Newspaper article The Florida Times Union

THE DEBATE OVER MALPRACTICE Revenge ... or Justice? Medical Lawsuits at Issue

Newspaper article The Florida Times Union

THE DEBATE OVER MALPRACTICE Revenge ... or Justice? Medical Lawsuits at Issue

Article excerpt

Albert Yancey was with his girlfriend that night, when she was

admitted to University Medical Center, nine months pregnant with

their son.

Yancey watched as a nurse put medicine in Cynthia Johnson's IV.

Then he saw her complain of a headache and vomit blood.

Yancey said he promised Johnson everything would be all right

as they wheeled her to the delivery room.

That night, Johnson gave birth to a son, Cynsean.

But she died a few hours later, early on the morning of Nov. 2,

1994.

Yancey said he couldn't find out exactly how she died. He asked

three or four members of the medical staff -- he can't remember

exactly how many or who -- but no one would tell him what went

wrong, he said.

But he suspected somebody screwed up and killed her. He wanted

retribution and justice, he said, and could think of only one

way to get either.

He got a lawyer.

"It's not about the money," Yancey said, referring to his

pending lawsuit, which is to come to trial in July.

"If I can just hurt somebody."

MALPRACTICE DEBATE

Yancey's reaction is a common one.

Each year thousands of people call Jacksonville attorneys,

saying they or a loved one have been victims of medical

malpractice.

The number and scope of medical malpractice lawsuits is the

center of an enduring debate in Florida.

It's a debate that hit a crescendo in 1988, when doctors were

screaming about the soaring cost of medical malpractice

insurance, and the Florida Legislature responded by limiting

how much money victims can win from a lawsuit.

And it's a debate continuing now, in the Legislature's current

session.

Among the bills being haggled by legislators are proposals by

the state's trial lawyers to make it easier to file medical

malpractice suits, and moves by health care providers to make it

harder.

To people close to the issue, nothing is more important.

Rod Brown of Orange Park said he tried, and failed, to get

attorneys to handle his claim that his mother died in 1995

because of medical malpractice.

Brown, 42, makes daily calls to members of the Duval County

Legislative Delegation, demanding a change in medical

malpractice laws.

"It's not hard to sue a doctor," he said. "It's impossible."

PLAINTIFFS' ARGUMENT

People who sue health care providers face obstacles that do not

apply to people who sue auto makers, restaurant workers, tobacco

producers or others.

The statute of limitations for filing a medical malpractice

suit is two years. Four years are allowed for other torts.

Medical malpractice lawsuits cannot be filed until a doctor or

other medical expert has reviewed the case and concluded

negligence occurred.

Doctors affiliated with state medical schools, which include

University Medical Center and Gainesville's Shands Hospital, are

granted immunity from lawsuits. Victims must sue the state

instead.

But the state law cited most often by attorneys as unfair

covers non-economic damages.

Victims can receive three types of damages: economic, for loss

of income and medical expenses; non-economic, for pain and

suffering and other intangibles; and punitive, rarely awarded

damages that punish a defendant for malicious action or wanton

disregard.

State law doesn't limit economic damages in medical malpractice

cases. But it puts a $350,000 cap on non-economic damages if a

plaintiff insists on a jury trial and refuses to send the case

to arbitration. Arbitration cases are heard by a courtapproved

referee, whose decisions cannot be appealed.

Attorneys say that portion of law weighs against the poor by

allowing a lesser value to be place on their life.

If a wealthy person is hurt or killed by medical malpractice,

the economic damages received by the family probably will be

large because of the person's large salary, said Rodney S.

Margol, a Jacksonville attorney.

But if a poor man dies, or a housewife, or a child, the

economic damages will be much smaller, Margol said.

And because punitive damages are rarely awarded, non-economic

damages may be the only way a doctor or hospital can be made to

pay substantially for negligence, said Yancey's attorney, C.

Wayne Alford.

Another limit on non-economic damages is the target of new

bills being pushed by the Academy of Florida Trial Lawyers.

If a patient dies because of malpractice and does not have a

spouse, his or her children can sue for non-economic damages

only if they are under 25 years old.

Likewise, parents have a right to non-economic damages only if

their dead child is under 25.

That bill was argued in House and Senate committees Tuesday and

yesterday. The House Civil Justice and Claims Committee voted to

essentially leave state law the way it is. The Senate Judiciary

Committee, in contrast, passed it yesterday without major

change.

DEFENDANT'S ARGUMENT

There are common sense reasons for limiting damages and making

it harder for people to file lawsuits claiming medial

malpractice, attorneys who defend those suits say.

First, economic damages aren't as unrewarding as plaintiffs'

attorneys imply, said Harvey Granger, general counsel for

Baptist/St. Vincent's Health System.

"They [plaintiffs' attorneys] are getting much more creative in

getting economic experts to come in and talk about [how]

injuries can cause years and years of [economic] damages," he

said.

Second, the age limit for noneconomic damages makes sense, said

W. Martin Smith, administrator of the University of Florida

program that handles malpractice claims.

Most children over age 25 are financially and emotionally

independent from their parents, Smith said.

Even with those limitations, state statistics indicate the

number of medical malpractice lawsuits handled in Florida courts

are on the rise.

ATTORNEYS COULD ONLY SPECULATE ON THE INCREASE.

