From The Law and Politics Book Review

Vol. 9 No. 2 (February 1999) pp. 99-101.

DAMAGES: ONE FAMILY'S LEGAL STRUGGLES IN THE WORLD OF MEDICINE by Barry Werth. New York: Simon & Schuster, 1998. 400 pages. Cloth $25.00. ISBN 0-684-80769-6.

Reviewed by James Cauthen, Department of Government, John Jay College, City University of New York. Email: jcauthen@faculty.jjay.cuny.edu.

 

On March 30, 1983, Donna Sabia, pregnant and expecting twins, was examined during a regular clinic visit to Norwalk (Connecticut) Hospital and told that by every indication her babies were doing well. Donna felt comforted that the she had carried the twins close to term. Two days later in the hospital, Donna gave birth under the care of the obstetrician on call, Dr. Maryellen Humes, who had never seen or treated her before the delivery. However, one child was stillborn and the other severely compromised and clinging to life. This child (called "Little Tony" after his father) ultimately survived but was left severely disabled as the result of oxygen deprivation before or during birth.

So begins Damages: One Family's Struggles in the World of Medicine, a true story of the Sabias' attempt to seek accountability for this tragedy through the legal system. The author, Barry Werth, is a free-lance writer. Using an approach similar to Jonathan Harr in A Civil Action (1995), Werth provides in Damages a comprehensive account of the medical malpractice lawsuit the Sabias filed against the hospital and Dr. Humes.

As set out in the book notes, Werth came across this piece of litigation when searching for a malpractice case through which to investigate conflicts between doctors and lawyers. He relates the story based on interviews with the family, lawyers, the obstetrician, hospital employees, expert witnesses, and others connected to the case as well as a review of the deposition transcripts and medical records. Werth ably succeeds in conveying to the reader the steps, strategies and difficulties addressed by the participants in the case and the frustrations of the family with the inability of the legal system to compensate them for their actual losses. Initially, one has to be impressed with Werth's ability to obtain cooperation for the book from all these players, especially the defendant doctor and hospital, who often want to insure that the claims as well as the resolution remain out of the public's eye. Without that cooperation, this would be a much different, and significantly more limited, book.

After spending a month in the hospital after birth, Little Tony is discharged and the Sabias bring him home, still unsure of extent of his permanent injuries. They ultimately learn that he suffers from severe cerebral palsy, chronic seizure disorder and near total blindness and will require around the clock care for the rest of his life. With no thought of seeking legal redress for Little Tony's injuries, Donna Sabia meets a woman with a disabled child who is in the midst of a malpractice suit against Dr. Humes. After learning of the circumstances surrounding Little Tony's birth, the new acquaintance convinces the Sabias to meet with her lawyer, Michael Koskoff, a prominent plaintiff's practitioner in Bridgeport with significant medical malpractice experience. The Sabias do not meet Koskoff during the initial visit but instead a lawyer with the responsibility to screen potential cases brought to the firm. Donna assumes in visiting the lawyer's offices that "she was the one who was shopping, but in truth it was the other way around" (45).

The firm agrees to take the case and brings suit against both Dr. Humes and the hospital alleging negligence during both the delivery and the prenatal care. From this point, the book follows the lawsuit to its settlement before trial. Thus, there is no dramatic courtroom ending. However, as Werth notes, most malpractice cases are settled before trial, so discovery and trial preparation, and particularly the ability to secure favorable opinions from medical experts, is where the case can be won or lost. The real value of Damages, and one thing that sets it apart from A Civil Action (1995), comes from Werth's description of the lawsuit from the perspectives of all involved. It is not the story of one side's case, but the story of the whole case.

For example, Werth recounts Koskoff's steps and strategies in the case to prove that Dr. Humes as well as hospital employees deviated from the standard of care and the deviation caused Little Tony's injuries. To Koskoff, this is less a search for the truth than a search for testimony from the experts to fit his theories. Werth also relays the defensive steps taken by the lawyers for Dr. Humes and the hospital, also mostly involving searches for favorable expert testimony. However, unlike Koskoff, the defendants' lawyers have pressures beyond representing their clients, as they also must deal with the interests of the defendants' insurance companies that will cover their clients' losses, pay their fees, and consider them for future business. Like many malpractice cases, this one evolves into a battle of the experts, many of whom differ on the two basic questions Koskoff must prove to prevail.

Some of the more interesting parts of the book involve the lawsuit's impact on actors beyond the lawyers, particularly the parties and these experts. For the Sabias, the focus of their lives is not the case that drags on for over six years but on the financial and emotional efforts expended to deal with Little Tony's disabilities. Until the furious final settlement negotiations, they are largely detached from the case, leaving decision making to Koskoff. For Dr. Humes, while she believes she behaved properly, the claim has some serious effects on her practice. Through her experiences, Werth conveys the tensions between the physician and the liability insurance carrier that often appear in a malpractice suit over such questions as assignment of counsel and settlement authority. For example, Dr. Humes faces potential damages in the Sabia case well in excess of her liability insurance limits. While the insurance company has an incentive to minimize its exposure, Humes has an incentive to avoid personal liability by making certain any award or settlement is within her insurance limits, regardless of its effect on the carrier. Dr. Humes and her carrier are in conflict over the case, but they reach an early settlement with the Sabias for over $1 million (within her policy limits). While Dr. Humes succeeds in protecting her personal assets and removing herself from the case, she reaches the settlement before the case is fully developed. Experts from both sides later conclude she was not at fault.

Finally, Werth effectively describes the importance of medical experts in these cases. There are the anticipated references to the exorbitant fees charged by many of the expert witnesses, but also revealing is the discussion of the difficulty faced by many of the experts in answering questions about the treatment and cause of injuries within the framework the legal system requires. For example, the experts are asked whether it was the standard of care for physicians to use serial ultrasounds during the period of Donna's prenatal care, which, if used, may have led to an emergency cesarean section and a different outcome. The experts disagree over whether this was the standard at that time, although it was only a few years later. In essence, they are asked to identify specific period when the standard of care changed in their profession. Further, one expert expresses frustrations with the questions being asked in his deposition that, in his mind, do not reach the ultimate medical issues in the case but only serve the lawyers' legal strategies.

While Dr. Humes settles early, the case against the hospital eventually is settled after the lawyers and parties proceed through two mediations (again, Werth's access to the mediators adds significantly to the description of the mediation process). Settlement does not occur during the mediations but after they conclude. To the lawyers, the real benefit of the mediation process is adding a settlement dynamic to the case where before none existed. In the end, as the legal system requires, the Sabias are asked to place a value on the effect of the tragedy on their lives and Little Tony's life. The millions they receive make their lives more comfortable, but it can never compensate them for their true losses.

Overall, for those interested in the legal system's treatment of medical negligence claims, I highly recommend Damages. Also, for or those interested in using a non-fiction account of a legal proceeding in their classes, as many now use works like A Civil Action (1995), this book merits consideration. Still, the book is not without some problems. Werth often times becomes bogged down in medical details, sometimes to the exclusion of the legal details. Some of these legal details are minor, but they may become more meaningful if the book is used in a classroom setting. In addition, Werth could have made the book an easier read by limiting the discussion of the medical experts to only the most important two or three. He discusses so many that their opinions and loyalties are often difficult to distinguish. However, in the end, these problems do not significantly diminish the value of this book.

REFERENCES

Harr, Jonathan. 1995. A CIVIL ACTION. New York: Random House.


Copyright 1995