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The myth of the litigation crisis
July 2006 | Volume 42, Issue 7

A chance at justice

Some cases seem untouchable: brought by unsympathetic plaintiffs, ridiculed as frivolous, and faced down by a public conditioned to suspect injury claims. But sometimes all those considerations are drowned out by a cry for justice so loud it can’t be ignored.

“The client who wouldn’t let me give up” by C. Calvin Warriner III
“Justice for a lost soul” by Antonio Ponvert III
“Fighting church and state” by Alan H. Perer

The client who wouldn’t let me give up

C. Calvin Warriner III

My firm gets many calls from people who believe they are victims of medical negligence. For 23 years the one type of case that I universally rejected was the claim that medical negligence caused a postoperative infection. That is, I rejected these cases until a man named Bob walked into my office.

Over the years, hundreds of prospective clients have told me they survived major surgery only to contract an infection afterward. Most people suffer only minor complications after surgery, but some endure repeated surgeries, organ failure, septic shock, long courses of intravenous antibiotics, and disfigurement. Some die from the infection.

So why did I reject these cases? Because they seemed impossible to prove. Medical experts, while admitting that many infections are preventable, point out two things. First, it is universally understood that almost every medical procedure carries a risk of infection. Second, assuming an infection was preventable, there is no way to prove when and how it happened. Behind closed doors, experts agree that most operative wound infections are caused by failure to follow time-tested aseptic techniques. But you certainly won’t find evidence of this failure in the medical record.

So I kept reluctantly saying no to deserving potential clients. Often, their stories were deeply moving, and I searched for some way to get them the justice they deserved. I called other experienced lawyers to ask if they had found a way to help these people, but none of them had. It seemed an impossible situation.

A man named Bob

This all changed the day Bob came to see me. A week after he survived emergent open-heart surgery, his chest started oozing pus. Two months and six surgeries later, he ended up in an assisted-living facility where he had to relearn how to eat and walk. Two six-week courses of antibiotics presumably got rid of the infection, but Bob was never the same. To treat the infection, surgeons had to remove his entire breastbone.

As Bob told his story, I could not help but watch his chest heaving in and out of the deep cavity left behind. For the first time in my career, I agreed to send an infection case to an expert—not because I necessarily believed that Bob’s condition was preventable, but because I had to hear from a medical authority that proper treatment could cause this horrible deformity.

To my surprise, I learned that sternum removal was not only standard but had been a lifesaving development in cardiovascular surgery. Reluctantly, I sent Bob a rejection letter. A week later, in one of the more memorable chats I have ever had with a client, Bob called to tell me he refused to let me turn him away. I explained that he couldn’t force me to be his attorney, and he replied, “That’s not fair. I know a lot of people this happened to.”

Apparently, Bob had talked to someone else in his same situation. Purely by chance, he had fallen into conversation with a patient in the waiting room one day and discovered that they were suffering from the same problem. And the two later found out they were not alone: Several other patients said they’d suffered postsurgical problems after being treated in that hospital.

For the first time, I found myself thinking about infection cases in a different light. I wondered, what if the hospital had too many cases of infection after heart surgery? Finally, I proposed a deal: If Bob could find four other patients from the same hospital who became infected at around the same time, I would reconsider. Two weeks later, he was back with four gentlemen who all told me the same story. And, they added, they’d heard of many others.

I talked to my expert, he agreed to sign the necessary affidavit, and we filed suit. Our initial discovery sought the hospital’s internal infection-control data. We soon found that we had set in motion an unexpected chain of events.

The storm of media attention that followed took me and my clients by surprise. Newspapers published derogatory stories saying we were abusing the civil justice system by filing these “frivolous” lawsuits. Doctors dismissed the patients and their families from their practices.

The judge, who seemed unimpressed with our case, ruled that the hospital’s infection-control data was privileged. My clients became uneasy, but they renewed their commitment when the press attention began to generate calls from other victims of this hospital’s carelessness. The case was growing, but we still lacked the necessary proof we needed to win.

