A few words about the law...
From: cathy:- (anonymous@medispecialty.com)
Sun Jan 13 21:45:45 2002
First off, I'm not a lawyer, and I don't even play one on TV :-) but
this is my understanding of how malpractice law and how it works.
First of all, you can't sue the US government (or any other government)
for adhesions. The government has something called "sovereign immunity"
where they are, for the most part, immune from any lawsuit even for
their own negligence.
You can't sue the AMA, or the ACS (American College of Surgeons) or any
other broad group of people. Many members of the AMA are not surgeons
and have never done any surgery except to assist when they were back in
med school and they truly have never caused anyone to have any
adhesions. (Like dermatologists and psychiatrists...)
You can complain to your political representative, and to executive
branch officials and try to educate them. For example Congress could
hold hearings and get the insurance company managed care people, and the
medicare people out there and say "Why aren't you educating patients
about the dangers of surgery? How much money are adhesion injuries
costing us? Why aren't you making sure, *dam*ed* sure that every surgery
that you agree to pay for is really necessary?" And get the top
bureaucrats in the Center for Disease Control and demand to know why
they aren't funding research into the causes of adhesions and the
treatment of adhesions and why they aren't issuing urgent warnings to
surgeons about the surgical techniques that are more and less likely to
cause adhesions?" And of course they can ask for people with adhesion
injuries to describe the effects of adhesions on their lives. The
Congress can hold hearings about how the laws and government policies
designed to combat illegal drug abuse are injuring many, many chronic
pain sufferers by making it impossible to get appropriate pain relief.
This is fundamentally a POLITICAL process though, not a legal one. The
Congresspeople have an oversight roll over government agencies, and if
government agencies aren't doing what they should to prevent people from
being injured by adhesions (or anything else) then the Congress can get
the government employees and "call them on the carpet" about not doing
their jobs.
You CAN sue people, but you can only sue the individual doctors and
hospitals who did the surgeries that caused your adhesions. You have an
EXCELLENT case if either (or both) of the following conditions was true
about your surgery:
1) Your surgery was of dubious necessity. 50%-80% of all c-sections in
the US are unnecessary (depending on how you count). Some huge fraction
of hysterectomies are unnecessary. Even where the surgery was necessary
it is often because the case was mismanaged. The doctors futz around on
the diagnosis of an ectopic pregnancy and miss the window where it can
be treated by drugs and not surgery -- or they REALLY mess around and
don't diagnose it until the tube bursts, spraying adhesion-causing blood
and gunk throughout the abdominal cavity, and requiring an emergency
laporotomy. Or doctors do laporotomies because they do not have the
technical skill to do a laporoscopy.
That last case deserves special attention. If you had something like an
ovarian cyst, and your doctor did a laporotomy rather than a
laporoscopy, then you have an EXCELLENT case to sue him if there is any
doctor on earth (like Dr. Reich, for example) who could have done that
surgery laporoscapally. If a doctor is outside his area of expertise
and he causes injuries that could have been avoided by referral to a
more expert surgeon, then he is legally liable for those damages.
2) The second condition concerns the actual technique of your surgeon.
Research that has been around for many, many years has shown that
meticulous surgical technique will lower the probability of adhesion
formation. If the surgeon did ANY of the things on the list of "no-nos"
then you have an excellent case to sue the surgeon. If the hospital
contributed (for example they only provided surgical gloves that had
talc on them) then you have an excellent case against the hospital, too.
The important thing about this, though, is that medical malpractice is
not about class-action suits, it is always about INDIVIDUAL PEOPLE who
each have to have ACTUAL INJURIES. If Dr. Smith was a slob on every
other patient but you, and none of those other patients have
adhesion-related problems, then NONE of you can sue. They can't sue
because while Dr. Smith was negligent with them, they didn't get
injured, and you can't sue because although you got injured Dr. Smith
wasn't negligent with you. You have to have both the negligence AND the
injury. In practice this isn't as high a barrier as you might expect,
though. You have the FACT that you have adhesions, and most likely the
doctor will have a hard time PROVING that he got EVERY bleeder before he
closed. And of course once you start taking depositions under oath, who
knows what will come out? The surgical nurses, of they are forced to
testify, could end up telling all sorts of truths about bad things that
happened in the OR during your surgery.
The only sort of class-action suit that would work in the US legal
system might be a suit against somebody like the manufacturer of the
surgical gloves with the talc.
The problem with malpractice lawsuits (and why most doctors who commit
malpractice get away with it) is that patients tend to trust their own
doctors, while thinking that everybody else's doctors are the scumbags.
And since the lawsuit is about YOUR INDIVIDUAL INJURIES, not about
adhesions in general, it is a grueling, years-long process of
establishing exactly who did what and when to YOU. For many people with
adhesional injuries this is just too tiring. Rather than go through
this ordeal they just "move on" and work on the all-absorbing task of
trying to get adequate pain relief and just try to have a life with
adhesions. And so the doctors just keep doing it to more and more
people, and they are never held accountable for their actions...
In my particular case I have an excellent basis to sue under both 1) and
2) First off my c-section was simply unnecessary, and I was never warned
about the possibility that I could form adhesions from it. In fact the
only things I was warned about were some extremely rare side-effects
from epidurals, and reassured that VABC wouldn't be a problem. (Actually
my VBAC was a grueling 52-hour non-progressing back labor and I strongly
suspect that my daughter's malpresentation was caused by adhesions
pulling my uterus out of it's correct shape and alignment.) And secondly
I have very strong suspicions that if I started digging I could come up
with some lapses in surgical technique that could have contributed to my
adhesions. But what I lack are anything like the horrific outcomes that
are so common here. My pain is only on the 0-3 level (except when I
have sex) and so the jury isn't going to give me the multi-million
dollar award that would lure in an attorney. You see an attorney would
probably have to spend 10's of thousands, if not 100's of thousands of
$$$'s doing the research and legwork that would win a lawsuit. If I had
injuries like Karla, for example, why then it would be really worthwhile
for a lawyer to take my case.
One other thing to think about if you've made it to the bottom of this
and are thinking about contacting a lawyer. If you sue for damages in
the US system, you can ask for money, but you can actually ask for
anything you want. And the worst that can happen is that the jury says
no, right? But if you are suing a hospital, one thing that you can
demand in compensation is that the hospital provide adequate AMOUNTS of
pain relief, and they have to pay for it, for the rest of your life. If
you do manage to gt such a formal legal ruling in your favor, then you
get adequate pain relief for life. So if some jerk says, "you can't
stay on oxycontin forever, you know," or gives you only a 5-day supply
of pain pills per month, then you can go back to court and get the court
to enforce the decree. So YOU will have the ultimate trump to the
insane statements, "See ya in court." And I will tell you that judges
don't take kindly to having their time wasted by people who don't do the
things that the court ordered. Catch them in a particularly pissy mood
and Dr. Jerk is likely to end up in jail for contempt of court!
Is there anybody out there who is up for this battle? I think that if a
few people could go in there and win, then it would really help to
prevent many future cases of adhesions. Doctors would be afraid to do
unnecessary c-sections and hysterectomies, and they would be afraid to
do any laporotomies where Dr. Reich could have done it better. And
they would be meticulous about their technique in each and every
surgery. And they would recognize that adhesional injuries are forever
right now and they would be afraid to offer any adhesion sufferer
anything less than the best in pain relief.
--
cathy :-)
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