Under the Knife
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."
This year approximately 150 other Coloradans will, like Simonton, bare their life histories, abandon their privacy and force their physicians into the legal system. Only one-third of those will sue to recover financial losses due to alleged medical negligence; most of the others will turn to the courts because they feel violated and emotionally foresaken by the professional they most want to trust: their doctor.
"I trusted this man so much to be honest with me," Simonton says of Stecher. Then she put her faith in the jury. And after jurors found in Stecher's favor, "I cried for days," she says. "I'm pretty angry. It's tough."
When Karl Stecher pulled into the Arapahoe County Justice Center parking lot in his white Lincoln Mark VIII, with its vanity license plate spelling BRAIN and its backseat scattered with patients' files, MRI films and copies of the Journal of the American Medical Association and the Wall Street Journal, he was hardly heading to court for the first time.
Stecher has testified in hundreds of civil cases, mostly for patients making claims for injuries sustained in auto accidents (and often collecting up to $600 an hour for his testimony). But several dozen civil cases filed in Colorado name Stecher as a party, including a handful of malpractice cases. In the 1983 wrongful-death suit Fresquez vs. Stecher, Stecher was accused of neglecting a 21-year-old patient who had undergone emergency brain surgery for an aneurysm. When Fresquez didn't wake up in the recovery room following surgery, Stecher gave directions over the telephone to a resident rather than drive the fifteen or so blocks from home to check on the patient, according to the plaintiff's attorney. After falling into a temporary coma, Fresquez was severely brain-damaged and spent more than a year in a nursing home before he died. The jury awarded Fresquez's widow $200,000 in damages.
In 1996, Stecher sued Swedish Medical Center for $1 million after the cancellation of his trauma-services contract, his number-one referral source for patients in 1994, according to court documents. That case was thrown out on summary judgment; details have been sealed by order of the court.
The grandson of a German-born cowboy and son of a Yale-trained judge, Stecher cuts a figure that is larger than life. His full head of silver hair and mustache top a generous, straight-backed frame. His folksy conversational style belies an impressive resume: a B.A. in English from Harvard in 1959, medical school at the University of Maryland, a seven-year residency at Johns Hopkins Hospital, a stint in the Army at the Walter Reed Institute of Research, assistant chief of neurosurgery at Denver General for nearly a decade, and nine years as associate professor of neurosurgery at the University of Colorado Medical Center. He has invented three surgical instruments, including a neurosurgical micro-ruler and an arachnoid knife for cutting a delicate membrane covering the brain and spinal cord.
Encouraged by his father to become a doctor, Stecher planned to go into family practice until he took a neuroanatomy class in medical school and became fascinated with the nervous system. From that point on, he says, "I always wanted to do the ultimate in medicine."
The accomplishments began early. As a boy in Chevy Chase, Maryland, he set his sights on becoming an Eagle Scout, the Boy Scouts' highest honor. The toughest merit badge to earn was the bird-watching badge, so that's the one Stecher attempted first. It didn't take long before he was hooked on ornithology: In high school, he and his buddies would pile into an old car and drive to the Eastern Shore to look for rare birds.
Stecher continues to be a "chaser," traveling across the country to join other aficionados when a rare bird is sighted. (In August he burned up a frequent-flyer ticket to see a broadbill sandpiper that had been spotted near New York's Kennedy airport, then turned around and flew back to Denver.) With 776 birds on his "life list," Stecher is rated as the 32nd most-accomplished birder in the United States. He beams when he recalls his finest moment in high school: spotting a Bachman's warbler. Even the late Roger Tory Peterson, Stecher's friend and the author of Peterson's Field Guides, never saw the bird, now considered extinct.
The father of three girls takes pleasure in teaching his youngest, three-year-old Priscilla, the names of common birds perched on telephone wires near their Greenwood Village home. But with his medical practice, his family and his bird-watching, Stecher has little time to indulge another hobby: acting, an amateur interest that culminated in his "walk-by" role in the John Denver movie A Christmas Gift.
Neurosurgeons slice, dice, rearrange and repair the electrical circuitry of the human body, including control central--the spine and the brain. The field is notorious for attracting, and feeding, big egos. Other specialties have their own stereotypes: Internal medicine doctors are usually the contemplative sort; orthopedic surgeons tend to be ex-jocks with big hands and perhaps personal histories of knee surgery. Neurosurgeons have exceptionally fine motor skills and generally "a take-control type of personality, an accomplish-type thing," Stecher explains. Being in the operating room "is an awesome responsibility," he says. "You are in some ways playing God, but you are not God."
