WOMEN, LAWSUITS, DOCTORS AND HOW THE MEDICAL COMMUNITY PROMOTES INJUSTICE

http://www.redflagsweekly.com/cloutier_steele/2003_oct26.html

October 26, 2003

WOMEN, LAWSUITS, DOCTORS AND HOW THE MEDICAL COMMUNITY PROMOTES
INJUSTICE

No "real" justice for women damaged by pelvic surgeries

By Lise Cloutier-Steele 

Since the publication of Misinformed Consent in Canada in 2002, and in
the U.S. in 2003, I continue to receive calls, letters and e-mails on
a regular basis, from women wanting to know how to proceed with a
civil or a class action lawsuit. As I read about their damage and the
impact it had on their lives, I wish that there were more I could do
to help. I encourage all women to stand up for themselves, but at the
same time, I need to warn them that their chances of success with a
lawsuit are slim to none.

How do I know this? In 1998, I filed a complaint with the College of
Physicians and Surgeons of Ontario, the equivalent to state medical
boards in the U.S., and I had a lawsuit going for five years until I
had to give it up last October. I had legal representation from a
well-respected lawyer in my city, an expert at medical malpractice
cases who believed I had a good chance at compensation for the harm
that was done to me as the result of an unnecessary hysterectomy. It
didn't matter that my damage was confirmed in the surgical report,
because when you're involved in a legal battle of this type, you need
to find experts willing to testify that the surgical report is
accurate, and that the damage caused fell below the "standard of
care". And anyone involved in a lawsuit soon learns that the standard
of care varies considerably depending on the case and who is
testifying for whom. Any written reports obtained from supportive
experts don't go very far either, because experts who write rebuttals
for the defense teams are highly skilled at confusing the issues and
discrediting any written evidence you bring forward.

Medical insurance companies are rich and powerful 

One of the first things I tell women is that it is extremely difficult
to fight medical insurance companies that pay for the defense of
doctors who harm women by performing unnecessary pelvic surgeries
resulting in complications and consequences, for which their patients
did not receive any advance warning. The medical insurance
organizations are prepared to spend thousands upon thousands of
dollars to make sure that none of us open the courtroom doors for
other women. The CBC's Disclosure did an excellent show on this a few
months ago. It showed that even on the rare occasion when a patient is
awarded compensation for a medical error, the medical insurance
company is prepared to spend thousands more on appeals that could drag
on for years. Most people don't have the money or the stamina to
pursue these cases to their conclusion.

This is exactly what happened to Michelle Dilieto of Connecticut.
Michelle agreed to a hysterectomy after she was told that she had
cancer. She learned that she didn't after the surgery. It took a
tremendous amount of courage, but she took her case all the way to the
Supreme Court of Connecticut and lost. Michelle wasn't ready to give
up even though the experience caused substantial financial and
emotional pressure on her and her family. She kept on fighting and won
on appeal. Soon after she faced another blow: the medical insurance
company decided to appeal the decision of the appellate court. I had
the pleasure of talking to Michelle on the telephone a couple of
times, and she has the most wonderful outlook on her situation.
Whatever happens in the end, in my view she's a champion with reason
to be proud. Anyone interested in reading more about Michelle's case
can do so at www.findlaw.com. Look for the Decision Docket #SC16698,
dated July 24, 2003, and referenced as Michelle Dilieto vs County
Obstetrics, Decision of the Connecticut Supreme Court.

Cover-up

Medical cover-up is probably the most significant factor preventing
women from getting justice. When we find experts to confirm our
damage, they are reluctant to testify on our behalf. Few will go
beyond writing a supportive report, and even then, they tend to make
these reports as ambiguous as they can so as to protect their
colleagues. One of my own experts said as much to a television
producer recently. I had been working with a film crew on a special
project, and I had arranged for the director to meet with him. The
director asked him why women like me aren't more successful with
lawsuits. He replied that it had nothing to do with me, but everything
to do with the fraternity that exists among colleagues.

Women contemplating a lawsuit should be prepared for the difficulties
they will face in trying to find a supportive expert. The vast
majority of gynecological specialists don't want to get involved in
legal matters that could result in giving testimony at a trial. One
Toronto expert was so annoyed with me for having asked for his help
that he gave me the most brutal pelvic exam I'd ever experienced. It
left me in pain and unable to walk comfortably for two days
afterwards. Since I had enough to deal with at the time, I did not
pursue the matter. I was also convinced that our legal system would
not regard this type of action as a criminal violation, not when
performed by someone with M.D. attached to his name.

One very important piece of advice I give to women is to NEVER enter
an examining room alone, especially not in the case of an examination
to prove damage. It's bad enough that women have to suffer the
indignation of lying on their back, helpless, with their genitals
exposed to a stranger --there is no need to be subjected to further
harm by an unprincipled physician who may attempt to discourage a
woman from seeking compensation through a lawsuit. Having someone else
in the room can ensure that the woman is treated with the proper care
and respect.

