Why I will win my legal case and why it isn’t worth it – disabled lives are worth less

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I spoke to a paralegal yesterday, about my case against my surgeon and the hospital regarding the post-op care, or lack of it, after my total hysterectomy.

I have been responding to the hospital’s claim that they did everything correctly, that all my issues were escalated appropriately and that they were not at fault in any way.

Utter bull.  And really upsetting bull.  As a friend said, what did I expect?

Maybe some integrity, maybe an admission that my case was not handled correctly and an undertaking to review their systems, and the strict hierarchy which means the visiting surgeon is God, and her word is law, even when a patient is in obvious agony and their life is at risk.

That’s what I want.

To achieve that, I have had to go back to those five days and describe what happened from my point of view, and going through it all is awful.  It makes me angry and tearful and fills me with anxiety.  Last night I had horrific dreams, and I woke up in terror four times.  I don’t want to remember, I want to put it away and never think of it again.  But I have started this complaint now, and if I drop it now, I will be disappointed in myself.

The surgeon herself has yet to respond.  She is dragging her feet, and saying she doesn’t remember and she’ll need to review the medical records…delay, delay, delay.  Dragging it out, making it more painful for me.  Standard procedure.

And it’s working.  I’m suffering more than any of them are.  All the miserable nurses who told me to just pray and the pain will get better have forgotten I ever existed.  The appalling nurse who injected me with pethidine against my will is still treating patients as lumps of meat who know nothing.  And the poor young registrar, the only person who tried to help me,  is still fighting against a system that is not designed to help patients but exists purely for profit…and probably trying to keep her job AND her ethics intact.  Not an easy task for a young doctor with compassion in a wholly destructive, cold and profit driven private hospital system.  I wonder how long she’ll remain compassionate?  How long before she stops fighting for patients?

This morning a lawyer reviewed my case and called me to discuss how to take it forward.  Cutting our conversation down to the bare essentials, this is the situation.  I have to prove two things.

 

  1. That the doctors and/or hospital was negligent.

 

  1. That I suffered harm.

 

The doctors and hospital clearly were negligent on the basis of my story, and my medical records.  It’s clear that my life was at risk and they did nothing to treat my pain, or the massive internal bleeding post-op that almost took my life.  The records from the second hospital show that I did have a major bleed, and I needed a transfusion to save my life.  It is clear that the first hospital should have investigated and provided the necessary medical care.  They failed in their post-op care, and had I stayed in that hospital I would have died.  Medically proven and on the record.  Slam dunk.

That I “suffered harm” is more grey, but that’s still not the main reason my case will be difficult.  I have psychological problems.  PTSD, nightmares, anxiety, bouts of depression and a complete inability to trust or rely on anyone, especially doctors.  I will never allow myself to be anaesthetised again, I will never have surgery again.  Therefore, my gammy rheumatoid joints won’t get fixed, and I’ll suffer more pain.  The PTSD part is fairly simple, the fact that I need more surgeries and “can’t” have them surgically fixed is harder. With treatment and time they figure I’ll be OK.

Yeah, no.  I will never be OK.  I will never risk waking up to that kind of pain and being mistreated like that again.

I have an endoscopy scheduled in December and I’ve already asked if I can be awake for it, despite the fact that being awake would be painful at worst and very uncomfortable at best.  My gastroenterologist says no, I need to be sedated.  I’m not sure I can have the procedure.  Being sedated is not the same as being anesthetised, but I’ll still be unconscious and at their mercy.  I don’t trust anyone.  The impact of that lack of trust is far reaching and it’s a direct result of the way I was treated by the medical staff after my hysterectomy.

Then there’s the week in the second hospital and the two weeks recovering in a recliner at home, unable to do anything for myself, with no one but my kids to take care of me.  The promised home help never eventuated.  And the hard four weeks following that, using crutches and my wheelchair, and gradually getting feeling and function back in my left side.

And most importantly, the ongoing neurological deficits.  While my MRI was clear, only a brain injury could cause the cluster of symptoms that I am left with. Another point that I found difficult and refused to agree to, was the suggestion that I need to remain impaired.  She implied strongly to win this case I don’t want to get ‘too well’.

Bugger that. I’m not stopping my physio and exercises to win a law suit.  I want to get better and be better.  The deficits I have may be comparatively mild:  weakness, numbness and pins and needles down my left side, nerve pain in my hand and foot, central hearing loss on the left side, paralysed vocal chords on the left side, memory problems, severe fatigue, and confusion, but they still have a significant impact on my daily life.  I am not the same person I was before that surgery, and I never will be again.

