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The Contingency of Malpractice

“This is our case—this is what we’re saying: She jabbed you—and then held the needle there. She didn’t remove the needle when you screamed.”

Nearly two years into litigation. I am speaking for the very first time with my attorney.

Thick folders of my medical records lie on the conference table. And right off the bat, he wants me to know that taking it upon myself to visit so many specialists might well give a jury the impression I’ve been assembling evidence for a lawsuit.

He cannot understand why I never took any of the anticonvulsants and antidepressants my doctors prescribed. Of all his clients, the worst are people like me; they study their own medical conditions and sound like college professors–and academics, in particular, tend to come off pretty badly. The jury only wants to know what it is I’ve actually felt and experienced.

I get the impression I’m supposed to remember the detail about the needle being held in place while I screamed—although I was in total shock and pain during that short interval. Moments later she started working on the tooth–which wasn’t numb. I screamed again. She reinjected me and said, “You should have been sedated,” and her assistant said, “Go to your own private place.”

The facial burning that has persisted will stop for a day or two and then return. It affects nearly my entire face. But the lawyer insists, “No it doesn’t—it only occurs on the side where you were jabbed.”

A local dentist said the pain could be the result of tissue irritation caused by endodontic paste she used to seal the canals.

Another local dentist showed me a bag of a dry powder called EZ-Fill, a sealant containing formaldehyde. Its antibacterial properties enable general dentists to do one-day root canal treatments. When I asked if he thought my endodontist might have used EZ-Fill on me, he said, “If she didn’t she definitely should have—it’s great stuff.”

My former Manhattan endodontist assures me such things occur only in Eastern Europe, and that her work looks “fine” on the X-ray. Although each canal is overfilled, the protrusion of dental material into the surrounding gum tissue is within acceptable bounds.

Three oral surgeons say I have an injury to the second division of the trigeminal nerve that is likely permanent. They’re reluctant to weigh in on exactly what might have caused it–perhaps the injection itself, or possibly the excessive anesthesia–and seem not to want to get involved in assigning blame.

A breakthrough comes when I visit a neurologist. He says a nerve was traumatized by the injection but will eventually repair, and then asks, “Do you need a lawyer?”

In Suffolk County, a malpractice lawsuit must be initiated within two and a half years of the injury. Previously, no lawyer I’d called would take my case on contingency. (It’s the usual arrangement–you pay nothing; if they win they take one third of the award plus expenses.)

Yet now, at the eleventh hour, this firm decides to take it.

A paralegal visits my home and interviews me; I give him such records (including X-rays) as I possess. We sign a contingency agreement.

A complaint is served to the defendant.

My husband hits the ceiling when he discovers our dentist (who’d referred me to the endodontist) is named as a codefendant. Though he’d failed to spot my abscess on an X-ray and later claimed my facial burning might be due to a spider’s bite, he didn’t directly cause my injury.

A paralegal explains over the phone that they plan to eventually drop him from the case. In the meantime, instead of supporting her, “the two of them will be pointing the finger at each other.”

I keep expecting my lawyer will soon want to speak to me, but as the months wear on, the only communication I receive is batch after batch of medical release forms to sign, many earmarked for the defendants’ law firm. Nonetheless, I don’t want to pester the paralegal. She’s advised me that litigation proceeds very slowly.

During this torturously slow pre-trial period (called “discovery”), a minor matter is resolved: To disallow as evidence a “mental health record” consisting of a single marriage counselling session occurring ten years ago, it is agreed my husband won’t sue for damages due to loss of companionship.

The defense files a motion to have the case dismissed. The motion is denied and then withdrawn.

Now, two years on, my lawsuit finally appears to be moving forward. Next month my husband and I are scheduled to be deposed. So at three o’clock on a Sunday afternoon we are meeting our lawyer for the first time in a low-rise office building near the Nassau Coliseum. Downstairs, Ruth’s Chris Steak House and JoS A. Banks are open with not a customer in sight, while upstairs in the firm’s nearly airless fourth-floor suite, young men hidden in a maze of cubicles labor on through the weekend.

My lawyer says: “We have a medical expert—who is a lawyer and a partner. He will be deposing the endodontist and is really good at this.”

Before they tear her to bits, I will have to be deposed by her lawyer—and clearly I’m unready.

But there is one thing my lawyer immediately needs to know: Back in 2011, I wrote an article about the excessive and inappropriate use of Neurontin as a painkiller. Using my own experience with nerve pain as a jumping-off point, I described the dental misadventure now under litigation, including a blow-by-blow account of my experience in the chair. When I tell him about it, of course he says he wants to see it.