Sipping from both a cup of black coffee and a Diet Coke in his lawyers' conference room, Stecher explains how the Simonton case hung over him for four years, creating stress for his family, filling his office with boxes of correspondence and court documents. During the three-week trial, which he attended every day (usually wearing the same navy pin-striped suit), he still had to cover overhead office costs of nearly $1,000 a day, he says.
While the Simonton jury approved Stecher's skills as a surgeon, like many doctors, he's proven himself a horrendous financial manager. At one time he owed the IRS and the State of Colorado close to half a million dollars in back taxes, interest and penalties, according to court testimony. Stecher and his lawyers attribute the debts to Denver's economic bust in the mid-Eighties and tax reforms in 1986 that turned Stecher's Colorado real-estate holdings into "financial albatrosses." After bouncing at least two $15,000 checks to the IRS in mid-1994, Stecher is now "virtually debt-free," says one of his attorneys.
Stecher didn't go into private practice until 1982, when he was 45. Like half of Colorado's fifty-some neurosurgeons, he built his practice by accepting patients who'd been injured in auto accidents--and "come with a lawyer attached," he says. Most are referred to him by attorneys, family doctors, chiropractors or emergency-room physicians. Simonton found him by looking through the Yellow Pages for a doctor near her home.
When a patient takes her physician to court, as Simonton did when she filed suit, "you feel betrayed," Stecher says. "You've done everything you can to take care of this patient, and this patient has betrayed you. I believe...she had to be talked into this by her lawyers."
The suit didn't just make Simonton's personal history and Stecher's disorganized finances fair game. Simonton claims that private eyes sat outside her home for hours on end, prompting the neighbors to complain. Stecher reports that investigators called his ex-wife in Pennsylvania and asked whether Stecher was the type of doctor who would perform unnecessary surgery for the cash. She told them to get lost.
"They assaulted the very being of me as a physician," he says. "I am a physician. I take care of people. It's a profession, it's not a business. As a professional, you have the greater good of the people you're responsible for as your primary goal. This person, Baine Kerr, assaulted me by alleging that I had operated when it wasn't necessary, and he alleged that I operated just to make money. That is not who I am. That is not who I ever have been."
Stecher says he never knew what was running through the jurors' minds. "You're sitting there every day," he recalls. "They may smile or they may not smile. You're sitting there waiting for a verdict on the Friday afternoon of the third week, and you don't know what's going to happen to your life."
In the courtroom, the fate of the take-charge brain surgeon--professional life or death--lay in the hands of his attorneys. "It's a role reversal," Stecher says. "They're the surgeon and I'm the patient."
Like a million other lawyers he'd felt the urge to quit shudder through him like a fever chill. He'd looked with dismay on the decline of his profession, the rapacity, rancor, and deceit of an adversary system in extremis, ever less up to the tasks of justice.
--From Harmful Intent
Through the metal detectors, past the American flag, into the paneled rooms where average citizens must shake out truth from lies: It was here at the Arapahoe County courthouse, splayed out on a hill of yet-undeveloped Colorado prairie, that Baine Kerr again came face-to-face with Irving Johnson.
Simonton vs. Stecher was perhaps their tenth time on opposite sides of a case. The trial would be in the fourth-floor courtroom of Judge John P. Leopold, a man with a full black mustache and a knitted wool vest under his judicial robe, who presided over the proceedings like a stern but kindly school principal.
"Karl Stecher and Louise Simonton are as different as two people can probably be," Kerr would state in his closing argument. The same is true of their attorneys.
A Houston native, Kerr attended college in California, where he edited Place magazine, a literary quarterly published by the Whole Earth Catalog. In 1973 he moved to Boulder, and completed both a master's in English and a law degree at the University of Denver. He began practicing at his current firm in 1979, eventually specializing in the areas of personal injury, product liability and medical malpractice. His courtroom attire tends toward khaki and tweed. Like Stecher, he is an avid bird-watcher, with about 380 species on his life list.
