Damages

Barry Werth

• Publisher: Simon & Schuster
• Year: 2013
• ISBN:
  9781439142486
• Topic: Diritto
• Subtopic: Diritto in ambito scientifico e tecnologico

Damages is the riveting true story of one family's legal struggles in the world of medicine. At the urging of a friend, the Sabias filed a medical malpractice lawsuit against Dr. Humes and Norwalk Hospital. Barry Werth takes us through the seven-year lawsuit, allowing us to see the legal strategy plotted by the Sabias's attorneys, Connecticut's premier medical malpractice law firm.

ONE

FEBRUARY 25, 1983

DONNA MARIA FITZGERALD GUNNED THE motor of her 1970 Dodge Dart, slipped through two lanes of traffic, and coasted to a stop just past the Woodrow Wilson Memorial Bridge on I-95, near Washington, D.C. Minutes earlier she’d invited a trucker she’d heard on her CB radio to pull over at a rest stop for coffee. He was trying to duck rush hour, said he didn’t have much time, and offered to share his thermos instead. They said they’d meet after the bridge. With her daughter Shannon, five, prating with her dolls on the back seat, Donna smoked a cigarette and waited. At five feet one and 102 pounds, she had crow-black shoulder-length hair, a tough-pretty face, hard stance, and wary eyes.

Tony Sabia was a sinewy twenty-seven-year-old former Marine barreling south in an empty car carrier from his home in Norwalk, Connecticut. Possessed of what he calls a “raw attitude,” he was jocular and blunt, and Donna liked the way he sounded. She wasn’t disappointed when he climbed out of his truck. Medium height, he wore faded boot-cut jeans, a T-shirt with a beer logo, military-issue black-frame glasses, and a shaggy copper-brown perm. His combat boots were meticulously shined and he smoked Kools. They talked and drank Tony’s coffee for about fifteen minutes. Donna was hard of hearing in one ear, so the hurtling traffic made it hard for her to hear even though she and Tony almost shouted. She told him she could drive a semi, and Tony said maybe he’d call some time and they’d drive together.

Watching him yank himself into his cab and roar off, Donna doubted the invitation was sincere. At twenty-four, she’d been on her own “a long time” and was skeptical of men. Her real father “wasn’t around much,” so her mother had divorced him, putting Donna and her two sisters up for adoption when Donna was three. After growing up in spare comfort in the Maryland suburb of Riverdale, outside Washington, she’d fled home soon after her eighteenth birthday, and her adoptive father had called the police to stop her. Within a year she’d had Shannon, whose father, a keyboard player with a bar band, was a nonpresence before and since. Two days before she met Tony, a guy she was seeing had asked her to marry him. “He just wanted someone to take care of the kids,” she says drolly. “I was, like, ‘I don’t think so.’ ”

When Tony called a week later, Donna was surprised, then elated. They talked for hours that day and the next. Two weeks later he picked her up and they drove together to Houston, where they climbed on top of the truck, threw down a blanket, and tanned themselves. Donna hadn’t felt so free in years. Tony gives a first impression of wiry belligerence. He smolders. He also chain-smokes and has a bopping insouciance, a bouncy working-class verve and integrity. Donna was taken with his smile—he had perfect teeth—and his bluntness. When he called the next time about a run to West Palm Beach, she packed up Shannon, drove to Norwalk, and left her for three days with Tony’s parents and sister while she and Tony teamed south. Tony said it would be okay.

That—plus eight hundred dollars in long-distance telephone calls—was their romance. On the phone a week later, Tony proposed. “I don’t know if that’s exactly how he wanted to do it,” Donna remembers. “But I didn’t let him get away.” So on the morning of May 4, Tony and Donna drove to the Arco station in Norwalk where Tony’s father hung out after work, borrowed a hundred dollars, and took I-95 to Virginia. The next morning they went for blood tests in Arlington, bought two rings at an antique store, and picked a justice of the peace from the Yellow Pages. After the ceremony they picked up Shannon at kindergarten and Donna introduced Tony as her new father.

They merged their belongings and moved in with Tony’s parents in Norwalk. The house was a vinyl-sided three-bedroom raised ranch in a luckless subdivision called Bound Brook Estates, locally known as Sunken Homes. One hundred and five lots on a reclaimed swamp, the neighborhood was in slow-motion collapse. In dozens of the lowest-lying houses, windows, walls, floors, and joists buckled and cracked. Pipes sheared and posts poked helter-skelter through wavy rooflines as houses sagged into the water table. The whole place, at the heart of Fairfield County, one of the wealthiest counties in America, was settling into the weak earth. With Tony’s sister and her husband already in one bedroom and Shannon in another, Tony and Donna commandeered a twin bed in a basement playroom, the smallest room in the house. Tony bought a water bed, but his mother, fearing it would sink the house further, made him drain it.