The young attorney—her name is Cyrille–who meets us at the Riverhead courthouse to prepare us for our depositions is tall and wearing stilettos—and I am glad I’m at least wearing two-inch heels. She is accompanied by a second attorney, a baby-faced man named Hank.

I’m told I should be able to describe the ways pain has limited many of my activities and social relationships. However, I’m not sure it has—I continue to pursue most activities although sometimes in pain. She says to emphasize that I am embarrassed to appear in public wearing a scarf around my head (I have to do this because cool air aggravates the stinging), and cannot sleep comfortably due to “post-root canal tingling pain.”

The “30 General Rules of Deposition Testimony” leaflet I’m handed reveals many mistakes that witnesses commonly make, such as rushing to answer; volunteering information; elaborating; giving exact numbers rather than estimates; saying, “I don’t know,” instead of, “I don’t remember” . . .

We’ll need another session to go over my medical records.

At the next session, one of the partner’s sons is present with the records.

I say, “I spent almost two thousand dollars seeing all those doctors.”

He says, “Don’t mention that because then they will start adding up these figures and throw out a lowball amount. We are not interested in any one-hundred-thousand-dollar award.”

I can’t believe it–that one hundred thousand dollars–which to me sounds like a lot of money–is to him apparently a trivial sum.

He also says, “We definitely don’t want to go to court.”

My impression of the Hilton Garden Inn in Garden City is that it might be given over to prostitution—at least on the first floor. There is so much slamming and commotion, and when I look out the peephole always a different girl going into or coming out of the room across the hall; this goes on all night.

The law office is only a mile away, so we arrive there the next morning, settle nervously into a leather sofa in the darkened reception area, and watch the young lawyers and office employees come in one by one—and finally Harissa, the receptionist, with whom I’ve established a cordial phone relationship.

The paralegal has told me that the defense counsel is an inexperienced lawyer who is “crazy’—and that many of the delays in my case have been caused by her efforts to rack up billable hours.

Hank will be handling my deposition. He is dismayed I’ve written about the experience for a leftist web site, but says, “We’ll get over this.”

A tall middle-aged man in business attire enters the waiting area. A young woman in a red blazer appears next; they begin gabbing like old pals, and we realize he is the court reporter and she the defendants’ lawyer.

I’ve read that during a deposition a cardinal rule is to never try ingratiating yourself with the opposing attorney, or get the notion you are impressing them due to your professional status or intelligence. On the other hand, never let them antagonize you.

The lawyer in red who questions me for the next six hours has one of her fingers holding up the tip of her nose for much of that time so that the nostrils are prominently displayed—but remembering the advice I’ve read, I pay it no mind.

My testimony is liberally seasoned with so many “I don’t remember”s everyone has to chuckle—and at one point my attorney, Hank, falls asleep.

However, they do immediately establish I am a freelance writer and have self-published a book, Coffee to Go.

For now, combing through my dental history and recent medical records, she appears to be searching for instances where I may have researched my own condition or ignored a doctor’s advice.

We work our way forward to the needle jab:

“I felt an excruciating pain. It was the worst pain I ever felt in my life . . . It was prolonged and I screamed at the top of my lungs.”

She wanted to know exactly where I felt the pain. “It seemed to shoot up my whole body. It was just an engulfing kind of pain. . . . It is hard to recall pain. I know it was prolonged and excruciating, obviously . . .”

Q: Let me ask you this: Did the pain go into your neck?

A: I don’t remember any body part. You know, I would just have to imagine where it was, I don’t know.

Reliving pain isn’t easy. Right before the endodontist jabbed me, her assistant said, “You know what I feel like doing?”—I couldn’t imagine what this could possibly mean. Then the unendurable pain, then the endodontist began working on the unanaesthetized tooth; I screamed again. She stopped and reinjected me; neither expressed the slightest concern. For the rest of the appointment they kept up a steady banter about personal matters. It was as if I was not even there.

My husband says my notion that their behavior was sadistic and intended to cause injury is absurd. Moreover, if I make such a claim they’ll throw the case out—so I’ve kept these suspicions to myself and of course don’t mention them here.

At one point during the questioning I begin to experience palpitations and we take a break. It’s getting close to four o’clock—and the lawyers decide to break off.

The second half of my deposition, scheduled for the week after Thanksgiving, is postponed at the last minute.

The defense has ascertained I’ve self-published a book. I wonder if one of the stories in it, “The Practice,”—a humorous, semifictional take on dentistry—could be used to make me appear to be biased against dentists. The cover blurb lists some of the book’s themes as “. . . disillusion and dead ends, corporate malfeasance and medical malpractice, and the petty and immense indignities of big city life.”