In his off-hours, Kerr writes--short stories, novels. His work has been published in Best American Short Stories; Harmful Intent, a "medical thriller" gushingly endorsed on the cover by friend and best-selling author Scott Turow, will be published April 15 by Scribner. The plot revolves around--what else?--a medical malpractice suit. Although the characters are all fictitious, says Kerr, some of the events are based on experiences he's had in local courtrooms.
In the book, the plaintiff's attorney wins.
Simonton's case initially was scheduled for early 1997, not long before Kerr was set to go on a sabbatical in the Netherlands, where he'd polish his novel and observe the work of the Bosnia war crimes tribunal in The Hague. But the trial was delayed because of the court's overflowing docket, so Kerr headed to Europe with his wife and son. When the case was rescheduled for April 1998, he bought a ticket back to Denver and was ready to board the plane--when the case was postponed again.
Only fifty or so plaintiff's lawyers in Colorado are willing to even consider taking medical malpractice cases. But Kerr likes them; each case forces him to develop an expertise in one slender area of human anatomy. Medical malpractice "is factually very complex and legally very complex," he explains. "It's not the sort of case where you're asking witnesses, 'What were you doing at eleven o'clock on the night of February 15?'"
Doing battle with doctors and hospitals often means taking on the medical establishment--so victory can inspire "a perverse sense of accomplishment in some attorneys," says Kerr. Patients are frequently the underdog, and their stories hurt--particularly when they suffer from cancer that was caught too late. "When you're working with someone who is dying of cancer where it could have been found and could have been cured," he says, "you develop a strong allegiance to the client."
For a defense lawyer, says Stecher's attorney, defending a doctor in a medical malpractice case is not unlike a doctor trying to save a patient. "How I feel when I take on a client is no different than he feels when he takes on a patient, or how you feel when you take on a friend that you care about," says Irving Johnson, the highly respected defense attorney whom local docs call "Ernie." The son of a Denver lawyer and judge, Johnson first weighed a career in medicine but later switched to English education. While in graduate school, he made another switch, this time to law.
Over the years, Johnson has defended doctors, hospitals and health-care providers in some hundred jury trials. He's also become something of a lay expert in medicine, sprinkling his cross-examinations with physician's Latin and basic lectures in anatomy.
Cleaning his glasses with his tie, Johnson explains how he first spotted legal partner Peter Pryor on the opposite side of a Cheesman Park volleyball net while he was still in law school. When Johnson went to apply for a law clerk's job, "I walked into the office--and there was my arch-enemy from the volleyball court," he laughs. "But they hired me anyway." The two have been friends and colleagues for nearly thirty years.
Johnson headed into the Simonton trial almost immediately after wrapping up a three-week wrongful-death case. Since Simonton would involve another string of exhausting, sixteen-hour workdays, Johnson asked Pryor to join him at trial. It's extraordinary to have two senior partners from a law firm working on the same case. But because Stecher refused to settle out of court and thus risked punitive damages, Johnson insisted on enlisting Pryor rather than a less experienced--and cheaper--lawyer. Stecher's insurance company agreed but capped the attorneys' billable hours at eight hours each on trial days.
"I knew this was a losing proposition when Ernie asked me to come into this case," says Pryor, an amiable jokester who, like Johnson, has been named as one of the state's top ten defense attorneys by his peers. "I knew that in the pure sense of making money that this was not a moneymaker. So what do you do? You get up at 1:30 in the morning and you work sixteen hours a day. And every hour longer that you work, your income-per-hour for the two of us goes down. And guess what happens? Not a damn thing, because professionalism drives what you do."
"These guys realize, especially in this particular case, that it's my life on the line," Stecher adds. "If they sort of fluff through and spend eight-hour days and don't do the job and maybe don't find out one or two or thirty facts, they can lose the case that loses their patient." The situation is like being in the operating room with a patient "with some artery that's bleeding deep in the brain," he says. "It's me, Karl Stecher, the neurosurgeon at two in the morning, or two in the afternoon, or ten in the morning, with this thing that's bleeding, and if I, with all the skills I've obtained, don't fix it, I'll have a dead patient. And it's me, and it's only me."
Faced with two big guns like Johnson and Pryor, Kerr brought on a second lawyer, Macon Cowles, a Boulder attorney who'd successfully sued Stecher in the Fresquez case.