Alford said perhaps there are more and more incidents of

medical negligence.

Charles Shad, a Jacksonville attorney who specializes in

defending medical malpractice cases, disagreed.

"We see a lot of claims . . . that are totally dependent on the

ability of the patient to find a for-hire expert to come in and

criticize the care," he said.

Tort Reform United Effort, or TRUE, a coalition of health care

providers and business leaders, are echoing Shad's sentiments

and working on a package of bills that would make it harder to

file lawsuits.

One TRUE proposal would require a plaintiff's medical expert to

be actively practicing in the same specialty as the defendant.

A REGULATORY PROXY?

There's another argument fueling the medical malpractice debate.

Plaintiffs' attorneys say the state has done a poor job of

disciplining health professionals.

As a practical matter, lawsuits are the only real avenue to

justice for people who want to do something about bad hospitals

or incompetent doctors and nurses, attorneys say.

Kitty Phillips, a lawyer who represents people claiming to be

victims of malpractice, points to Jacksonville gynecologist

Robert C. Brown as an example.

Brown was in the news last month when was arrested and accused

of coercing teenage girls into having oral sex with him in

exchange for prescription painkillers.

Between 1989 and 1993, Brown was sued dozens of times for

medical malpractice.

In early 1993, Brown appeared before the Florida Board of

Medicine. State investigators recommended that Brown's license

be revoked, but the board of 12 physicians and three

non-physicians gave him a one-year suspension and $5,000 fine.

The criticisms about disciplining health professionals have not

been missed by the state Agency for Health Care Administration,

which investigates complaints against doctors.

"Let's face it, there are stories out there of some pretty

egregious malpractice, and the public has become increasingly

alarmed," said Nina Bottcher, an agency spokeswoman.

But she also said plaintiffs often do not cooperate with the

agency, sometimes admitting they fear the probe will interfere

with their lawsuit.

And she rejected the idea that malpractice lawsuits are an

alternative to state enforcement.

Shad agreed.

"Plaintiffs' lawyers want to talk about how they're doing the

community a service," he said.

"But the fact that a doctor or nurse gets sued . . . cannot

logically be looked at as a referendum on the competence of that

physician or that nurse or that hospital."

YANCEY'S CASE

Yes, Albert Yancey is looking for money.

Yancey, 34, is unemployed and lives in a government-subsidized

apartment on the Southside. His roommate is his son, Cynsean

Yancey, who is now 2.

Yancey and his girlfriend, Cynthia Johnson, were together for

10 years. They were talking about getting married, but she

didn't want to be pregnant on her wedding day, Yancey said.

Yancey is able to sue because he is Cynsean's father, said his

attorney, C. Wayne Alford.

Yancey said he is able to support Cynsean largely by borrowing

from friends and relatives who know of his lawsuit and

anticipate future repayment.

But what drove him to sue, he said, was the illness Johnson had

before they wheeled her into delivery, and the subsequent

silence of hospital staff about her death.

"They never gave me an explanation of what happened. I didn't

get a letter, phone call, nothing," not even a note of

condolence, Yancey said.

Yancey reached Alford's firm five days after Johnson died. The

lawsuit was filed in Circuit Court in May.

Johnson, 26 at the time, was 5 foot 6 and weighed 270 pounds.

She had high blood pressure and had previously given birth

through C-section.

Because of those factors, she was a high-risk pregnancy,

according to her autopsy.

A doctor and a nurse hired by Alford to review the case

concluded medical malpractice occurred, but in a different way

than Yancey suspected.

Yancey probably saw a nurse give Johnson a drug called

terbutaline before she complained of headache and vomitted. But

it was a different drug, given to Johnson earlier in the

evening, that caused her death, Alford argues.

Johnson was given oxytocin, a drug that stimulates

contractions. Alford claims the oxytocin over-stimulated the

uterus.

It caused the placenta to tear from her womb, which in turn

allowed amniotic fluid to flow into her bloodstream. It later

caused an embolism, which is a blockage of an artery in her

lung, triggered other complications and caused her death, Alford

said.

Doctors and nurses should have understood the risks in

Johnson's case and medicated her differently, he said.

Alford filed the lawsuit against University, because it is the

employer of the nurses who were on duty that night. Also named

as a defendant is the Florida Board of Regents, which employs

University physicians.

A hospital spokeswoman referred questions about the case to

Smith, who declined to comment.

In court filings, the defendants denied Yancey's allegations.

A defendants' attorney, Gregory Snell, also wrote that the case

should be thrown out for several reasons, including: It is

barred by the statute of limitations. The plaintiff did not

comply with pre-suit discovery requirements. And the Board of

Regents is immune from liability.

That's a standard legal response to such a suit. That's OK,

said Yancey. He's got his own lawyer.

"They [hospital staff] would not talk to me," Yancey said. "But

I felt they would talk to someone whose threats would mean

something."

The trial is scheduled to start July 21.

Stuart Tannehill/staff

Photo: (c) Albert Yancey and his 2-year-old son Cynsean.

Photo: (c) Mug: Cynthia Johnson, Cynsean's mother, who died

at University Medical Center.

Sue Bashford/staff

Chart: (c)

MEDICAL MALPRACTICE SUITS ON THE RISE, AGAIN

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