I manage to get through to Hank, who reassures me it’s just a “red herring–You were jabbed.”

However, by the beginning of January I still have no date for the second half of my deposition. The paralegal says the defendants’ lawyer is insane–and refusing to settle–“’Not a dime,’ she is saying.”

I try to get through to Hank, but Harissa won’t let me talk to him, insisting that Cyrille, who is getting ready to take the bar exam, is the one working on my case. She’s very busy, and I should leave a message on her tape, but she doesn’t return my calls.

I really do need to talk to the lawyer himself and leave him a phone message saying we want to set up a meeting. Cyrille calls back and says his wife is ill and he won’t be able to see us for a few weeks.

When Cyrille does finally get back to us weeks later, she says they are having difficulty obtaining a “certificate of merit,” which must be presented to the court in order to proceed with my case. I am startled that after two years, they suddenly seem to be saying they have not yet made any effort to obtain this document and might not be able to find any medical evidence for malpractice.

I email a friend who has some legal training and tell him my lawsuit has hit some snags: “ . . . they’re incommunicado … and suddenly can’t find evidence for malpractice.”

He emails back: “Part of the solution to getting an out-of-court settlement is downsizing the client’s recovery expectations, which you have to accept. They took the case and have to follow through. . .”

“Maybe they’re angry about the book?”

“Lawyers don’t like surprises late in the game. It makes them look unprepared and wondering what else is out there. I recall reading that episode in your book and don’t think anything in there is compromising to you or libelous. Your evidence is what you state under oath, not in a work of prose, which can be semi-fictional.”

“Would they be permitted to withdraw from the case?”

“Possibly for good cause but not because the case turned out to be more difficult than expected. Cases usually do. They investigated the case before they signed on, obviously thought it had merit, and filed a complaint. Contingency agreements are not entered into lightly . . . that was their chance to decline representation. …At this point, having entered an appearance, they would have to get the court to approve their withdrawal, and you could oppose that application if you chose.

“Usually withdrawal applications are granted for reasons like conflict, clients not paying bills—not a case turning ‘difficult.’ That is part of the legal trade.”

Despite Harrisa’s best efforts, I do finally manage to reach Hank—by having my husband phone in after hours.

“You didn’t have to do that–you could have called me yourself,” Hank declares disingenuously, reiterating that it’s Cyrille I should contact–she’s the one in charge of my case. “I only do ‘slip and falls.’”

However, because we’d bonded a bit he does confide, “They don’t want to spend any more money on your case.”

He tells me I can track scheduled appearances before the county civil supreme court judge by going to the ecourt Web site. When I do, I see that over the past few years numerous “meetings” about my case were “adjourned,” which I think means that none of the lawyers showed up.

Since the only way to reach my attorney now is through Cyrille, I keep trying. After weeks of radio silence she calls back.

“I have some good news. We’ve found a dental specialist to review your case.”

When I tell my legally trained pal this, he says, “They have a list of experts as long as your arm.”

And he’s right. The notion it would be difficult for them to obtain a specialist to review my case is absurd—one of the partners is himself a medical expert. They’re a major malpractice firm with five offices in Manhattan, Brooklyn, and on Long Island. They’ve represented WTC victims and once won a record $40 million award for a client.

Late on a Saturday morning, a car pulls up to our house; a smiling FedEx man delivers an envelope–from our lawyer. I hold my breath. It reads:

Dear Mrs. Deacon,

As previously expressed by telephone conversations over the course of the past few weeks, we have not gone forward with scheduling your continued Examination before Trial. The reason . . . is that we have been advised by a dental expert that there were no departures from standards of good and accepted dental care by the defendants which caused your injury, pain, and suffering.

. . . The main obstacle we have encountered in trying to help you by prosecuting a dental malpractice claim is the scientific and dental literature pertaining to the damage that can be caused to the trigeminal nerve. . . .Where the trigeminal nerve is injured, the resulting condition is called Trigeminal Neuralgia. . . .

What!?? I stopped short after reading this–every dental expert I saw said I had a trigeminal neuropathy from an externally caused injury–not trigeminal neuralgia, a spontaneously arising condition caused by compression, as when a blood vessel presses on the trigeminal nerve. Nonetheless, my lawyer tells me they can’t attain the dental opinion needed to file a certificate of merit and prevail based on damage caused by trigeminal neuralgia.

