Medical malpractice system often discriminates against certain patients, particularly those with low incomes. Those who can’t get representation, often women, children or the elderly, are sometimes called the ‘hidden victims’ of medical malpractice
After surgery on her ankle, Jeanine Thomas suffered a potentially deadly bacterial infection that required seven more operations to save her leg and nearly five years of recovery.
Thomas found a medical malpractice attorney to file a lawsuit on her behalf. But then he withdrew, she said, because he wouldn’t make much money if they won. Thomas had just started a consulting business and didn’t make much. Because economic damages in lawsuits are largely based on lost income, she was told the potential rewards weren’t high enough, she said.
Thomas moved on. Now, she fights for better infection prevention standards in health care through her advocacy organization, the MRSA Survivors Network. She was one of dozens of readers who shared similar experiences in the comments section for ProPublica’s recent story, “Patient Harm: When An Attorney Won’t Take Your Case.”
Their stories cut across many dimensions of the problem, so we decided to highlight a few. The excerpts below were edited for clarity, and some writers did not provide their names.
As we reported, the medical malpractice system often discriminates against certain patients, particularly those with low incomes. Those who can’t get representation — often women, children or the elderly — are sometimes called the “hidden victims” of medical malpractice. Studies show that the problem isn’t limited to states that have strict limits on malpractice awards.
In addition to commenting on the story, many readers responded by filling out the ProPublica Patient Harm Questionnaire or by posting to ProPublica’s Patient Harm Facebook group. Both are part of our ongoing reporting about patient safety, and we invite you to check them out.
1. "He was too old"
When my father passed from MRSA acquired after open heart surgery (acquired either in the hospital or rehab center) I called 40 attorneys and was told the exact same thing as the article states: He was too old, had lost his viability (translate earning potential) and had no wife (she had died). Most of them would not tell me why they would not take the case, but one did. It's not only hard to hear that your elderly parent has no value legally, but this is exactly why doctors and hospitals and other medical facilities continue their poor attempts at keeping hospitals as clean as possible. They answer to no one.
— Carol Dye
2. “What was done to me was clearly negligence”
This is really so painful to re-live. All of the attorneys I discussed my case with said that what was done to me was clearly negligence and that the case had merit indeed. However, the potential award would have fallen below the $250,000 mark, and to fight it would have been a gamble because jurors – for whatever reason – see physicians in a “can do no wrong” light and may decide in favor of the negligent doctor. I wanted to fight it out of principle more than anything else.
— Gloria Shen
3. Rejection Letter
Our son's case was a good example. There were many instances of error, but because he was single we couldn't bring case because there was no “pain or suffering” allowed for parents of adult children over the age of 25. I did call many attorneys and mostly was asked how old he was and if he was married. Then I got a rejection letter. The solution is very simple. Be honest when errors take place, and compensate victims fairly, then peace will come a lot sooner for everyone, including doctors.
4. "It was business"
I had the same issue after my daughter passed from medical harm. I did at one point have a signed contract with an attorney. He had a friend in the medical field that he felt could review her 2,500 pages of medical records. However, when his friend explained that because she was an infant who went in for heart surgery, you'd require two specialists to review my daughter’s chart and testify. I was told it would cost roughly $50,000 to $75,000 per specialist. This doesn't include normal costs for the attorney. It didn't take long for the attorney to send me a letter stating he couldn't help me. I added that letter to the other dozen all stating we had a good case, but the financial limits made it impossible for them to take it. It was business.
Although it was heartbreaking, I do understand the attorneys cannot lose that kind of money on a case. I even asked if it were possible for me to sign an agreement stating the attorney gets everything above expenses. I didn't want the money. I just wanted the hospital to have to own the mistakes.
As you read this, don't assume she passed because of her heart. The surgery was successful, as expected. It was the aftercare that killed her: Avoidable infections, overdose of heparin, lines becoming dislodged, a doctor collapsing her lung while removing a drain tube. It seemed endless but was only 95 days. One heart surgery with a 99.9 percent success rate and a week of recovery in the hospital turned into three heart surgeries, an exploratory abdominal surgery and seven hospital associated infections and 95 days later, her death. I wish there were a medical court (of sorts) that patients could go to without an attorney. They could file a complaint and sit in a room with the doctor, nurses, specialists and a panel of “judges” and plead their case. Ask their questions. No attorneys. No “specialists.” Just a place to get answers, and, if needed, monetary compensation. Personally, I just wanted answers.
5. “Dad’s life was worth nothing”
My Dad was an elderly, and he was killed by the misuse of an off-label medication that was contraindicative for his medical conditions. The harm was totally preventable. After Dad’s death, we talked to 20+ attorneys. 99 percent of them said there was malpractice and the doctor was negligent. But because of my Dad’s age and the lack of future earning, no attorney was willing to take my Dad’s case on contingency.
One attorney wrote to us that my Dad’s age was above the average life expectancy, and therefore it “seriously reduces the damages likely to be awarded for loss of future life earnings. Certainly this does not excuse the poor care he received but this makes the case economically untenable as the expenses will likely eat up the majority of likely recoverable damages. We do not have punitive damages in Washington (state) that an outraged jury could award to punish the Dr. and Hospital for their callousness. For these reasons our firm does not wish to undertake this case.”
