A young female athlete girl breaks her leg playing soccer. After treating the fracture the doctor sees the potential of a more serious condition and calls her back. While he is doing the tests she begins to study the diagnosis, treatment and outcome of the treatment and in doing so she encounters something disturbing. Are all the surgeries being done for this condition necessary?
Sam Calls Three of The Plaintiffs
Sam called several experts to quantify the losses. Two therapists described an amputee’s limitations.
Sam had determined to put three of the amputees on the stand to conclude his case. He selected Maria Salam, an RBK, Kathy Seneft, an LAK, and Julie Pierce, an LHD.
When court opened he stood. “I call Maria Salam to the stand.”
Maria was wearing her BK peg leg prosthesis. Her gait was steady but obviously altered. Ten minutes of questioning centered around her amputation and how it impacted her life. When Sam finished Goldstine declined to cross but reserved a right to call her later.
Sam called Julie Pierce. She was wearing her cosmetic prosthesis. Her gait was very much like the therapist described. Again there was a short direct and no cross. With that Sam called Kathy Seneft. Kathy came to the witness stand on her crutches. She was wearing a short skirt. Her bandaged stump was only visible when the skirt lifted slightly as she crossed the room. She was seated and sworn.
Sam walked to her. “Mrs. Seneft. How long have you been an amputee?”
“Just over five years.”
“Can you tell me how that happened?”
“Two weeks before Thanksgiving of my sophomore year in high school I started having pain in my leg. It was really bad at night. By December fifth I couldn’t sleep without taking several Ibupropin before going to bed and several more about two AM. I went to the doctor. He had me go for an x-ray. When it came back with a spot on the lower half of the femur, he scheduled the first biopsy and sent me to Dr. Klemek. When it came back Sarcoma he recommended a just above mid thigh amputation. My parents asked for a second test. Because we lived close to Mercy, I was sent there. The test came back Osteoma which is benign. The recommended treatment was injections into the bone.”
With this conflict what did you do?”
“I was sent for the third test, it came back Sarcoma. Dr. Klemek and my primary care both strongly recommended the amputation. I had the surgery on December twelfth and was home from the hospital the day before Christmas. The blood tests after surgery indicated I did not need chemo.”
“So you had the surgery in spite of one test that indicated benign?”
“The doctors told us the kind of cancer was one that quickly moved to the lungs and killed the person. My dad said he wanted me alive and I went for surgery.”
“Any reason?”
“My doctor said he had two other cases where Mercy disagreed. He implied they were wrong. I wanted another test. They said I was risking my life. With that, what else could my parents have done?”
“And how has this impacted your life?”
“Every morning I get up I know I don’t have my left leg. I have to plan everything so I have my peg leg, my cosmetic, my crutches or my wheel chair. My stump needs care every day. My life is complicated by not having a leg.”
“Thank you. No more questions.”
Attorney Goldstein stood. “I will defer the cross examination to Attorney Lawrence.”
He motioned to a woman in her late twenties at the table, handed her the button and sat down.
When Julia Lawrence stood it was obvious to Sam this had been carefully staged. He remembered seeing her come in at the beginning of the session. She was on the Western HMO team but had not been in the courtroom till today. Julia reached down along her chair, picked up a pair of folding forearm crutches, used them to push herself to a standing position, and crutched across the room. She was wearing a very short skirt that showed the end of her LAK stump. Sam saw her prosthesis on the floor. This had been carefully staged. “Mrs. Seneft. You have blamed the doctors and the labs but isn’t it true that you and your parents made the decision for your amputation?”
“Yes. But.”
Julia cut her off. “Just yes or no. Answer the question.”
“And you could have asked for another biopsy.”
“That wasn’t a question. You told us to only answer the question.”
Julia’s face went red. Sam smiled. That treatment on the first question had turned Kathy into a fighter as it had Laura. Sam was not sure why but it was making her a more formidable opponent for the defense.
“Couldn’t you have gone for another biopsy?”
Julia had expected the answer to be “yes.”
Kathy’s response came back, “No. I couldn’t.”
Julia stood motionless, grasping for where to go next. She must negate the testimony. Her position on the case depended on destroying this witness. This answer was a setback.
“You couldn’t?”
“No.”
“You are under oath. Are you sure of that answer?”
Sam was up. “Objection. Badgering the witness.”
“Sustained. The witness has already answered the question.”