This is best explained by this simple analogy: Albert Einstein would not be permitted to offer testimony regarding E=mc2 until his colleagues in physics acknowledged that in fact this was a reliable statement considered in the community of physics. E=mc2 was a revolutionary thought, just as was Copernicus revelation that the earth revolved around the sun and not the sun around the earth or as Darwin determined that evolution was a process that affected all species on earth. In each instance there may be truth and merit to such scientific testimony, but as a matter of judicial policy none of the testimony could have been said in a courtroom, until it had been recognized by a significant segment of the expert community. Because the pain that you have described is the type that comes and goes intermittently, finding a dental expert to support a claim of dental malpractice will be nearly impossible, in our opinion. As stated above, the literature confirms that the condition/disorder that results from injury to the trigeminal nerve causes permanent damage and permanent pain.

Enclosed with the lawyer’s letter is a copy of an astonishing medical opinion submitted by a Dr. N, the general dentist selected to review my case. Though engaged as the plaintiff’s expert, he quotes at length from records written by the defendants—the very people we are suing.

Not surprisingly, he finds “no deviation from the standard of care.” I “appear to be a very anxious individual who does not take any type of dental treatment easily.” I received “proper treatment,” have “high-anxiety issues,” and “seem to transfer these symptoms to [my] teeth . . .”

Certainly the defense would be delighted to have Dr. N base his opinion solely on their records. The findings of my three oral surgeons and former endodontist—who said I had a nerve injury secondary to the procedure–are nowhere to be found! Did Dr. N ignore them? Did he ever see them? Why would my own lawyer withhold supporting records from his own “expert”?

So in conclusion, my lawyer tells me, I have two options: I can either find another lawyer or drop the case— and to think this over carefully and then “give us a call.”

After calling several times we finally succeed in arranging a meeting with our lawyer at the Riverhead courthouse.

On the appointed day, we spot him as he is leaving, and the three of us walk over to the deserted cafeteria and seat ourselves about a table surrounded by roaring snack machines.

I tell him we are challenging every point in Dr. N’s letter—and want it withdrawn. We question why my oral surgeons’ remarks weren’t included in his evaluation.

Why was he selectively given records that could be damaging to my case? And why had it taken over two years to find a dental expert? A “certificate of merit” should have been acquired at the outset.

The lawyer says he received my records from one of the oral surgeons two years ago, but didn’t find it all that compelling. I remind him about the Columbia Presbyterian head pain specialist, whose records I gave him two years back. He jots down her name as if hearing it for the first time and asks me if I want him to contact her.

My mind is reeling. My legally trained friend suggested part of my lawyer’s game was getting me to scale back my expectations, and so I say, with little hope, “I would agree to settle for $25,000—$15,000–or even less.”

“Oh no,” he says. “This is a six-figure case.”

I ask him if he plans to seek the court’s permission to withdraw as my attorney.

“Oh, no,” he says. You could sue me if I tried that.”

But his previous warning in the letter about dropping the case or finding another lawyer suggested he might do exactly that.

And then, “You’ll be hearing from me soon—by next week. After that, I’ll be leaving the country for a while.”

Once again, on a Saturday, a knock at the door is that of a courier who hands us an envelope. He says, “Call your lawyer Monday.”

A motion to the Supreme Court, delivered as a summons, requests we show cause on August 21, “at 9:30 in the forenoon of that day or as soon thereafter as counsel can be heard, why an Order should not be entered hereon . . . granting [my lawyer] leave to withdraw . . . and granting an attorney’s lien for its disbursements in prosecuting the action, in the sum of $2,517.91 on any future recovery monies obtained by plaintiff, through the prosecution (i.e., trial, settlement, etc.) of the action . . . ” We have “a stay in all proceedings for a period of ninety (90) days to obtain new attorneys.”

The grounds are “irreconcilable differences [that] have arisen between the plaintiffs and the firm over the litigation of this matter to be “stated to this Court ex parte.”

Since at no time did we ever express any disagreement or differences as to the litigation of the case–and fully complied with all our lawyer’s instructions, we can’t imagine what he plans to say ex parte to the judge.

I notice that attached to the summons is a copy of my original complaint served to the defendants, and their answer—I’d never seen it before–wherein our former dentist states that we lack capacity to assert our claims and he demands dismissal “together with the costs and disbursements of this action.”

Only now does it dawn on us we might be liable for the defendants’ court costs. Should Dr. N’s uninformed—if not outright fraudulent—letter find its way into their hands, could it give them grounds to claim our lawsuit is frivolous and initiate a countersuit?

Our own lawyer refuses to level with us, treats us like imbeciles, abandons us without so much as a phone call—and is now withdrawing for specious reasons. One might think that allowing him to do so might be the best course.

