My Coat and Other Losses

Recently, I discovered I had lost a sport coat. It was a greenish-brown corduroy jacket that was warm and went well with jeans. Apparently, I left this jacket on the back of a restaurant chair, or at a party. I looked everywhere, called the cleaners, contacted the store (to see if I had forgotten that I had taken it in for alterations) and even dropped a few hints to friends and family. Nothing. I hated losing that coat. In part, I regretted the loss of the garment; we are still going through the “cool snap” others in points north refer to as “winter.” More significantly, I hate losing anything – a silver pen my wife gave me for our anniversary; my glasses; even a piece of paper. One of the reasons I am so obsessive-compulsive (it’s just a character trait, not a disorder, or so I am told) is because losing anything just aggravates me to no end.

Perhaps it is appropriate that I am a trial lawyer representing people in personal injury and wrongful death cases. You could say I am in the loss business. Every day, I pick up files and deal with other people’s losses. My clients have lost the ability to work, or the use of an arm or leg, or in the worst cases, the ability to kiss their child good-night. When I stop to think of the sadness my clients experience on a daily basis, the constant reminders they have of what they once had and will never have again, it is breathtaking. The responsibility I feel is so palpable, it is difficult to explain. I am frequently reminded that the bumps in the road of my daily life, like losing a sport coat, are tiny and insignificant.

Part of my job is helping people cope with their loss. I am not a therapist, but the degree says “Doctor of Jurisprudence,” and the license calls me and “Attorney and Counselor at Law.” My clients call me to ask where they should go for medical care and what treatments they should have. They talk to me of the troubles they are having with their finances, their families and their self-image. They vent. They emote. They let me know how much they are counting on me to do something to make things better.

My clients are smart people. They know I cannot fix their real problem. I seek an economic recovery for them which, in our socio-legal system, is all that can be done. If I could undo the harm, go back in time and make the accident never happen, or even guarantee the defendant would never hurt anyone again, I would. Those options are not available. All we can do in the tort law is to compensate people for their loss. People in politics like to say you cannot cure a problem by “throwing money at it.” The truth is that, for most people who have been wronged, there is nothing else we can throw at them. Every single one of my clients – over 28 years – would trade every penny of their settlement for the ability to undo the harm they have suffered.

So, why does my work day involve more than just preparing the cases for trial, negotiating settlements and the other tasks of prosecuting a claim? Why do I take these calls, and more importantly, why do these people call me for advice, or as a sounding-board?

My clients call me to share their suffering because I have agreed to take on their cause. I am in it with them, fighting for the justice that is available under the law. I try to convey to them how much I care, and apparently that message is getting through, because they keep calling. As little as my legal education prepared me to be a doctor or a counselor, I do the best I can to share the limited knowledge and insight I have gained from my personal and professional experience. It is often not enough, and I am constantly reminding my clients of what I am not (a doctor or a psychologist). I am regularly made aware of my shortcomings, and the cracks in our medical treatment system through which people’s emotional needs and mental health issues fall almost without notice.

So, when I lose a coat, my work life suggests I rejoice in all of the truly important things I have not lost. Perspective is so valuable. All of us should be thankful of the blessings in our lives. If we are not dealing with an overwhelming loss, we should reach out to friends and family members who are. We should be there for each other. And we should realize that losing something as small and insignificant as a sport coat – even a really nice, comfortable sport coat that I really would like to find – is just not that big a deal.

Steve Waldman – swaldman@gwlawyers.com

And Now, A Word From the Children

My nephew, Marshall, participated in a program with the Tchefuncte Middle School called K.I.S.S. (Kids Interacting with Seniors Successfully).  Their group is now in the finals of the State Farm Service Learning Solutions Showcase.  These fifth grade children began regularly visiting the residents at the Heritage Manor Nursing Home in Mandeville, Louisiana.  Each child was assigned a “buddy,” and the positive impact upon the lives of the children and the seniors is so gratifying, I hope you will all take a moment and watch the video:

http://www.youtube.com/watch?v=2T8I4B-vPoM&feature=PlayList&p=76AFEACF064C53E1&index=4

Of course, we want you to vote for Marshall’s school too!