Disrespect, an effective tactic to discourage women from seeking
justice

I found that respect is hard to come by when you're involved in a
lawsuit. However serious the injury, lawyers for the defense, and at
times, pre-trial judges, can make a woman feel like she doesn't have
the right to complain, and that she's wasting the Court's time. It's a
problem reported by many attempting to right a medical wrong. In fact,
it's not unlike the experience of women who are raped, and who are
subsequently mistreated over and over again by the legal system for
having had the courage to file criminal charges. Women who file a
legal action, because of a poor outcome or damage as a result of
hysterectomy, ovary removal or any other type of pelvic surgery, can
expect that everything will be done to discredit and intimidate them.
Whereas little information pertaining to the doctor's reputation,
background or any previous complaints, is divulged, full disclosure of
the complainant's patient files is mandatory. Whether or not the
patient files are relevant to the surgery that caused the damage, all
have to be disclosed, leaving the complainant at a great disadvantage.

Internal damage is harder to prove

Another disadvantage is that pelvic surgery damage is almost always
internal, and therefore, harder to prove. I had high hopes for Brenda
of Atlanta who filed a civil action based solely on sexual dysfunction
caused by an unnecessary hysterectomy. Like Michelle, Brenda fought
the good fight, and she had an expert who did an outstanding job at
proving her damage. But the outcomes of sexual dysfunction, such as
loss of libido, the shortened vagina syndrome, pain with intercourse
and diminished orgasmic response, are all invisible. Imagine yourself
trying to explain this type of damage to a room full of men who likely
enjoy satisfactory sex lives with partners who are fully functional.
It's hard to enlist any empathy from others who have no direct
experience with, or understanding of, the problem that you are
describing.

Things are different for the man whose penis was unnecessarily
amputated when he underwent bladder and prostate surgery. His story
made headlines lately, and he and his wife appeared on last week's
Oprah Winfrey Show on Outrageous Medical Mistakes. The devastation of
being stripped of one's sexuality is just as great for women whose
vaginas are made too short, or those who are left feeling asexual as
the result of the unnecessary removal of their healthy ovaries. Though
there was little discussion on the Oprah Show about the man's lawsuit,
my guess is that he'll be successful. If I had money to spare, I'd bet
on it.

Statute of limitations

To the women who want to proceed with a lawsuit without legal
representation, my advice is to go ahead provided it's not going to
cost them too much money. I know of women who had to file personal
bankruptcy as a result of their legal action. Their lawyers wanted
huge sums of money for doing little in return. I tell them to look
into their state or provincial law to see if the courts would accept
that they'd be representing themselves in such a case.

They also need to make sure that they haven't exceeded the applicable
statute of limitations. If more than a year has elapsed since the
surgery, or since they learned of the damage it caused, they may not
be able to file a claim. The statute of limitations issue is what
makes the filing of a class action lawsuit even more unlikely. Each
state or province has its own set of rules on this issue preventing
many women from joining forces on such an action.

Can the legal system be improved?

Bruce Simpson, senior partner at Barnes, Sammon in Ottawa, shares some
of the views I discussed earlier, but he admits that he is not clear
on what changes in the Canadian legal system would be necessary to
help women, or for that matter, men, with medical lawsuits.

Simpson adds that one reform that has some merit would be to place the
onus on the doctor to prove that a thorough explanation of all of the
risks of elective surgery was provided to the patient. As things now
stand, the onus is on the patient to prove otherwise. He feels that
elective surgery is surgery which is not required to cure or prevent a
life threatening illness or problem, or surgery that is not required
to prevent a significant disability in the form of a serious
impairment of an important bodily function.

But Simpson notes that in cases where the failure to perform surgery
could result in death, or in something like the eventual loss of
someone's ability to walk or use their right arm, the doctor must walk
a bit of a tight rope between making sure that the patient is fully
informed of the risks, while at the same time, not scaring the
patient. Those considerations, however, have very little application
to a hysterectomy unless there is a life-threatening problem such as
cancer.

A major difficulty facing patients is what has been termed a
"conspiracy of silence". Simpson says that even though he does not
actually believe that there is a conscious conspiracy, he does feel
that there is a real culture of silence. "Doctors who know full well
that a surgeon has botched a surgery simply do not want to acknowledge
it, and do not want to get involved by giving an opinion. The result
is that even in those cases where someone has been the victim of gross
negligence by a doctor, it is often difficult to get the medical
evidence to prove it. It is not because the evidence is not available,
but rather because the people who could provide it are unwilling to
come forward. On the other hand, the defense fund which insures
doctors has an almost endless resource in the form of medical experts
with formidable résumés who, in all of the most egregious cases, can
usually find a way to defend the doctors' actions even when they
appear to be indefensible."

Women damaged by pelvic surgeries will try harder. That much is
certain, and I believe that many will eventually succeed despite the
odds. As for me, I felt that I had to give a lawsuit my best shot, and
I did. But if I had to do it over again, I wouldn't. The complaint
with the College and the lawsuit were physically and emotionally
draining, and these days I find I can achieve more by trying to
prevent others from harm and injustice BEFORE they agree to
unnecessary surgery.

Lise Cloutier-Steele is a communications specialist and a professional
writer and editor, who has survived a traumatic experience with
hysterectomy. She is the author of MISINFORMED CONSENT- WOMEN'S
STORIES ABOUT UNNECESSARY HYSTERECTOMY, and she has appeared on Canada
AM, the Women's Television Network (now W), The Phil Donahue Show, The
Body and Health Show, and several other media to talk about this
important women's health topic. She is also the author of Living and
Learning with a Child Who Stutters, and the recipient of a Canada 125
Award in recognition of a significant contribution to the community
and to Canada for her volunteer efforts to help children who stutter
and their parents.