“Why not?”
The counsel for the Western HMO was up. “Objection.”
The judge looked back and forth between the two lawyers. “Please. Will the defense please decide for me, do you want this question answered? I am accustomed to arbitrating plaintiff – defense disputes, don’t add defense – defense disputes to my workload.”
Julia looked at the lawyer. He shook his head no. She nodded. “I’ll withdraw the question.”
Sam smiled and wrote a note to Terri. “Do you know why? They apparently do and it must be bad for their case, at least for the HMO.” She smiled and wrote back. “I believe it was money. Will verify.” Terri slid out and started out of the courtroom. She saw Kathy’s husband and motioned to him. He followed her. Outside she asked if he knew the reason.
“Sure. The HMO refused to pay. Her dad was laid off. The kids at her school raised over three thousand dollars for her first leg. She wore the temporary socket and peg leg for almost a year till that happened. The HMO would pay half of the leg, the family didn’t have the rest of the money.”
Terri thanked him and went back in. She wrote, “Dad laid off. No money. HMO refused to pay for it. Family didn’t have money so kids at school raised money for first leg.”
Sam read it and smiled then wrote. “You re-direct.” He handed her the red button just as Julia said, “No more questions.”
Terri stood and held up the button. “Redirect.” The judge nodded.
“Could you tell us why you didn’t have another biopsy?”
The word “Objection,” echoed off the walls.
“Overruled. Answer the question.”
“My dad was laid off. Money was tight. Our house was up for sale because we couldn’t pay for it. The HMO wouldn’t pay for another biopsy. So I…”
“Objection, hearsay.” echoed again. As it did Terri motioned to Kathy to wait. “Your honor, I present in evidence a letter from the HMO denying payment.” She handed the letter to Kathy, then to the judge. Sam smiled. She had picked up the letter in anticipation. With a little guidance she could make a good lawyer.
“Overruled.”
“Continue.”
“So I had the surgery. They told us on the phone it was rejected. The letter of refusal came after I got home from the hospital. If you read the letter it says they told us on the phone.”
“No more questions.”
Julia immediately rose. “Recross. She crutched to the witness. “Didn’t the letter tell you that you could appeal the ruling?”
“Yes.”
“So you elected to not appeal. Is that correct?”
“No. Why would we appeal then? My leg was gone. The post-op report said sarcoma. Another test wouldn’t change anything.”
“So you did have cancer and your claim is frivolous, isn’t it?”
“No, it is not frivolous.”
“Are you a doctor.”
“No.”
“Mrs. Seneft, you say your amputation limits you. How much money did you make last year?”
“About fifty two thousand dollars.”
“Would you consider that a good income?”
“Yes.”
“And if you had two legs, would you be making more?”
“I don’t know.”
“Do you have friends in the same line of work?”
“Yes.”
“Do they have two legs?”
“Yes.”
“Do they make more money?”
“One does, the other two make less.”
“So your amputation has not reduced your earning power.”
“Was that a question?”
Julia suppressed the urge to say, “you know damn well what the question is, just answer it” but she said, “Let me rephrase. Doesn’t this refute your claim of lost income?”
“No.”
“How can you say you make as much as the others and still have lost income?”
“I could have made more. Because of my amputation I turn down work. I turned down nearly twenty thousand dollars of work last year that involved travel I wasn’t comfortable doing. Travel is difficult. I had to decline several because of the travel. I would have made an additional twenty thousand dollars. That is more than any of the others.”
“No more questions.”
Kathy crutched from the witness stand and went out.
Sam stood. Your honor, the plaintiff rests.
Attorney Goldestine stood. “Your honor. I would like to request a recess till tomorrow morning.”
Judge Sylvia Rolls looked at the clock. “Mr. Goldstine, It is ten minutes till eleven. I want to try at least one case after this one before I retire. I will recess till one PM.”
After lunch Judge Sylvia looked at Dean Goldstine, “Is the defense ready?”
He stood, “Your honor, we are ready.”
“Proceed.”
Dean Goldstine began what promised to be a long string of witnesses. The first was Dr. Jason Dromen, a pathologist. He was sworn and qualified. He had made and reviewed the computer graphics of the slides and had concurred with Dr. Abdul’s diagnosis in every case. He had extensive charts for the jury and provided printed copies for the attorneys. The direct testimony took the rest of the afternoon. When he finished the judge recessed for the day.
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