In the hustle and bustle of our lives, we often forget how important human contact, compassion and friendship are to those whose lives are not going so well. These kids learned that people with infirmities need love just as much as the rest of us, and they delivered.

As much as like to write long blogs, I think I will just let the kids speak for me.

Steve Waldman – swaldman@gwlawyers.com

When Is an Illness an Illness?

My newspaper often barks at me. Like my dog, only silently. Something I read will reach out and grab my attention, whether I want it to or not.

The latest cacophony concerned fibromyalgia. Apparently, this “murky disease” is getting a lot of run of late, primarily because it is generating a lot of profits for the drug industry. Here is a story from the AP:

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WASHINGTON (AP) — Two drugmakers spent hundreds of millions of dollars last year to raise awareness of a murky illness, helping boost sales of pills recently approved as treatments and drowning out unresolved questions — including whether it’s a real disease at all.

Key components of the industry-funded buzz over the pain-and-fatigue ailment fibromyalgia are grants — more than $6 million donated by drugmakers Eli Lilly and Pfizer in the first three quarters of 2008 — to nonprofit groups for medical conferences and educational campaigns, an Associated Press analysis found.

That’s more than they gave for more accepted ailments such as diabetes and Alzheimer’s. Among grants tied to specific diseases, fibromyalgia ranked third for each company, behind only cancer and AIDS for Pfizer and cancer and depression for Lilly.

Fibromyalgia draws skepticism for several reasons. The cause is unknown. There are no tests to confirm a diagnosis. Many patients also fit the criteria for chronic fatigue syndrome and other pain ailments.

Experts don’t doubt the patients are in pain. They differ on what to call it and how to treat it.

Many doctors and patients say the drugmakers are educating the medical establishment about a misunderstood illness, much as they did with depression in the 1980s. Those with fibromyalgia have often had to fight perceptions that they are hypochondriacs, or even faking their pain.

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The article features a photograph of Fredrick Wolfe, Director of the National Data Bank for Rheumatic Diseases (whatever that is) and “one of the nation’s most prominent critics of fibromyalgia.” The “rest of the story” is available at the following link:

http://www.chicagotribune.com/business/sns-ap-fibromyalgia-drug-companies,0,535128.story.

Take a look at the AP article, and you will find a wealth of information about how disease and treatment are marketed to the general public in a Fox-News “you decide” format. You can discern the following from this article:

Some people (critics of fibromyalgia) regard the condition as “murky,” meaning shrouded in mystery and therefore unproven. In other words, bogus.

Two drugmakers, Eli Lilly (the Cialis folks) and Pfizer (the Viagra folks) are making so much money selling drugs to people with fibromyalgia, they are “donating” over $6,000,000.00 to “nonprofit groups for medical conferences and educational campaigns.” That is in addition to their advertising budget. Big bucks are at stake, which in the world of Global Corporate Healthcare, is much more important than actually helping people.

Whenever you see a comment such as, “Experts don’t doubt the patients are in pain,” followed by “Those with fibromyalgia have often had to fight perceptions that they are hypochondriacs, or even faking their pain,” rest assured there are plenty of “experts” (i.e. hired medical guns) calling people who claim to have fibromyalgia a bunch of crazy fakers. I was unable to get to the bottom of where Dr. Fredrick Wolfe and his National Data Bank get their money, but I think the people who have a vested interest in opposing funding for fibromyalgia research or, more importantly, compensation or coverage for its victims, is the leader in the clubhouse.

All of this is complicated by these apparent facts: “The cause is unknown. There are no tests to confirm a diagnosis. Many patients also fit the criteria for chronic fatigue syndrome and other pain ailments.” This means the doctors do not know what they are doing with this condition. For all their research, big hospitals and Wednesday golf games, they might as well be bleeding these people.