A difficult decision

My expert explained that without the hospital’s own data, we needed to find enough patients to show a rate of infection that exceeded national standards. Patient confidentiality and peer review privilege prevented us from discovering this information from the hospital, so we had to find it another way.

After much soul-searching, we decided that the only way to accomplish this was to advertise. It was a difficult decision but one I had to make: Without the numbers, I couldn’t prove my clients’ case. Without advertising, we couldn’t get the numbers.

The ads received bar approval, but the newspapers resisted running them. By the time we agreed on content, the language was so diluted that we doubted the advertisements would reach our intended audience.

But they did—in a big way. The phone rang steadily. Over and over, the hospital’s former heart patients and their loved ones related similar experiences.

This initial success came at a heavy price. The medical community expressed shock that lawyers, and our firm in particular, would stoop so low. They called our ads “blatant ambulance- chasing.” They wrote editorials in local medical journals and complained to the bar about our “unethical” and “unsavory” actions.

People called the contact number on the ads just to criticize us for advertising. My own partners said they’d heard biting remarks from their clients and friends. They supported me, but I’m sure they didn’t appreciate the criticism.

Exposing a dirty little secret

The reward for my clients was the ability to prove their cases. The numbers my experts needed were there, and they sharply criticized a heart surgery program that would tolerate such poor results.

More important, the majority of infected patients had left the hospital with no idea there was a problem. Later, when they returned for treatment of the infection, the hospital’s doctors and nurses told them they were among the unlucky few who suffered this rare complication. Remarkably, some were even told that the infection was their own fault and they had brought it into the hospital with them. Postoperative infection was the hospital’s “dirty little secret.” Now, everyone was learning the truth.

But for a serendipitous chat between patients and family members in an ICU waiting room, the hospital’s outrageous infection rate would never have come to light. More patients would have suffered from dirty surgery and consequent infection. Some would have died.

The media attention brought ridicule to my firm and our clients, but our ads not only provided needed proof, they also caused prospective patients to be more vigilant and to ask hard questions of the hospital. Many chose to go elsewhere for surgery. Advertising seemed distasteful, even repugnant, but it led to the public revelation of a serious problem. Those ads may have saved lives.

Even the judge came around, ruling that if the hospital wanted to stand on its privilege, it could not use privileged information in its defense. That ruling, combined with the hospital’s realization that we could prove our case without its internal data, led to a settlement.

I had no idea what I was getting into when I said yes to that first infection case. I did not know I would represent so many clients, use advertising, endure sharp criticism of my ethics, or uncover what amounted to a major health crisis for senior citizens in my community. At the time, I was simply mesmerized by the sight of Bob’s chest as he breathed.

That sight forced me to take a hard look at an infection case. Since then, I have handled another similar case to a similar conclusion. And it all started with one client who wouldn’t let me give up.

C. Calvin Warriner III practices law with Searcy, Denney, Scarola, Barnhart & Shipley in West Palm Beach, Florida.

Justice for a lost soul

Antonio Ponvert III

At first glance, James Bell was not the ideal plaintiff for a wrongful death suit.

A patient at Whiting Forensic Psychiatric Hospital—part of the Connecticut Department of Mental Health and Addiction Services—James suffered from paranoid schizophrenia. He was a young, morbidly obese African-American man with a long history of assault and allegedly sexually predatory behavior. He had been institutionalized for many years, never held a job, and had little education and no earning capacity. James was a smoker and had serious medical conditions, including obstructive sleep apnea, which made it impossible for him to breathe while lying on his back.

James lived at the fringes of society. He was the type of person most of us would rather not think about. Few jurors would ever have met anyone like him, and fewer still would have any idea what his life was like or why his death mattered. Yet, my cocounsel, Jim Nugent, and I could not turn his case down.

