Under the Knife

No matter who wins a medical malpractice case, the verdict cuts both ways.

Malpractice cases, Moss explained to his client, settle late or never and can cost a fortune. You'll be personally, perhaps viciously, attacked. You'll contend with tough, even brutal adversaries, special rules that treat medical negligence far more leniently than any other kind, and blind biases in favor of the defendant... Suing is major brain damage.

--From Harmful Intent, by Baine Kerr
Five years ago on I-25 near Parker, a semi plowed into Louise Simonton's brown Chevy Astro van and sent her life hurtling out of control. Last month, her past and future collided in a courtroom.

"I knew it was going to be nasty," Simonton says. "I guess I just didn't realize the depth of how personal it would be."

Just before Christmas, Simonton lost her medical malpractice lawsuit--and lost big. The drama that played out in an Arapahoe County courtroom for three weeks in December was graphic and sometimes gripping, pitting the former cleaning woman against a well-known brain surgeon who refused to settle out of court. Going to trial created colossal risk--financial, professional and personal--for them both.

Perhaps no area of civil law is more intimate--or more misunderstood--than medical malpractice. Only one in eight victims of "medical error" even consults a lawyer, and just a tiny fraction of those will see their cases tried in court before a jury. Most will lose.

Simonton had accused her neurosurgeon of performing two unnecessary surgeries and botching one of them, damaging the nerves that lead to the muscles governing the bladder and bowel. That day in the operating room changed her life, Simonton claimed, rendering her housebound for part of each day, restricting her job options and leaving her with a humiliating choice: the constant fear of fecal incontinence or the embarrassing swish-swish of adult diapers.

Simonton had gone to Dr. Karl Stecher Jr. when she started experiencing headaches after the February 1994 auto accident. In court years later, several expert witnesses testified that Simonton had suffered a soft-tissue injury that required physical therapy and healing time, not surgery. At the time that Stecher sliced into Simonton's neck to fuse two vertebrae and remove a disk from her lower spine, an unconventional double-surgery costing $13,575, the doctor was under pressure to pay the Internal Revenue Service and the State of Colorado tens of thousands of dollars for back taxes.

Simonton's lawyer thought her malpractice case was a good bet. A colleague across town had already sued Stecher twice and won once. And in Louise Simonton, Boulder lawyer Baine Kerr saw a highly sympathetic plaintiff: Pink-collar worker with a high-school education. Divorced mom raising two kids. Victim first of a freak car accident and then, perhaps, of a surgery gone bad. A cheerful, 44-year-old chatterbox whose life had taken a horrific turn.

She would be going up against a doctor who had already testified 800 times in assorted cases and depositions. Stecher, 61, is an experienced observer of the law; he is also a self-described "take-charge" kind of guy. And by the time a five-woman, three-man jury was seated on November 30, Stecher was more than ready to face Simonton and the ugly accusations that soon would fly. So were his defense attorneys, two of the best in the business, fueled by sleeplessness, chocolate and their passion for the game, and prepared to conduct the most expensive defense in Colorado in the history of Stecher's malpractice insurance company.

The roster of plaintiff's and defense attorneys in Colorado specializing in malpractice cases is small, and lawyers often find themselves squaring off in the courtroom against familiar adversaries. Outside the courtroom, doctors and lawyers have much in common: Most are bright, driven people who thrive on the complexity of their work, hold the power to mend or break lives--and deplore the idea of losing.

Like most malpractice cases, Simonton vs. Stecher was supposed to be about justice. But it would also be about revenge.

Simonton sits in her immaculate kitchen, a cup of coffee on the table in front of her and a "Kitchen Prayer" decoupage plaque on the wall behind. A lit Christmas tree blinks just beyond her in the family room. She wears a navy-blue Mason City Mohawks sweatshirt, a souvenir from the rural Iowa town where she grew up with her twelve brothers and sisters.

The past four years have been a parade of doctor's appointments, depositions and discomfort, she says, pulling a large plastic jug of cherry-flavored NuLYTELY out of the fridge. She must drink the industrial-strength laxative every morning to clean out her bowels, then stay home until midday after it's gone to work. The problem began the day after she was released from the hospital following her spinal surgery, July 4, 1994; she rushed to the emergency room after she found she couldn't urinate. "The worst summer of my life," Simonton testified in court. "To have a problem with the bowel and the bladder and to have a doctor that denied it."

To satisfy both sets of attorneys preparing for trial, Simonton says she had to sign 34 doctors' releases and undergo dozens of "humiliating" physical and psychological exams. Once the trial began, her medical, marital and sexual history was laid naked before a judge and eight strangers in the jury box. Her bathroom habits and "bowel accidents" were publicly debated for hours on end. During breaks, she says, "I would have to put a cold rag around my neck because I could just feel my blood pressure going up. There's nothing secret about my life anymore. There are some things you just want to keep in a closet."

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