Relief in court is rare for hospitals' injured

While the medical malpractice debate in Washington focuses on patients who receive enormous jury awards or settlements, doctors, consumer advocates, and others in the healthcare industry are starting to worry about a much larger group: injured patients who receive nothing at all.

Fewer than one in 15 of the more than 750,000 patients who suffer injuries in the hospital each year ever file a lawsuit, according to figures from the Harvard School of Public Health, and only about a quarter of patients who sue ever receive money. For every plaintiff who wins millions of dollars, say critics of the malpractice system, there are many more patients like 13-year-old Sarah Deckert of Framingham.

Sarah was taken by helicopter to Children's Hospital in Boston in July 2001, suffering from a cerebral hemorrhage just shy of her 10th birthday. Though the hemorrhage eventually stopped on its own, a test that doctors used to study the bleeding caused a rare spinal injury that left Sarah's arm and leg muscles wasted and her hands permanently clenched, unable to tie shoes or open a jar. Today, she is so unsteady that she requires leg braces, and she has broken her arm four times in falls since the stroke.

Yet, three different law firms rejected Cheryl Deckert's proposal to sue Children's and the doctors who performed the angiogram test on her daughter, saying they did not have enough evidence to prove the care was negligent rather than just tragically unlucky. Cheryl Deckert, a single mother, was left to pay thousands a year in medical and transportation costs for her daughter and still suspects that the hospital is covering up doctors' mistakes.

''I see disasters all the time" similar to Sarah Deckert's disabilities, said longtime malpractice attorney Leonard Simon, who advised Cheryl Deckert not to sue. He said he turns away about 49 out of 50 potential clients, largely because litigation is so time-consuming and costly that evidence must be clear-cut. Even then, he added, doctors usually win cases that reach a jury.

Children's Hospital said Sarah's injuries -- caused by a stroke that struck her spine rather than her brain -- were an ''unpreventable complication" of good care given while doctors feared her life was in danger. But hospital officials agree that the liability system is so focused on assigning blame that victims such as Sarah Deckert and her family get shortchanged. Under Massachusetts law, the amount of damages that can be collected from a hospital is severely limited, making it necessary for a plaintiff to focus on individuals.

''There are gaps in our nation's healthcare and insurance systems and this is one," the hospital said in a prepared statement. ''As a society, we need to develop better systems to provide support to these families."

The current malpractice debate scarcely mentions people like Sarah Deckert, concentrating instead on the soaring liability insurance premiums for doctors that have driven some practitioners out of high-risk specialties like obstetrics. Malpractice insurers blame legal defense costs as well as the rising cost of settlements and verdicts, which now top $300,000 per payment, though trial lawyers say the insurance crisis has been exaggerated.

The main malpractice reform plan in Washington, President Bush's proposal to cap damage awards for plaintiffs, is intended to curb insurance increases, but doesn't address the deeper problems, even cap supporters admit. The Physician Insurers Association of America, which represents doctor-led malpractice insurers, calls the proposed $250,000 limit on awards for pain and suffering a good ''evolutionary" change, but also calls for ''revolutionary" reform such as the creation of courts to hear only medical claims, so that liability standards are more uniform and more patients have their day in court.

''We have no problem compensating injured victims. That's what we're here for," said association spokesman Dax Gonzalez. ''We have a problem with all the inefficiencies" in the current system, such as the four to five years for an average case to be settled and the fact that half the money paid in malpractice premiums goes to legal costs rather than patients.

Other advocates say that the malpractice system encourages healthcare providers to remain silent about mistakes, undercutting efforts to improve patient safety. They want to get away from courts altogether, setting up a schedule of payments for victims of medical mistakes if they can simply prove their injury was ''avoidable" rather than a result of negligence. Last month, the panel that sets standards for US hospitals, the Joint Commission on the Accreditation of Healthcare Organizations, included this so-called ''no fault" system in its menu of reforms that could create a ''patient-centered" malpractice system.

''Medical justice is no longer reliable and has infected healthcare with a debilitating distrust," said Philip K. Howard, chairman of Common Good, a legal reform group, at the Washington press conference unveiling the joint commission's reform agenda.