Why? Partly because James had a family. His mother, father, sisters, and brothers cared deeply about him. And partly because James, despite all his faults and failings, his sickness and his behavior, was a human being. He had talents: He played several musical instruments and was an accomplished artist. He knew happiness: A photograph of him taken a few months before he died showed him flashing a big grin.

This flawed man was once a young boy, someone’s child, for whom his parents had high hopes. He had not always been sick. Looking at him, someone could truly say, There, but for the grace of God, go I.

But mostly, Jim and I could not turn this family away once we saw the abuse James had suffered at the hands of the people entrusted to care for him, and the terrible way he died.

A terrible death

For many months before James’s death, the staff at Whiting Hospital failed to treat his mental illness. Nobody ever prescribed Clozaril, the most effective antipsychotic medication for his condition. No one attempted to treat his obesity or to properly diagnose, report, and treat his sleep apnea—even though they knew he suffered from this condition and knew that because of it he could not breathe when lying on his back.

On April 3, 2003, after James assaulted a nurse, Whiting security officers and medical staff shackled him in handcuffs and leg irons and held him down on his back, on the floor. Unable to breathe, James began choking. Despite his obvious respiratory distress and need for emergency medical care, more than 20 staff members refused to intervene. Instead, they accused James of “playing possum,” and they all watched as he choked on his own tongue.

Nobody bothered to take his vital signs or check his respiratory or cardiac status. Incredibly, they injected him with the powerful sedative Thorazine even though he was—as they admitted—“flaccid and unresponsive,” with fixed and dilated pupils. Finally, James went into cardiorespiratory arrest and died.

We filed suit in Connecticut state court, asserting the violation of James’s Fourteenth Amendment rights to reasonably safe conditions, to adequate medical care, to protection from harm, and to be free from undue restraint and excessive force. We also sued under the state’s Patients’ Bill of Rights, which ensures the right to humane and dignified treatment, to not be medicated without informed consent, to be free from improper restraint, and to receive specialized treatment suited to a patient’s disorders.

We also brought a medical malpractice claim and sued on behalf of James’s parents for the violation of their Fourteenth Amendment right to maintain a familial relationship with their son. Sadly, so many wrongs were committed against James and his family that we had strong cases for all of these claims.

The case never went to trial. After limited motion practice and document discovery, the case settled for what is, as far as we know, the largest amount ever paid by the state mental health department in a wrongful death case. The damages were driven in large part by the defendants’ callous, indefensible behavior and by the state’s fear that a jury might award punitive damages.

But what truly made the difference in the outcome were James’s humanity and our ability to convey it to the defendants’ lawyers and the judge. Showing James as a human being who, for all his flaws, deserved to be treated with respect and dignity was a critical factor in ensuring that he and his family obtained a remedy. Money could not bring James back, but to the extent that compensation provides a measure of justice, justice was done for James Bell.

Antonio Ponvert III is a partner at Koskoff, Koskoff & Bieder in Bridgeport, Connecticut.

Fighting church and state

Alan H. Perer

I have handled several highly controversial cases in my career, but one of the most contentious has been a case brought by 27 men and 8 women who were abused by Catholic priests. In tackling this still-pending case, I have found myself battling both the state court system, which was procedurally stacked against my clients’ claim, and negative public opinion in a heavily Catholic city. To add to the difficulty, many of these victims were facing what seemed an impossible obstacle: the state’s statute of limitations.

Clearly, there were many good reasons not to take this case. And yet I am more committed to it than to any other case I’ve handled. While my clients may ultimately lose in court, I’m proud to champion a group of people whose childhoods were stolen and whose adult lives have been haunted by guilt and shame.

In 2002, a high school friend, attorney Richard Serbin of Altoona, Pennsylvania, called me to discuss my thoughts about bringing civil cases against the Diocese of Pittsburgh on behalf of abuse victims. Coincidentally, I had been handling a wrongful death case that could have been time- barred by the statute of limitations because Pennsylvania does not allow for a “discovery rule” extension in such cases. This time bar seemed unfair, and I pursued a fraudulent-concealment exception to the statute, which the trial court did recognize. This experience convinced me that a similar exception might apply to the claims against the Catholic Church.

