Lawyers Avoid Medical Malpractice Cases when Patient is Poor
Aurora Ortegon calmly entered the emergency room at Park Plaza Hospital on a Wednesday morning suffering from nausea and dehydration. She hadn't been able to eat much the night before and had vomited several times.
Ortegon, 70, didn't think it was serious, but her family took few chances with her health. Years earlier, Ortegon had been diagnosed with heart disease and had a pacemaker installed.
"We had to treat my mom very delicate," says Tish Ortegon, Aurora's 40-year-old daughter. "We thought it was just a virus. We never thought it was life-threatening. I just wanted to take care of my mom; that's what I always do."
The original diagnosis in the emergency room was sepsis, a condition caused by severe infection in the body. Doctors admitted her into the intensive-care unit, and after several days of tests and treatment — antibiotics and steroids — Ortegon's condition improved.
A final procedure was performed in the ICU — inserting a tiny camera down Ortegon's throat to make sure everything was okay — before she was transferred to a recovery room. Doctors wanted her to stay in the hospital for a couple days of physical therapy.
"They were getting ready to discharge because she was ready to go out," Tish says. "But all the sudden...she didn't make it."
One day out of ICU, Ortegon's leg went cold and numb. It swelled like a balloon. Doctors discovered a blood clot in Ortegon's thigh and ordered an emergency procedure. The clot was removed, but after surgery, Ortegon seemed confused and aggressive. Medical records describe her as "combative."
"She was screaming, and she was very disoriented. She was already seeing dead people, dead relatives," Tish says. "She wanted the hell out of that hospital. She told me, 'Take me out of here, mija. I don't want to live like this.'"
Over the following week, an array of doctors at Park Plaza, located southwest of downtown, gave the family several different diagnoses. Doctors cited nephrotic syndrome, a condition that can cause kidney failure, and later, family members were told that their mother was suffering from liver failure, a condition far worse than the woman's original emergency-room diagnosis.
Dr. Gerardo Bueso, Ortegon's primary doctor, took the family into his office and explained that she had possibly slipped past the point of recovery.
"That was the first time that...she was not going to pull through," Tish says. "As hard as that is to accept, let's keep her comfortable."
Tish could not believe her mother's condition had deteriorated so fast. Worse, she says, each doctor offered a different explanation than the last.
"We didn't know what was going on, but what else are you going to do?" Tish says. "You have to have faith in the doctors, and we did."
Doctors began administering pain medicine to keep Ortegon comfortable and sleeping. The family kept Ortegon in her normal room, refusing to move their mother back to the ICU.
One evening as the family waited in Ortegon's hospital room, she woke from her morphine-induced sleep and spoke for a final time.
"The only thing she was able to say was 'I love you' to each and every one that was in her room that day," Tish says. "That was enough. That was taking so much of her."
Days later, Ortegon died. Dr. Bueso signed her death certificate and listed the cause of death as liver failure.
"I wish we never would have taken her to that hospital," Tish says.
Following her mother's death, Tish was a wreck. She couldn't eat, and she had to take a leave of absence from her job with ExxonMobil.
"She tried to get back, but she couldn't concentrate," says Amy DeVore, Tish's girlfriend. "She would call me because she couldn't send a simple e-mail."
Tish then remembered an encounter with a doctor who did not serve on her mother's medical team. According to Tish, the doctor took her from her mother's hospital room one morning at about 3 o'clock, telling her that he needed to talk.
"You know, I owe this to your mother," Tish says the doctor told her. "Your mother should not be in there. If your mother gets out of here, make sure her chart gets seen by an outside doctor."
The doctor talked to the Houston Press and asked that his name not be used, saying he feared retribution from other doctors. He said he did not remember what exactly was said during his conversation with Tish, but confirmed that it took place.
"I told the daughter I was unhappy with the care (Ortegon) was receiving," the doctor says. "Most doctors try to hide; I told them everything."
Tish says the conversation planted a seed. She soon went back to Park Plaza to get the examination files and doctors' charts from her mother's stay.
After obtaining the records, Tish rarely left her condo. For months, she combed through the stack of documents daily, searching for answers. Soon, she found one.
On June 13, about a week before her death, Tish's mother was given a large dose of WinRho, a drug that is supposed to help clot blood. Tish was unaware that the drug was given to her mother, and realized that it was days after this that Dr. Bueso met with the family to explain Ortegon's dire condition.
"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.
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."
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