Several years ago, I attended a conference on fibromyalgia. A doctor friend of mine, Dr. Richard Rubin, was speaking. The conference was attended by a hundred or so people, mostly women, all of whom were desperate. At that time, no drug company had figured out these people had money and were willing to pay for anything that might make them feel better. Without Cialis and Viagra money supporting their plight, these people were on their own, fighting against the insurance industry. My bet is that those “critics of fibromyalgia” were insurance company goons, hired to prove that fibromyalgia did not exist, was a figment of the imaginations of deranged and tortured souls who may be experiencing pain, but whose pain was due to being slighted by their mothers. Why else would anyone be a critic of a disease?

I have seen this in my practice. I have represented people with fibromyalgia and reflex sympathetic dystrophy (RSD). RSD got such a bad rap, it had to change its name to Complex Regional Pain Disorder. This is like an illness going into the Witness Protection Program. Why would anyone force an illness to go underground, change its name or fight for recognition?

The answer, as usual, is to follow the money.

People with illnesses often want some form of compensation. They may want to prove their condition was caused or aggravated by a physical trauma in a lawsuit. Others may seek disability payments from Social Security or an insurance policy. However, many people just want to feel better.

In one of my RSD cases, I had an “expert” designated against me, and his sole role in the case was to testify that RSD did not exist. It was not an “entity.” He had a plethora of other possible explanations for why people might think they have RSD; he could not be sure about an of those. What he was absolutely certain of, however, was that RSD was not real. This guy was making a pretty good living going around the country debunking RSD. He was being paid to do so by insurance companies defending lawsuits like mine, where people lost the use of one or more extremities (arms or legs) because of trauma that disrupted their sympathetic nervous system. My client’s arm was a swollen cold, lifeless lump of flesh that caused terrible pain, was hypersensitive to heat or cold and was generally useless for anything other than making her life miserable. She was not upset at her mother. She was injured. This “expert,” with all of his degrees, was selling his opinion that, whatever she had, it was not RSD. He knew she had the burden of proof in her case, and unless she could explain what she had, she could not win. Just by saying, “I don’t know,” he argued against her.

Fortunately for her, no one believed this “expert,” not even the defendants in the case, who paid a generous settlement rather than have to present this man’s opinions in court.

Our courts have been busy with fibromyalgia. The United States Court of Appeals for the Fifth Circuit (one step below the Supreme Court of the United States) ruled in Vargas v. Lee, 317 F3d 498 (2003) that fibromyalgia is not caused by trauma. That may seem odd that a court would pass judgment on a medical issue, but there it was, in black and white. Actually, what the court said was that medical proof was so absent on the causal relationship between trauma and fibromyalgia, there could be no proof of cause and effect as a matter of law. When a court shuts you down like that, it is time to pack up your briefcase and go home.

The real news behind today’s story on fibromyalgia is that two forces with huge resources are apparently taking each other on. This is like watching Darth Vader and his goons taking on the Klingon Empire in a WWF-style grudge match. It not for the victims caught in the middle of this fight, I might actually enjoy the show.

So, how does this concern you? What can a single citizen do about all this mess? Truthfully, not a whole lot.

However, there are three things you can do, and they may make a difference.

First, do not vote for candidates who oppose the rights of consumers and victims of corporate malfeasance. Tort reform is a myth brought to you by the same folks who want you to believe people with fibromyalgia are really just crazy. These candidates, by the way, pass the laws that make it impossible for victims to obtain justice, and they appoint judges who make decisions such as the one in Vargas v. Lee.

Second, let your representatives in the state legislature and Congress know you are sick and tired of them putting the interests of big companies ahead of what is right and fair for consumers, patients and victims of corporate malfeasance. Perhaps if we continue to send this message to our politicians, they will get the message.

Third, when you get that jury duty notice, go and stand up for the little guy. You, by the way, are a little guy, and if it is ever your turn to stand in a courtroom and ask a group of jurors to find in your favor in a case against the insurance or drug industry, you will realize just how little of a guy you are.