So we learned quickly that, in our current legal system, Dad's life was worth nothing because he was old.
6. "I’ve never sued anybody"
I attempted to get recompense for my elderly mother after medical neglect that resulted in her losing her ability to walk, additional surgeries, and months of pain. I had no idea WHY the lawyers I contacted didn't even want to listen to the details. Now I know, and am disheartened to learn the reason for their disinterest. I've never sued anybody, am not one of those people who would sue when I dump coffee in my lap. But when one has a legitimate reason and legitimate damages, it's horrendous that our legal system provides no avenue of recompense for actual damage that is life altering.
7. "I am, however, alive"
I was an RN and suffered serious and permanent harm from my cancer surgery. There were many errors, including my waking up during surgery, life-threatening infection, internal sutures that did not dissolve, renal failure, a collapsed lung after hospital discharge, abscesses and wound dehiscence. Years later, I am homebound and unable to work. I would be making $80-100,000/year now or more but am stuck barely above poverty on Social Security Disability. Since I and the various insurances have spent over $2 million for my care, and I do not have enough money to obtain all the care and medications I need, I am very unhappy. I have a potential new abscess now. It is a living horror, and the cancer may return. I am always in pain. No attorney would take my case. Even the failure to diagnose the cancer for years, with facts right there for every doctor I went to with my symptoms, isn't actionable. I am however, alive.
8. "Perverse incentive"
We got dropped the moment our attorney heard mom had died. It creates a very perverse incentive when a hospital realizes that they have committed a serious harm. The best thing it can do is kill you, which is precisely what we think the hospital did.
— Debra Van Putten
9. "It was not cost effective anymore"
When I went back to work my lawyers dropped my case. It was NOT cost effective anymore.
— Ron Giovagnoli
10. "It would cost too much"
My younger brother died almost 2 years ago. He coded (his heart stopped beating) a couple days after a colostomy procedure. The doctors rushed him into surgery as he was clearly bleeding internally. They didn't find the source of the bleed, but after looking for a while, gave up and closed the surgery anyway. He continued to bleed, which led to two more surgeries, more complications and his eventual death.
We have had multiple lawyers look at the case. All of them have told us that while they believe mistakes were made, it would cost too much to prosecute the case to be worth it. Since he was 25, single and childless, there are no financial losses; no one who was depending on his paycheck. All we really want is answers and assurances that something has been done within the hospital to prevent similar mistakes from occurring again.
It is ironic that pellet plants and iron ore mines are both located in Karnataka. Yet the state obtains iron ore from Chhattisgarh at great cost of transportation, making it unviable for export
It may be recalled that, on account of illegal mining activities, the Supreme Court had banned certain mines, classified as "C" category; 51 such mines are located in Karnataka. In line with the directives on the subject, now the state government of Karnataka are in the process of finalising the modalities to auction these mines, and decide if this should be for a limited number of years and the quantum of iron ore permitted to be extracted, per annum, during the period.
Due to environmental concerns, iron ore mining activities in the Western Ghats were stopped in 2006 as per Supreme Court directives. Kudremukh Iron Ore Company Ltd (KIOCL), formerly known as Kudremukh Iron Ore has its mines situated in an area declared as a "national park".
It would be interesting to note that the estimated reserves of iron ore in the country amounts to 28.5 billion tonnes, of which 17.9 billion tonnes are classified as hematite that can be easily upgraded for use in steel making. At the moment, the domestic steel industry uses the high grade hematite simply because of non-exploitation (or inadequate) of magnetite; 10 billion tonnes are said to be located in the Western Ghats, of which, eight billion tonnes are in the state of Karnataka.
Due to the non-availability of iron ore from Karnataka, KIOCL (Kudremukh) has been obtaining its requirement from Chhattisgarh, incurring huge cost of transportation. The Indian Railways have been charging freight rates based on distance (750 kms) covered, as they manage to get whatever they can from NMDC, and do not have a "captive" iron ore mine of their own!
There is no reason why Railways cannot extend a flat "export" freight rate concession since the pellets manufactured by KIOCL are meant for export to both China and Japan, fetching an average $162 per tonne.
In fact, right now, KIOCL is in the process of executing a 300,000 tonnes iron ore pellet contract with China, which it expects to ship out between January and March this year. The first lot of 50,000 tonnes are being loaded at the New Mangalore Port, as we write this report, at the above price.
KIOCL's pellet plant is operative at Mangalore, and has a capacity to produce
3.5 million tonnes per year, provided there is continuous supply of the required type of iron ore, for which, allocation of a captive mine would be of additional help. According to Malay Chatterjee, the managing director of KIOCL, for the first time, they have been able to reach a production of 2 million tonnes, thanks to supplies from NMDC.
Malay Chatterjee had taken up with the authorities the question of making available suitable incentives to enable the factory to go in for 100% export. This would be possible with some incentives and with the additional backing of a "captive" iron ore mine.