Given that there’s no lesion to point to on the scan, it will be harder to prove.  But the lawyer wasn’t concerned about that, the symptoms are enough, and the blood loss alone could have caused a lack of oxygen to my brain, which could account for the deficits.  She said a clean MRI wasn’t the real problem.

The problem is this.

I was already disabled before the surgery. 

While she is sure we will win the case, the settlement will be reduced, because I was already disabled before the surgery.  I am more disabled now, but it’s hard to quantify the value of that disability, given my pre-existing severe Rheumatoid Arthritis.

Because I led a very physically impaired life before the surgery, and now my life is “only” a little more impaired, the damages payment will be reduced, because I didn’t suffer as much as someone who was able bodied would have suffered.

Because I was already disabled, my suffering doesn’t count for as much.

So the very reason that the surgeon nearly killed me, being my complicated medical history and her negligence in failing to do her due diligence and treat me appropriately given that history, the exact reason that she almost killed me, is ALSO the reason that I won’t win this case.  Or rather, I will win, but the settlement will be reduced because I was already disabled so it isn’t worth pursuing.  She will get away with her negligent medical treatment, as will the hospital, because I’m not a full value person.  I was disabled to begin with…what harm did they really do?  Only a little, right???  It’s not like I had much of a life to begin with, right?  It’s not like I mattered as much as an able-bodied person, right???

I didn’t lose as much as an able-bodied person would have lost.  The logic goes like this:  say a normal person might have had a ’10’ in function.  After the surgery they might be a ‘3’ in function. That’s a substantial loss, or amount of harm, that would be compensated with a large settlement.   But I was only a ‘4’ in function before the surgery. So I didn’t lose as much, so I wouldn’t be compensated by as much.

I am not worth as much as an able-bodied person.  My suffering is not worth as much as an able-bodied person’s suffering.

My life, as a disabled person, is not worth as much as an able-bodied person’s life. 

That, in essence, is the problem.

Despite the fact that I have a solid case and I will win, because the settlement amount will be reduced for reason of my pre-existing disability prior to the surgery, it will likely not be a large enough settlement to cover the significant cost that the legal firm would incur in fighting the case…flying in medical experts, ordering more scans and medical reports, and the cost of their time.  Medical negligence cases are expensive, because no medical expert practicing in the same town as the defendant will testify against one of their own. Doctors protect other doctors, and this is a small town.  The lawyers need to bring in experts from far away to testify.  Medical experts cost thousands a day, not to mention their accommodation, flights, meals.

So she’s very sorry, but it’s not worth their while to represent a disabled person who was abused and almost killed by the medical system.  My life just isn’t worth it – their cost structure doesn’t allow it.  She suggested I seek a second opinion, find a cheaper law firm, or maybe pursue legal aid.  As a disabled person, I can’t have a top tier law firm fight my case, because I am not worth as much.

It’s all about the money.  It’s always about the money.

The great irony is, had I been healthy, able-bodied, none of it ever would have happened.  I wouldn’t have needed the post-op steroids that were denied.  Even if I’d had the massive post-op hemorrhage, they would have investigated the bruising and the pain, they would have treated me.  They wouldn’t have made the assumption that I was a drug seeker.  Or that I needed detoxing off my pain meds, for my own good.  Or that I was a hysterical “chronic painer” with a low pain tolerance and just that type of person who feels sorry for themselves and won’t do the work, the physio, the recovery.  That I was malingering.  That there was nothing really wrong with me.

Had I been healthy, I would have been an uncomplicated case.  It is exactly because of my medical conditions and complicated history, and my surgeon’s lack of consideration of those pre-existing conditions, that I suffered so severely.  That I almost died.  That I was ignored.  That they made assumptions about my pain not being real.  Because my suffering is worth less, because I am used to suffering.

Had I been healthy, I would have been worth more.  My life would have been worth more, to the surgeon, to the hospital and to the lawyers.   My PTSD and neurological deficits would have a large dollar value attached, and the lawyers would fight for it, so that they could take their chunk.

But I’m disabled, so they won’t take my case, because while they are sure I will win, the settlement might be reduced so much that the risk that they’ll be out of pocket is too high.

Because disabled lives are worth less.

1 COMMENT

  1. I am sure there’s an Anti-Discrimination case in this also 🙁 How flipping horrible for you to hear this. This surgery HAS changed your life significantly. Your confidence and mental health as suffered significantly. I’m just going by your blog but you are very open in what you write. Is there a possibility that the hospital can do some kind of internal investigation on your case? I just want you to know that I read all your posts and I am here rooting for you to get some bloody good news one of these days. Surely it’s your turn for a break?
    Best wishes
    Tina

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