Dr. Karl Stecher is insured by The Doctors' Company, a California-based concern that insures about 20,000 health-care providers. On the Web, the company's home page displays a pair of bright-red boxing gloves and the slogan, "Nobody Defends Doctors Like The Doctors' Company." An inside page features a crusader's shield and this rallying cry: "Tort Reform Is More Than a Campaign--It's a Crusade."
In the mid-Eighties, a series of tort reforms drastically changed medical malpractice law in this state. The push to reform tort, or negligence, law came about for "practical reasons," explains Edward Dauer, dean emeritus and a professor of law at the University of Denver, who was appointed by former governor Dick Lamm to chair the state's tort-reform commission. (Neurosurgeon Karl Stecher also sat on that first tort-reform panel.) Twenty years ago, steep hikes in jury awards--and thus higher insurance costs--were forcing churches to close their daycare centers; rural obstetricians could no longer afford to deliver babies.
The forty-member panel sent its recommendations to the legislature, which enacted a number of reforms. The biggest changes were caps limiting damages for malpractice against a hospital or physician to $1 million. Of the $1 million, no more than $250,000 can be attributable to non-economic loss or injury. And in most cases, punitive damages may not exceed the amount of actual damages.
Those caps have had a "whipsaw effect" on his profession, says attorney Kerr. Malpractice cases are extremely costly, because they require many hours of medical research, consultation and high-priced expert witnesses. Tort reform "has eliminated a lot of valid claims that are going to be too expensive to try," he says. "Caps have had a dire effect."
Along with caps, the public's attitude--particularly in the wake of the infamous McDonald's hot-coffee verdict in New Mexico--has complicated a plaintiff's attorney's job. "Lawsuits for personal injury and medical malpractice have a very bad reputation," says Cathryn Hazouri, former president of the Colorado Trial Lawyers Association and an experienced plaintiff's malpractice attorney. "Institutions have done a good job making it seem like they're being sued left and right."
Only 50 of the 1,400 members of the Colorado Trial Lawyers Association will even consider taking on a medical negligence case. "These cases are very hard to prove," says Melanie Layton, CTLA spokeswoman. "They have to be so clear-cut to ever go to trial."
To find a defendant at fault in a medical malpractice case, jurors do not need to determine guilt "beyond a reasonable doubt," as at a criminal trial; they need only a "preponderance of evidence." Still, the vast majority of juries side with the physician. "We all want to trust our doctors," says Hazouri. "We all want to think that doctors aren't going to be negligent. I think there's a natural tendency toward that."
In fact, it's often that same factor of trust--or mistrust--that leads to a lawsuit. "There's a very, very high correlation between the decision to bring a claim and the quality of the relationship an individual has with the physician," says DU law professor Dauer, citing a Harvard study. "Of all people who've been seriously injured by medical error--not negligence--fewer than one in eight ever brings a claim."
Of those who sue, only one-fourth do so primarily to reclaim expenses, according to that study. The other three-quarters feel let down and emotionally abandoned by the physician (the doctor didn't express regret, let alone guilt); want to know exactly what happened to them medically (often doctors are advised not to talk to the patient about their "medical error"); or want to make sure no one else has to experience what they have gone through.
But these days, few people are suing. In 1998, only 157 medical malpractice suits were filed in Colorado, less than 0.4 percent of all civil cases. The previous year, plaintiff's attorneys filed 171 new medical malpractice suits.
"Colorado has become a fairly stable malpractice market," says George Dikeou, general counsel for Copic, which insures 4,500 Colorado physicians, or about 75 percent of the non-government-employed doctors in the state. "Obviously, I have a bias--but that's been a good thing, I think, because Colorado physicians are no longer subject to wild swings in insurance rates." In the 1980s, doctors insured by Copic had to swallow 50 to 70 percent increases in their insurance premiums each year. Coverage for obstetricians hit $65,000 in 1981; it's now $25,000 a year, Dikeou says.
Most claims that Copic sees today are for misdiagnosis of breast or colon cancer, or for errors in laparoscopic surgery, in which surgeons using new technology are at risk of bumping into blood vessels or damaging nerves. In 1997, 84 lawsuits against Copic clients were settled prior to trial. Another 82 were voluntarily dismissed; 22 were dismissed by the court. Only 21, or 10 percent of the total filed, actually went to trial. And of those 21, only three were won by the plaintiff, for an average verdict of $513,000 to cover allowable costs, interest and damages.
