneys could be compensated for their
time; making defendants who lose a case pay
the plaintiff’s attorney fees; or sending
malpractice complaints to an administrative system with neutral
adjudicators and medical experts so patients wouldn’t need an attorney. 

Malpractice attorneys agree that many legitimate cases aren’t pursued,
though not because they’re greedy or don’t want to help.

Patrick Malone, a Washington, D.C., attorney who has represented
patients in medical malpractice lawsuits since 1985, said he triages cases to
focus on those that resulted in permanent harm. That’s necessary, he said,
because of the time and emotional investment the patient will need to make to
bring the case to trial, and because of his investment in the case.

Most
cases settle, Malone said, but not usually until the last minute, years into
the process. So he has to prepare the patient and himself for a long haul.

Some
patients are initially outraged when he declines to take their case, but Malone
said it can cost up to $20,000 just to assess a case and up to $300,000 in
expenses to bring a complex case to trial. If there’s a verdict or settlement
in the patient’s favor, the attorney fees eat up a third and expenses take up
more.

If
you spend $50,000 and only get $50,000, the lawyer gets nothing and the patient
gets nothing,” he said. “Nobody wants to do that.”

Some
call patients who can’t access legal system “hidden victims,” said the American
Bar Foundation’s Daniels. No one knows how many there are because their cases
never get a hearing. 

Not
all patients who suffer harm have the same experience. A small but growing
movement in the medical community encourages openness with patients when
they’ve suffered harm.

Doctors and hospital officials who subscribe to this philosophy, such as
those at the University
of Michigan Health System, the University of Illinois at Chicago Medical Center and Stanford University
Medical Center say they tell patients when something went wrong and offer
an apology and sometimes even compensation. They say the method is more humane
and often eliminates lawsuits.

ProPublica is conducting an
ongoing investigation of health care safety. Have you been harmed while
undergoing medical care? Please complete our Patient Harm Questionnaire