A quadriplegic and a victim of a botched surgical procedure file separate lawsuits and consider challenges to the Texas malpractice cap.
As Tom Steele sits in a wheelchair at his home in Spring he realizes that his name might someday be mentioned in front of the Texas Supreme Court in a fight over malpractice reform. But what he'd like most is to just be able to walk again.
"It's just changed everything," he said.
The 65-year-old grandfather went to Houston Northwest Medical Center in August 2009 to undergo a prostate biopsy to determine if he had cancer. It was an outpatient procedure and he was placed under general anesthesia. After the surgery, according to a lawsuit filed in February of this year, nurses accompanied Steele to a restroom and allowed him to "stand in the restroom unattended."
His attorney alleges that Steele was still groggy, recovering from the anesthesia, when he collapsed alone in that bathroom. He was found "slumped on the floor unconscious and not breathing." He also couldn't move. He broke his neck in the fall, damaged his spinal cord between the fourth and fifth vertebrae and is now paralyzed from the shoulders down.
"And she goes, well there's been a little mishap," Steele's wife, Jeanne, says she was told by a hospital nurse. "And those were the words: A little mishap. He fell and bumped his head."
Steele, an avid motorcyclist and private pilot nearing retirement, is now confined to a wheelchair and dependent on his wife, his daughter, and a home health care nurse to take care of his every need.
"I can't express how bad it is not being able to do anything," he said. "Everybody has to do everything for me. I can't even scratch my nose."
"That $250,000 wouldn't pay for my medication for the rest of my life,” he said.
Malpractice reform became a part of the Texas Constitution in 2003. Proposition 12 was praised by physicians and medical associations as much-needed reform and defense against frivolous lawsuits. According to the Harris County Medical Society, the reform reduced malpractice insurance rates by as much as 50 percent and reduced the number of malpractice lawsuits by upwards of 80 percent.
"It was a good thing for me. And it was a good thing for my practice," said Dr. Andrew Kant, an orthopedic surgeon and board member of HCMS. "We have become a state where well-qualified physicians want to come and practice and that's good for the state. That's good for business."
Kant is not familiar with the Steele case and could not comment on the lawsuit. But he cited the upward limits of the malpractice guidelines. Texas law limits non-economic damages for all doctors and health care practitioners to $250,000 each. Total liability for any one health care facility is also $250,000. Total liability for all defendant health care facilities may not exceed $500,000. The combination, if multiple parties are sued and found liable, creates an effective total damages cap of $750,000.
"That pushed the legislature to strengthen the Texas Medical Board to go after those physicians who weren't practicing good medicine," said Kant. "If this is an egregious case where a physician or a facility really did something wrong, that's why we have licensing boards."
Allyne Ratliff is testing the malpractice cap as well. She filed suit against Memorial Hermann and the University of Texas Health Science Center in February for negligence over a misplaced surgical towel.
"It was supposed to be a very routine procedure as far as I understood," she said.
In February 2008 surgeons repaired a hernia; surgery that required a large incision in her abdomen.
She stayed in the hospital for approximately four days in recovery.
But in the weeks that followed, she complained repeatedly about continued abdominal pain, severe nausea and fever. According to her lawsuit, nearly three months later, she sought help from her family physician at a different hospital who performed a CT scan and found a mass in her abdomen. She returned to Memorial Hermann where her original surgeon opened her abdomen again and found that a surgical towel from the first surgery had been left inside. According to her lawsuit, Ratliff had five additional surgeries "related to complications" from the initial surgery and subsequent infections.
"I felt like I was not listened to," Ratliff said. But I didn't know what else to do, but believe my doctor."
A spokesperson for Memorial Hermann also tells 11 News they cannot comment on the current lawsuit.
"While caps may be effective in one or two frivolous cases, they are completely unjust to so many cases like this one," said Randall Sorrels, the attorney for both Ratliff and Steele.
Sorrels says he also believes one, or both of the cases, might be enough to become the very first challenge of the malpractice cap all the way to the Texas Supreme Court. He feels they are evidence of pain and suffering worth much more than the current law allows.
"The caps, so far, have not been constitutionally challenged to the Texas Supreme Court. And this certainly may be a case where the facts are so grievous, this may be one to challenge," Sorrels said.
Steele, meanwhile, received additional bad news. That initial visit to Houston Northwest Medical Center was for a prostate biopsy. He found out that he is in the early stages of prostate cancer. But cancer treatments are on hold until complications from his paralysis can be dealt with first.
"I hope there's something other than this that's left for me," he said. "Because this is not really living that much. All it is is just existing from one day to another."
"Until you live it you have no clue what it's like for him to get through one day," his wife said.
The Steele's attorney Randall Sorrels says hospital administrators initially promised that any and all medical bills associated to Steele's injury would be forgiven. But the Steels say that, to date, several hundred thousand dollars have instead been charged to the Steele's insurance.
The husband and wife filed a malpractice lawsuit against the hospital and its parent company Houston Northwest Operating Company LLC claiming negligence and breach of contract and are seeking compensation for his present and future medical expenses.
A hospital representative contacted by 11 News said they could not offer a public response or comment on the lawsuit. But in court papers they have denied fault for Steele's injury and have asked the courts for the "rights, remedies, and limitations" under the Texas Medical Liability Act of 2003.
Under Texas law, if the hospital were to be found liable, the Steeles could receive compensation for their past, present, and future medical bills associated with the injury suffered while in the hospital. But for non-economic damages, compensation for pain, suffering, inconvenience, and emotional distress, any monetary award is limited by the Texas Medical Liability cap. As a single entity, the hospital can only be found liable in a non-economic judgment for a total of $250,000.
