Lawyers Avoid Medical Malpractice Cases when Patient is Poor

"After that WinRho was administered, that's when my mom went down the drain," Tish says.

Last year, the U.S. Food & Drug Administration urged doctors to use caution when administering WinRho because the drug had resulted in "severe and sometimes fatal" side effects.

"It was wrong for her to get the WinRho. I personally would have not given it, but that's why medicine is called a practice. There are no definite answers," says the doctor who wished to remain anonymous. "If her mother did not get the care she needed, then (Tish) should find out who should be held ­responsible."

Problem is, Tish can't find anyone to help.
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Once Tish realized she might have a case, she took the documents and began looking for a lawyer to represent her in a medical malpractice case.

Tish had her mother's body disinterred for an autopsy. The pathologist who performed the autopsy, Dr. Paul Radelat, determined that the cause of death was a brain hemorrhage, not liver failure. This finding furthered Tish's belief that a mistake had been made.

Soon, she met with several lawyers in Houston. She was turned down each time. Tish discovered that Texas is a hard place to sue a doctor. Especially if you're poor.

"If you don't have money," Tish says, "then I guess you can't go forward."

Because Tish's mother had never worked and would not have made any money in the future, Park Plaza Hospital and the doctors that treated her were not liable for much, even if they had killed ­Ortegon.

None of the lawyers that Tish contacted could be reached for comment about the Ortegon case. However, Randy Sorrels, a Houston attorney who has worked malpractice cases for nearly 20 years, says it is rarely financially beneficial for an attorney to sue a doctor or hospital. For every 100 malpractice cases presented to his firm, Sorrels says only two are accepted.

"Tort reform has really curtailed that," Sorrels says.

In 2003, the Texas Legislature passed a series of bills that established a $250,000 cap on the amount of "noneconomic" damages a patient can recover in a malpractice case.

"Let's say my 20-year-old daughter who goes to college dies. She doesn't make any money, she doesn't have anyone to support. There's no case," Sorrels says. "But if I die, I'm 45 years old with a family and maybe 20 years left of wage earning. That's what we'd look for."

On average, Sorrels says, a malpractice case costs about $100,000 to develop for trial. That expense, along with the typical 40 percent lawyer contingency fee, eats up about $200,000 of the capped settlement.

"Then you have some very unhappy clients with $50,000," Sorrels says. "We don't need that kind of win."

The wage-earning factor is not absolute, and a seemingly easy-to-prove case might also be lucrative to a malpractice attorney.

Sorrels is currently working on a case involving a patient who went to the doctor and was given an injection that mistakenly had a small amount of air in the syringe. An air bubble went to the patient's brain and killed her.

The patient was of similar age to Ortegon and was also a nonwage earner. But since it is a straightforward case, the cost will be low.

"That's a case I can take," Sorrels says. "We can actually get something out of it."

In the case of Aurora Ortegon, there wasn't much to get out of it. The case was complex, and would have required plenty of expert testimony to back up Tish's claims.

"It was never about the money," Tish says. "It was about taking accountability about what took place."

Ortegon's death at Park Plaza occurred in summer 2006, and Tish says she's been able to find little closure since. She has been in counseling, she says, and has been able to return to her job.

"It took me a little harder to put more faith in (the counselor)," Tish says. "I was very skeptical. I couldn't understand because I thought (doctors) are there to help us, not to create this."

Tish has few options left concerning her mother's malpractice case. Five months remain before the statute of limitations pertaining to the case expires. After numerous rejections, she is not optimistic an attorney will take the case.

Tish is now preparing information and documentation to send to the Texas Medical Board.

"I want justice," Tish says. "If this could happen under our noses while we're there taking care of my mom, I can just imagine what happens when people are not there to take care of their loved ones."

paul.knight@houstonpress.com