It's by no means certain how Sarah Deckert would have fared under the various reform proposals, but longtime reform advocates such as Dr. Troyen Brennan of Brigham and Women's Hospital say Deckert could be a poster child for what is wrong with medical justice today.

The Deckerts' ordeal began on July 27, 2001, when Cheryl Deckert took her daughter, then 9, to MetroWest Medical Center in Framingham after she complained of headaches and nausea. A CT scan revealed a potentially life-threatening cerebral hemorrhage, and MetroWest doctors immediately arranged an emergency flight to Children's Hospital, which specializes in pediatric neurosurgery.

In children, cerebral hemorrhages are sometimes onetime events that stop on their own and don't recur, according to Dr. James Drake, chief of neurosurgery at the Hospital for Sick Children in Toronto, and that is apparently what happened to Sarah Deckert. However, doctors at the time had no way of knowing that she would be all right, Drake said, so they were right to prepare for brain surgery and to call for an angiogram to give them a better view of Sarah's hemorrhage.

An angiogram involves injecting dye into the bloodstream so that vessels show up clearly on an X-ray. Healthy children have complications from angiograms less than 1 percent of the time, and Drake said he had never heard of a stroke in a child's spine, though he said it was biologically plausible.

Cheryl Deckert said the junior doctor assigned to brief her on the treatment plan didn't fully explain angiogram risks when she asked if it was ''really necessary." She said Dr. Sandip Basak told her the main risk was a skin infection and did not explain that a stroke in the spine was possible. Children's officials declined to discuss details of the case, and Basak, who has left the hospital, could not be reached.

Had she understood the dangers, Deckert said, she would have urged doctors to delay the test since Sarah's condition seemed to be improving on its own. Instead, she signed a consent form that listed ''stroke" as a possible complication, and Sarah underwent the angiogram that evening. The next morning, Cheryl Deckert discovered her daughter completely paralyzed, something that the overnight nurse had failed to notice.

Sarah gradually recovered movement in her arms and legs. Today, she can walk with difficulty and do some things with her hands, such as grip a pen. But she will never again be the soccer player in the pictures on her mother's refrigerator, and she had to stop playing the flute as well.

A Children's Hospital investigation concluded that Sarah's stroke was caused after a blood clot formed on the catheter used to inject the angiogram dye. When the clot broke apart, a portion blocked a blood vessel near Sarah's spine, killing tissue in the area.

Children's officials did find fault with aspects of Sarah's care in a report last fall to the state Department of Public Health. The report noted that Sarah's overnight nurse failed to document the girl's growing paralysis, and said it was ''not clear" whether Basak followed Children's procedures for fully informing Cheryl Deckert about the angiogram risks.

However, the hospital found that there was nothing the doctors and nurse could have done to prevent Sarah's stroke. ''Despite the best efforts of the Children's Hospital clinical staff, Sarah Deckert experienced an unpreventable complication following the angiogram," concluded the hospital's report to the state last fall after Cheryl Deckert requested an investigation.

Deckert remains skeptical of the hospital's findings about her daughter's care. For instance, Deckert, a scientist with a doctorate in chemistry, found that more time elapsed between each X-ray image taken during the angiogram on the night of Sarah's stroke compared with subsequent angiograms. She speculates that the slower pace increased the risk of a blood clot forming.

But Simon, the lawyer, said, ''I don't think anyone can say whether what was done was proper or improper."

Deckert asked Children's Hospital to help pay Sarah's expenses. But Eileen Sporing, senior vice president for patient care operations, rejected the request after consulting with the hospital's insurer, concluding in a Dec. 1, 2004, letter, ''I wish the best for Sarah's continued recovery."

Ultimately, what kind of settlement the Deckerts could get under another liability system would depend on the specifics -- and how much society is prepared to pay.

Brennan, of Brigham and Women's, said cases like Deckert's would generate a great deal of sympathy if state or federal governments write new malpractice rules.

''Maybe this person who's left with a disabled child gets compensation and maybe someone who's hurt less severely but there's negligence does not," he said.

Scott Allen can be reached at allen@globe.com.