In the average malpractice case, a plaintiff can expect to shell out at least $50,000 for depositions, exhibits and expert witnesses for his side alone. And although many law firms eat the loss when a client goes down in flames, "the plaintiff is legally responsible for all costs," explains Jeni Dingman, coordinator of Persons United Limiting Sub-Standards and Errors in Healthcare, a consumer group based in Pueblo. "And there's no guarantee you're going to win. It has nothing to do with justice. I don't know anyone who's sued a doctor--with one exception--that didn't end up on public assistance. So the taxpayers are paying for doctors' mistakes, not the insurance companies."
Simonton was lucky to even find an attorney who would go to the mat for her, says Dingman. "Many lawyers will say, 'You have a great case, and I hope you can find someone else to take it,'" she says. "The lawyers are just not willing to fight. They've given up."
"I felt dirty even asking about it," says Beth Gray of Evergreen, whose infant son nearly died eight years ago when his pediatrician failed to diagnose a common, treatable but potentially fatal genetic condition. Two lawyers refused to take her case; when she mentioned the word "lawsuit," even friends "started treating me like, 'You're just in it for the money.'" Instead, she took her complaint to the Colorado Board of Medical Examiners, the eleven-member body charged with licensing and disciplining doctors in the state, which finally punished the doctor with a "letter of admonition"--a "slap on the wrist," says Gray.
One of the reasons malpractice suits are so difficult to try--much less win--is that they rely heavily on testimony from experts in the same field as the defendant, and local doctors are highly reluctant to testify against one of their own. Hazouri says there's an unwritten commandment: "Thou shalt not testify against thy brethren or sistern."
"It boils down to what goes around, comes around," adds Rick Smith, a Denver neurologist who testified for the plaintiff in Simonton vs. Stecher. "None of us are perfect--chances are many of us will get hit with at least one suit at least once in our careers." Medicine is not a perfect art; patients sometimes get worse or die, no matter what the doctor does. "Does a bad outcome mean bad care?" asks Smith. "No, it doesn't always mean that."
Often experts have to be imported from out of state, which adds to the cost of a malpractice case. For the Simonton case, a neurosurgeon flown in from Houston to testify for the plaintiff ran up a trial tab of $21,000, including $1,300 an hour for trial testimony ($5,000 daily maximum) and $1,000 an hour for a deposition. With the judge's permission, the trial took an unconventional pace--with witnesses for the plaintiff alternating with witnesses for the defense, so that both sides could accommodate the schedules of their high-cost, out-of-state experts.
Add to those fees the price of four attorneys, travel expenses (Kerr, who lives in Boulder, took up residence at a Holiday Inn near the courthouse during the trial), countless hours of work by paralegals and secretaries, and extra costs when the case was continued twice. "I have been told that this case from its inception is the most expensive case that The Doctors' Company has had," says defense attorney Johnson. He will ask the court to award his client about $156,000 "for awardable expenses, which are probably 30 percent of all expenses."
Through the case, Stecher was adamant in his refusal to settle--and his insurance company backed him up. But although all Colorado physicians must carry liability insurance (or possess a bond of equivalent worth), that insurance does not cover punitive damages--which Simonton's suit demanded. Had the jury found Stecher guilty and awarded a punitive claim, the neurosurgeon would have had to pay that sum from his own pocket. "Karl is in the golden years of his practice. He doesn't have forever to plan for retirement," says attorney Pryor. "It's a heck of a choice for physicians to make that decision."
Kerr says he was reluctant to ask for the $250,000 punitive sum, as well as $250,000 for past and future non-economic damages for his client. Under Colorado law, attorneys can't file for punitive damages until after a lengthy discovery process and the judge's okay. "I know what the impact on someone's reputation can be," adds Kerr, "and offered all sorts of opportunities to settle."
Although he defends the state's tort reforms, law professor Dauer doesn't defend the adversarial tort system in general. Ninety-five percent of malpractice cases are settled "in the shadow of the law," out of court and for undisclosed settlements. "It's just a way of short-circuiting the system," he says. "It's not a way of using the system to result in better patient safety."