Together with Richard; my wife, Diane, also an attorney; and a fine staff of law clerks, I began litigation. But I was naïve about the level of hostility the church would direct at us.

Intense memories

Interviewing the victims was an intense experience. Grown men broke down when they recounted their stories. Many were from broken homes or homes without a strong father figure. The priests had used terms of endearment like “my special boy.” They took the boys to their country cabins or on trips to the beach, with the approval of their unsuspecting parents.

One victim after another told me it had not seemed strange to share sleeping quarters with a priest, and they described how the “rubdowns” or hugs escalated. The priests convinced them that this activity was God’s will, a beautiful thing, and that engaging in it was good preparation for the boys’ married lives. Other survivors reported less benign memories: They were told they would go to Hell if they told about the secret relationships.

I learned that the diocese had its own quiet system of handling allegations: Many of the priests were transferred from parish to parish, some after direct reports of abuse, others after suspicions were raised. Some were assigned to rehabilitation and therapy, only to return and abuse again. Many were granted a leave of absence, administrative leave, unassigned priest status, or supervised ministry, rather than being sent to prison.

I saw the havoc these terrible crimes wreaked on these men and women. For many years they had lived with shame and guilt, which had affected their own relationships. Only now did many feel they could come forward, because they learned they were not alone.

I assumed that the church would want to help them. I was wrong. Rather than reaching out to victims, the diocese denied that the abuse had ever happened. The national reports that surfaced about these practices being a systemic problem of the church somehowin the diocease’s viewdid not apply.

The diocese did offer some counseling to victims, but only if they agreed not to sue. When counseling was provided, my clients told me, it was a sham, with handpicked “counselors” sympathetic to the church. One client was told that the abuse was his own fault and to put it behind him.

Responses and remedies

The church hired two law firms and began a scorched-earth defense. Every overture to mediate the case was met with a stony silence. The church relied on the statute of limitations to build its case, arguing that the clock had run out on the plaintiffs’ claims.

At the same time, regular articles began appearing in the media and in the Pittsburgh Catholic newspaper. A letter to the editor of the Pittsburgh Post-Gazette was signed by my former law school dean and a former chief federal judge, denouncing the case as meritless. Church-friendly reporters spread the theme that the Pittsburgh church regime was somehow different from that in other U.S. dioceses, as if it were immune from the national scandal. Lawyers for the diocese threatened us with sanctions if we discussed the case with the media.

In taking on this case, I admit that I did not quite know the hostility it would provoke. I assumed there would be some procedural difficulty, given the statute of limitations. Yes, my clients’ claims were too late by the statute’s clock, but I assumed we had a solid case showing fraudulent concealment by the diocese. After all, what were all those mysteriously transferred priests if not part of a deliberate plan of concealment?

The legal road has been bumpy. We have had mixed results. We defeated the statute-of-limitations defense in Pittsburgh, but the Philadelphia courts have gone the other way, ruling that fraudulent concealment and the discovery rules do not apply to cases against the church. The superior court upheld the dismissal, and the state supreme court did not find the case of sufficient public importance to consider it.

So what we have left are several claims that will probably survive and some that probably won’t. The superior court has left a small crack open for cases where the victim reported the abuse within the statute-of-limitations period but was lulled into inaction by the church’s response, wrongly believing that the church had no idea the priest was a pedophile. A number of our clients’ claims fit this model.

So the struggle continues, and the outcome is uncertain. Given the time, energy, and other resources we have expended, some might wonder: Why would I take a case so fraught with the potential for disaster? Because, like other lawyers who choose to accept difficult cases, I know my clients’ cause is just. Win or lose, I feel privileged to fight this battle for them.

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The myth of the litigation crisis July 2006 | Volume 42, Issue 7