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.
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.
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.
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.
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.
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.