AWARDS: SOMETIMES, MALPRACTICE DOES HAPPEN

WINSTON-SALEM JOURNAL

Tuesday, July 30, 2002

NORTH WILKESBORO – President Bush told some persuasive anecdotes about greedy trial lawyers and hapless patients when he stopped in High Point Thursday to push for malpractice reform.

Jill Barnes was there, in from Las Vegas, a perfect audience prop. She is pregnant and has to drive all the way to Arizona to see a doctor because Nevada’s high insurance rates have driven doctors from town.
“That’s got to be really frightening for a young mom not to be able to find a doctor with whom she can consult,” Bush said. “The medical system is hurting because of a lot of lawsuits driving up the cost of business.”

After that tale of woe, who wouldn’t want to clamp down on malpractice claims?

Another story, another view

Well, here’s an anecdote Bush didn’t tell.

In February 1998, Ina Livingston had what was supposed to be a routine hysterectomy at Wilkes Regional Medical Center. Her doctor, Michael Blackwell, sent her home with a painkiller and instructions to call the office for a four-week checkup.

Livingston didn’t know then that Blackwell had accidentally nicked her bowel during surgery. She didn’t know that the excruciating pain she was suffering wasn’t normal. The nurse in Blackwell’s office who took her calls told her to expect pain after surgery. Take some aspirin, the nurse said when the painkillers ran out.

After three weeks, Livingston went back to the hospital. According to her lawsuit, Blackwell saw her in the emergency room and diagnosed peritonitis and massive infection, but waited two days to call a surgeon. Much of her colon was beyond repair. A surgeon fixed some of the damage.

Livingston sued Blackwell for malpractice. Last April, a Wilkes jury ruled that Blackwell had been negligent in his care and awarded Livingston $841,500. Most of that was for pain and suffering – the “non-economic” compensation that Bush wants to cap. Local court observers said at the time that they couldn’t remember a Wilkes jury ever ruling against a doctor.

Until the surgery in 1998, things were finally looking up for Livingston. She was 49, and ever since her husband died in 1989, it had been up to her to raise their three children. She worked at the Tyson Foods chicken plant, and she had recently moved off the production line into a clerical job. Her children were old enough that she could take a second part-time job at Wal-Mart.

Livingston will always have chronic bowel problems. She can work, but only if there’s a restroom near her desk. She had to quit the Wal-Mart job. And even a trip to the grocery store risks a humiliating accident.

Not easy to file a lawsuit

There may be a lot of frivolous lawsuits filed. But North Carolina reformed its malpractice laws in the mid-1990s, with a cap on punitive damages of $250,000, or three times the compensatory damages, and strict rules on the use of expert witnesses.

If it’s easy to file a lawsuit in Nevada, it isn’t in Wilkes County. The first lawyer Livingston went to said she didn’t stand a chance with a small-town jury.

Livingston’s attorneys will get 40 percent of the award. She says that’s fair; without them she’d have nothing. So far no one’s been paid, because the case has been appealed.

It’s hard to put a price on pain and suffering, or measure the cost of humiliation. “I didn’t know anyone could suffer that way and live,” Livingston said. “There was a time at the hospital where I didn’t want to live.”

The president wants to limit awards for pain and suffering to $250,000. Twelve Wilkes County jurors didn’t think that would be enough for Ina Livingston.