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

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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.

 

 

 

 

 

 

 

 

 

 

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