As for the doctors, the best they can do is try to find something that works for their patients. If that is a medication, wonderful. If it is acupuncture, massage or psychotherapy, they should tell their patients they do not know how to heal them, but here are some suggestions. Don’t tell your patient she or he is crazy, or does not have a real illness. Confess your ignorance, tell them the little you know and then wish them well.

Steve Waldman – swaldman@gwlawyers.com

How Malpractice “Tort Reform” Affected You

A recent Dallas Business Journal article (2/4) reports, “A house bill that passed the Texas Legislature in 2003 is now receiving credit for getting emergency physicians back into the ER” and “the Texas College of Emergency Physicians held a press conference in Austin on Tuesday, thanking lawmakers for the passage of House Bill 4 six years ago — a move they credit for establishing the tort reforms needed to revamp medical malpractice suits in a fashion that would encourage more physicians to practice emergency medicine in the state.”

Before you shout and holler praise for the good work of the legislature, understand what the new law means to you and your family members, if they are treated in an emergency room.

The 2003 changes to medical malpractice law severely restricted damages recoverable in medical malpractice cases. With the exception of lost wages and medical expenses, the recovery is capped at $250,000 in most cases. That may sound like a lot of meny, but that number was set low enough to discourage lawyers from taking these cases. Most seasoned lawyers will not even look at a medical malpractice case unless there is a death or permanent disability of a wage earner, or a catastrophic injury resulting in enormous future medical care costs. Most cases involving injuries to or deaths of the elderly, children, stay-at-home moms, or injuries that do not diminish the ability to work are falling by the wayside. When you spend up to $50,000 or more developing a case, and then charge a client a fee for your time and effort, even with a victory, no one is happy. Since the fee and expenses are contingent, if the case is lost, the lawyer eats the expenses and gets nothing for his time.

Medical malpractice cases have a high failure rate. The 2003 laws impose huge procedural hoops lawyers must jump through to get a case to a jury. Juries often exonerate malpractice defendants who are clearly at fault, often because they feel doctors should not be held civilly liable unless there was an evil intent. That is not the law, but juries have been known to take the law into their own hands. Numerous counties in Texas have never had a verdict in favor of a malpractice plaintiff. Ever. And the record of our Supreme Court of Texas is dismal in reversing jury verdicts for patients.

The ER provision of the 2003 laws gives doctors, nurses and others who provide emergency care in a hospital an immunity for their negligence. To win an ER case, you must prove the doctor, nurse or other provider is guilty of “willful and wonton negligence.” This is a “gross negligence” standard. Most lawyers who look at these cases have thrown up their hands and concluded that, absent the most egregious of circumstances, emergency care providers get a freebie. When you or a loved one goes into an ER, you are truly on your own.

That may sound great for hospitals trying to recruit ER doctors. However, this law does nothing to protect patients or foster higher standards in emergency care.

There were other solutions available to resolve the “malpractice crisis” the doctors, hospitals and insurance industry convinced many Texans existed. Among them would have been requiring greater quality control in hospitals; increasing enforcement of medical, nursing and hospital standards; and requiring every practitioner have adequate liability insurance coverage, offered at reasonable rates by companies that profit greatly from writing other forms of casualty insurance. Finally, if a cap on damages was deemed necessary, that cap should have been set high enough to allow victims to find lawyers to take their cases.

The 2003 changes to medical malpractice law may have enhanced the practice of medicine in Texas (although there are many disagreements on that point). Regardless of whether or not that is true, the price paid by Texans who are consumers of medical services was too extreme, as the bar for winning a lawsuit has been raised too high, and the damages that are recoverable have been set too low.

If you believe some sanity must be restored to medical and hospital negligence law in Texas, start by contacting your state senator and representative. Tell them you want changes made that will protect consumers. If they do not go to bat for those changes, vote for others who will.

Steve Waldman – swaldman@gwlawyers.com