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Read Making a Killing

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MEDICAL MALPRACTICE STORY

Woman, Denied Representation, Lives Life of Constant Pain

Cynthia Smith - Concord, California

Cynthia Smith always had been active, despite having multiple sclerosis most of her life. She grew up in Vermont, where she ice skated and joined in all the other outdoor activities that people do in cold climes. As an adult, she remained vigorous, training horses among other things. Now, at 58, Cynthia sits in a wheelchair in northern California, in constant pain from steel rods in her leg. One leg is shorter than the other. She is angry and depressed.

Cynthia is in this fix for two reasons: medical incompetence; and California's Medical Insurance Compensation Reform Act (MICRA), which scared attorneys away from taking her case.

The multiple sclerosis that Cynthia developed as a young woman never slowed her down. She went into remission 25 years ago and gardened, walked, drove, and engaged in other normal physical activity.

In 1998 she and her husband, William, moved to Walnut Creek, signed on with Blue Cross and found a family doctor. That year, Cynthia's older sister, who lives in Florida, mentioned that she had been diagnosed with osteoporosis. Cynthia knew that the affliction tends to run in the family, so she immediately asked her family practitioner for a bone density scan.

He refused to recommend the scan, telling her that she was too young - 53. Without the doctor's recommendation, her insurance would not cover the scan.

A year and a half after that, Cynthia went in for arthroscopic surgery on her knee. While in physical therapy to recover, she learned that she had a hip fracture. In September, 2000, she went back to the doctor who had worked on her knee, this time for hip replacement surgery.

He shattered her femur.

The doctor told her that her bones had been weakened because of osteoporosis. She also discovered that the medication she had been taking for multiple sclerosis thins the bones.

The nightmare put Cynthia, her leg immobilized, in a trauma care center from September 2000 to the following February, as she struggled to come back from this atrocious treatment at the hands of doctors she had trusted.

Her ordeal begs questions about both doctors. If the family practitioner knew that osteoporosis ran in the family and Cynthia was taking a medication that aggravated "bone thinning," why did he refuse a bone density scan?

And if the second doctor knew the same things, why did he operate? And since he decided to operate, why wasn't he more cautious in operating?

Cynthia is not about to get answers from either doctor. She can't sue the family practitioner because MICRA has a statute of limitations - one year after the 'event', which in this case was the refusal to order the scan.

She tried to sue the second doctor, but she and William could not find an attorney who would take the case. They think it is because of the cap on recovery of damages imposed by California's MICRA.

"The scent of big money is not there," says William, and so the Smiths are stuck. One attorney did file a letter of intent to sue the orthopedic surgeon, but that's all the legal help the Smiths are going to get with the MICRA limitations in place.

"It's collusion among medical groups to CYA (cover your rear end)," says William. "They've left my wife without any recourse. There's constant anger, a desire for retribution. A degree of depression sets in."

The worst part, as with many cases in California's brave new medical world, is that it could have been prevented. All it would have taken was the bone density scan. But the insurers, William says, have "put a short leash on doctors for the sake of increased profits."

"It's not run according to patients' needs, or doctors needs," says Cynthia. "It's run according to the insurers' needs. CEOs get big bonuses for keeping patients costs down."

Where do the Smiths go from here?

"It's a good question," says Cynthia ruefully. "We're looking into rehab and ways to ease the pain," adds William.

Cynthia has a caveat for those who deal with medical care in California, which includes just about everyone who lives here: Be pro-active, aggressive in protecting your own interests, because nobody else is going to do it.

"It shouldn't have to be that way," Cynthia Smith says.



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