Dauer, who teaches medical malpractice and health law, says that most errors in any profession stem from a failure in the "system"--the workplace, the way people are trained, the procedures they follow, and so on. Yet medical malpractice law "focuses not on a system, but on one person, the doctor." Fearing punishment, doctors generally want to hide information, not expose it--and that does nothing to help correct systemic problems that can cause patients harm. "The legal system," says Dauer, "may be having some strange backward kinds of effects."
Because even when a case goes to trial and a bad doctor is found guilty and the injured patient finds justice, "somebody writes a check," he notes. "Nothing has changed."
After years of preparation for Simonton vs. Stecher, each side had only half an hour to interview the jury pool of sixteen Arapahoe County residents and narrow it to six jurors and two alternates. It later turned out that one of the jurors had cerebral palsy and another had once suffered from polio--severe diseases that both had overcome. Once the jury was seated, the case's fate may have been a foregone conclusion.
But jurors had to sit through three weeks of trial anyway. Day after day, the sales manager, TV cameraman, homemaker and others learned about the wiring of the spine, the plumbing of the colon and the integrity of the two parties involved in the suit. The jurors, who sometimes came to court in reindeer sweatshirts and earrings resembling Christmas ornaments, were allowed to take notes and, under Colorado's recent Jury Reform Act, to ask witnesses questions through the judge once formal testimony was over.
A parade of experts placed on the stand debated whether or not Louise Simonton suffers from partial cauda equina syndrome, a collection of problems--different in each case--that can occur when the dura, the sack protecting the "horse-tail" of stringy nerves in the spine, is cut. These nerves normally float freely--like cooked angel-hair pasta--in the spinal fluid contained by the dura. But when the dura is cut or torn, the nerves can float out, become stuck together with blood, or otherwise suffer damage.
Kerr argued that Stecher had cut into Simonton's dura and that the resulting case of cauda equina syndrome caused her bladder and bowel problems. But in his closing statement, Johnson countered that a variety of unrelated factors could be to blame. "It is not possible for anyone to tell you precisely when, why and how" her condition arose, he said.
Both sides used props to dramatize their arguments. The plaintiff's attorneys used a tall beaker of crimson Jell-O to represent the 1,200ccs of blood, about 25 percent of the blood in her body, that Simonton lost during Stecher's two-hour, 21-minute operation on her lumbar spine. Johnson displayed Simonton's medical records on an overhead projector to demonstrate her inconsistent reports of symptoms and presented large color drawings of the vaginal area to show where Simonton said she had lost sensation and sexual function. He also got to show a letter that the defense had battled to get admitted, racking up $10,000 in costs in the process.
The letter was the draft of a note to the Colorado commissioner of insurance, written by Simonton on loose-leaf notebook paper in her large, loopy script. She testified that she'd written the note at Stecher's insistence so he could be paid by her insurance company for the already completed surgery; he denied it. The note listed details about Simonton's car accident and surgery that were at odds with her testimony in court.
In an attempt at damage control, Kerr explained that the letter was written by someone who was stressed and confused. Throughout the trial, he characterized his client as vulnerable and naive; at one point, he gently referred to her as a "ditz."
Kerr: "Do you sometimes say things for no good reason?"
Simonton: "Sometimes they call me a motormouth."
Kerr: "Do people say you're gullible?"
Simonton: "People tell me I believe too much, I'm too trusting."
The jurors felt that both Simonton and Stecher "stretched the truth" in their testimony and thought the doctor seemed "stuck up" before he took the stand. But in the end, "it came down to just one thing," says Donald Link, a plant engineer for US West who was elected jury foreman. "Louise was not a person who took responsibility for herself."
The jury's two alternates were impressed enough by Stecher's testimony that they both said they'd go to him if they ever needed neurosurgery.
As the judge read the long list of "not guilties," Stecher latched a big arm around each of his attorneys' shoulders and grinned broadly. Alone, Simonton quickly left the courthouse, wearing no winter coat even though an arctic front was on its way. After suffering the third trial defeat of his nineteen-year career, Kerr, too, left swiftly, driving off in an aging gold van.
Kerr has vowed to appeal, a process that could take another two years. Stecher's attorneys will be waiting.
"Some doctor in a meeting once said [that being in a malpractice case] was like being deposited in a fast-moving stream," says defense attorney Pryor. "When you end up with the process, you're miles and miles downstream, never to return again to where you were before."
Had novelist Kerr written this story, the destination would have been very different. "It's certainly nicer when you're making it up," he says, "and you can make it end better.
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