Set against this approach, The Associated Chambers of Commerce and Industry of India (Assocham) had urged the central government to impose a duty of 30% on export of iron ore pellets, fines and lumps so that the supplies are supplied to the domestic market. This did not find favour with the Indian government.
According to the records available, India exported 210,000 tonnes of iron ore pellets in 2011-12, but none in 2012-13 when it had to import 800,000 tonnes to meet the domestic needs (as a sequel to mining ban) in 2011-12 and 14.7 lakh tonnes in 2012-13. Pellet production is actually increasing and is likely to reach 80 million tonnes by 2014.
Since the Karnataka chief minister, Siddaramiah, has suggested that, perhaps, KIOCL could be allocated a suitable mine from the "C" category (mines that were closed due to severe violations) when these are offered for auction. It is a laudable thought that would help the development of the industry locally.
After all, it is ironic that the pellet plant and iron ore mines are both located in the state, but, yet the iron ore has to be obtained from Chhattisgarh at great cost of transportation, making it unviable for export. After all, iron ore from
Chhattisgarh could be made available to somebody else closer at home, and they could save the cost of transportation too.
In any case, chief minister, Siddaramiah, may note that there are couple of iron mines, such as Chikkanayakahalli (10 million tonnes) and Ramanadurg (30 million tonnes reserves) are available that may be found useful for allocation to KIOCL.
It is in the interest of national export effort that this allocation of a captive iron ore mine is made available to KIOCL as soon as possible. It would still take several months before they can start mining operations as they may still have to go through a number of "clearance" formalities with various authorities, and until then, they need to depend upon supplies from NMDC.
Railways should come forward to ensure that export concessions are made available for iron ore despatched to KIOCL from Chhattisgarh or anywhere else since they would be exporting 100% of the their pellets.
(AK Ramdas has worked with the Engineering Export Promotion Council of the ministry of commerce. He was also associated with various committees of the Council. His international career took him to places like Beirut, Kuwait and Dubai at a time when these were small trading outposts; and later to the US.)
The wheat production this year will be an all time high production and will beat all previous records, according to Minister of State for Agriculture and Food Processing Industries, Mr Tariq Anwar at an ASSOCHAM event held in New Delhi
India is likely to achieve record wheat production on back of good monsoon, Minister of State for Agriculture and Food Processing Industries, Mr Tariq Anwar said at an ASSOCHAM event held in New Delhi today.
“We have been receiving encouraging reports as the weather has been very good and the monsoon has supported us and I think this time we would achieve an-all time high production that would beat all previous records,” said Mr Anwar while inaugurating 6th Agri Business Summit: Infrastructure, Value Chain and Partnership' organised by The Associated Chambers of Commerce and Industry of India (ASSOCHAM).
On reports of stem rust in a wheat field in Haryana, the minister informed that government has already warned the farmers and it is taking an initiative in this behalf.
“Gross inefficiencies in the food supply chain had lead to an extraordinary rise in onion prices and there was no issue related to its production which has remained steady at about 17-18 million tonnes,” said a disappointed Mr Anwar.
“There is something seriously wrong in the way the onion market operates as it is due to inefficiencies in procurement and distribution system that such extreme price distortion takes place,” he added. “There are governance issues related to licensing of wholesalers, issues related to holding capacity of farmers, issues related to market price information and a number of such issues related to the whole supply chain which creates this kind of pricing contradiction.”
“There is a need to develop an incentive system to encourage both producers and distributors or sellers to adopt new technology to maximise production as we have not been able to use even the existing technologies available to us,” said Mr Anwar.
The minister also said that presently, farmers are discouraged to produce more as most of the surplus generated from farm produce is cornered by middlemen. He also stressed upon the role of contract farming to increase farm productivity and thereby increase agriculture income in the future.
He also sought serious industry intervention while emphasising on the importance of contract farming. Most states today would not debar any company from procuring directly from the farmers provided certain procedural issues are followed, said Mr Anwar, while conceding that there are certain issues related to Agricultural Produce Market Committee (APMC) Act in various states.
Some Key highlights of the Report that was released in the Summit include:
1. The share of public sector capital formation in agriculture & allied sectors has come down from 25% in 2006- 07 to about 15% in 2011-12 where as that of private sector has gone up from 75% to 85%. Greater public sector investment in agri infrastructure is needed to facilitate further private investment.
2. The level of farm mechanization is high for wheat/rice harvesting at 60-70% and less than 5% for other crops. The level of farm mechanisation for other farming activities like soil work and seed bed preparation, seeding and planting, plant protection and irrigation is still at meagre 30%-40%.
3. The storage shortfall stood at about 330 lakh metric tonnes (MT) in 2011-12, due to record procurements by the government, which has made creation of covered warehouses an urgent necessity.
4. India’s food processing levels are at just 2% of its overall annual production, which is abysmal compared to China (23%), Malaysia (83%) and USA (65%). Hence plenty of scope remains for increasing food processing activities, which in turn adds value to the end product.
5. Viability gap funding (VGF) needs to be encouraged to upgrade agri-marketing infrastructure. This can be coupled with private wholesale markets and terminal market complexes through innovative public-private partnership (PPP) models.