And yet, it appears the only way to prevent Dr. N’s meretricious letter from becoming part of the court record may be to challenge his motion. We wonder if we can do this ourselves without legal representation.

We certainly can’t afford to hire an attorney.

I call the judge’s secretary. She refers me to the county bar association and says we should write a letter to the judge. However we vaguely understand any contact with the judge outside of normal channels to be an improper ex parte communication.

The judge’s law clerk flatly refuses to speak with us and says we should contact the pro se clerk at the law library.

The pro se clerk says, “You have to keep that letter from Dr. N away from the defense,” or they might go ahead and try to countersue. My husband and I draft a letter to the judge attempting to explain our situation but the pro se clerk says don’t send it. Apparently each judge is free to formulate procedural rules for his own court. The pro se clerk says the clerk of this particular judge is a stickler for rules and will insist we comply with the court procedure—

We will have to engage a licensed document server to hand-deliver a notarized affidavit of a properly drafted countermotion to all parties–the defendants and their lawyer as well as our own lawyer–prior to our August meeting before the judge, and also provide a copy to the court.

This will run into hundreds of dollars. And since we have no idea whether this action may ultimately backfire—and end up giving the defense access to Dr. N’s letter—we sit on our hands and do nothing.

Three months later, the Supreme Court of the State of New York, County of Suffolk, noting that “Plaintiff’s counsel has offered compelling reasons to be relieved” and we, the clients “have not opposed,” grants my lawyer’s application to be relieved as counsel, pending a status conference at the Court on December 11.

During the third week in November, we receive a letter from Cyrille:

“I have been advised that you have contacted the office seeking a reason as to our firms [sic] withdrawal of [sic] your dental malpractice case. The reasons we had to withdraw as your attorneys are fully explained in [the lawyer’s] letter to you dated April 2 [sic]. Also attached to [the] April 2 letter was a correspondence from [Dr. N] stating that he is unable to find a deviation from the standard of care which is needed in order to pursue a dental malpractice claim in New York State.

“I also understand that you had concerns that the Judge or defense attorneys are in receipt of [Dr. N’s] report and/or the reasons that we had to withdraw as your attorneys. This is not the case. . . .”

We are quite confused. To show cause, they’ve cited “compelling” evidence. Yet they claim the court has not received the same explanation that has been given to us.

My husband wants only to put the whole lawsuit permanently behind us. If we choose to pursue the matter, he thinks we could be liable for as much as $20,000. At this point I want out, too. We have no idea what we are doing and can see we are in way above our heads.

My legal friend suggests offering to withdraw from the lawsuit “with prejudice” (agreeing to initiate no further legal action), might give us some leverage.

He says I should call the defendants’ attorney—and to be sure to get all of it in writing.

When I call her to say I’ll drop the case “with prejudice” if she agrees not to countersue, she says “Yes” in half a second. We arrange to meet on December 11 at the courthouse to finalize this—and she hopes I have a happy Thanksgiving. I wish her the same.

Did we give up too easily? If I’d chosen to ignore the adage about self-representation–having a fool for a client and an ass for an attorney–could I have obtained the needed letter of merit? We’ll never know.

On December 11 in Riverhead, my action was “dismissed with prejudice as to all defendants, without cost to either party as against the other. This Stipulation may be filed without further notice with the Clerk of the Court.”

All we had to do was sign, and the defense attorney handed the Stipulation of Discontinuance over to the Clerk. The courtroom was packed with scores of attorneys, who upon entering registered their presence on a blackboard at the back of the room and settled in to wait their turn to put in appearances, file motions, hassle over the minutiae of cases, and whatever else lawyers do, but we signed and left. Our business was finished and we were all able to leave before the judge arrived.

Sometimes I wonder if my lawyer quietly made a deal with the defense. Faced with a problematical case and a limited potential payout, did he feel he needed to extract himself by any means necessary? My husband is puzzled why he even took it in the first place.

On balance, I’m very glad he did. Even an aborted legal effort gives you a heady sense of fighting back. The lawsuit ultimately didn’t go anywhere; for years it didn’t go away either–and during this time the endodontist may have suffered a few sleepless nights.

But because my injury was not at all catastrophic–and the case far too difficult to sustain the efforts of a contingency lawyer–in the end I was no match for her insurance company and their attorneys—or my own lawyer. Like most people, I couldn’t afford to pay out of pocket, and lacked the resources to effectively seek redress.

More articles by:

Kathy Deacon can be reached at stradella3@msn.com.

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