His friends know Tony can be maddening; he has a chip on his shoulder, doesn’t like bosses, seethes when he feels slighted and tends to get into fist-fights. Getting through to him when he’s made up his mind, says one, is “like telling a stone wall to move.” But he never doubted his duties as a husband or father. The night after he and Donna arrived in Connecticut, he foreswore long hauls and went to work with his father, driving for Standard News, a newspaper delivery company in Stamford. The work was backbreaking and mindless—heaving 20,000 papers, 40 to 50 in a bundle, onto a truck, then driving all night to drop-off points throughout southeastern Connecticut. The route, he says, took him places “the cops won’t even go,” so he bought a black 9-mm pistol, which he kept tucked under the seat of his cab. But the pay and benefits were good, it was a union shop, and Tony liked the solitude of the graveyard shift. Also, he could spend his days with Donna while Shannon was in school. For all its rashness it was not a bad start: they were in love, Tony was making money, they had a future. Shannon “resented the fact that I left her with people I didn’t really know” when she and Tony first ran off, Donna says, but the girl was beginning to like Tony’s father.

Then, too soon, they had trouble. After less than a month on the job, Tony hurt his back swinging a bundle of papers off the back of his truck. He slumped home, “lightning bolts,” he says, shooting down his right leg. Donna had to lift him into bed. “I couldn’t do shit,” he says. Out of work and married just two months, he was operated on a few weeks later to remove a herniated disc. “They were wheeling him out of his room,” Donna recalls, “and they handed me his watch. Nobody told me what to do. I was just standing there. That’s when I found out he had a plate. I walked over and found these dentures in a glass by the bed and said, ‘Where the hell did these come from?’ ” Two days later, friends brought Tony beer in the hospital, and, refusing painkillers, he shuffled down the street with them to a Fourth of July party, telling the nurses he’d be back in a couple of hours. He shrugs wryly: “I had my cane, I had my slippers, so I went.”

Tony’s health insurance paid for the operation and a private hospital room, but he hadn’t been on the job a full twenty-six weeks, and when he was discharged, he lost his coverage. He got a lawyer to fight his insurer. Then the motor went on his van. “Two weeks after I got out of the hospital, I was pulling the engine,” he says. “Donna went ballistic.”

Donna had always worked. Before she met Tony, she’d waitressed at a Lum’s, biking fourteen miles each way on an interstate when she couldn’t afford a car. Now she started hostessing at the Silver Star Diner on the Post Road in Norwalk. Tony qualified for workmen’s compensation, but money was still tight, and Tony’s mother resented having to support them. The flash point was the phone—“my tombstone,” Donna says, gripping a receiver. Missing her mother and sister, she called them every day. When she wasn’t on the phone, Tony’s sister was. Tony and his father avoided the issue, but as the bills piled up, Tony’s mother bridled. There were other tensions: about cleanliness, about noise, about who was doing what around the house, about Shannon, about Donna’s sleeping late. But with the phone, things spilled over. Finally, Tony’s mother refused to pay the bill, and the service was cut. “That,” Donna says, “was hard. The worst situation you could be in is to live with a man in his mother’s house and also have his sister there. Tony’s mother I tolerated because she was his mother. His father I had a lot of respect for. If he told me to shut up, I shut up.”

In September, Donna awoke feeling nauseous. She bought a home-pregnancy test, took it home, and confirmed what she already knew, that she was several weeks pregnant. She and Tony quit sharing the twin bed, and though his back still hurt, he started sleeping on a sofa. He tried to go back to work, but the company wanted him in a desk job and he refused. To make ends meet he started selling marijuana, the only time in his life he did so, he says. Donna tried to stop him, but Tony says he couldn’t see how else to provide for his family. He pledged to quit as soon as the company let him drive again.

Without private health insurance, Donna started going to the maternity clinic at Norwalk Hospital. The clinic charged $1,200 in advance, and Tony paid it in installments. Donna had gone to a similar clinic in Maryland when she was pregnant with Shannon and knew what to expect: crowded waiting rooms, grinding waits, harried nurses, now-you-see-them-now-you-don’t doctors. Though she dreaded the waiting, she wasn’t disappointed. Each time she saw the hospital, a maze of brick towers squatting fortresslike on a hill overlooking downtown Norwalk, she felt a vague comfort. She trusted hospitals; people in hospitals knew what they were doing.

Norwalk’s clinic was staffed mainly by nurse-midwives, an arrangement just coming into vogue that served the interests of both the hospital and its obstetricians. Uninsured pregnant women like Donna had long been a problem for them both. Norwalk, a dour, fading nineteenth-century port city, was surrounded by some of the richest suburbs in America but was itself poor. The hospital was midsized, urban, and aging, yet because its local patient base was increasingly low-income, it had been forced to compete aggressively for insured patients, not only against richer community hospitals in Greenwich and Stamford but against world-famous university medical centers in New York and New Haven, both less than an hour away. Making matters worse, it had no house staff—low-paid doctors and residents—who at those other hospitals treated indigent patients at reduced cost.

Hence the three-year-old clinic. One in five babies at Norwalk was now a clinic birth, making the clinic one of the hospital’s busiest services. Yet its twelve or so affiliated ob-gyns were required to attend clinic patients on average only about five days a year, plus four weeks on-call for deliveries. Otherwise they were left to their private practices. There was a Wednesday clinic for straightforward, low-risk pregnancies, and a Friday clinic for more complicated cases. To maintain staff privileges doctors saw clinic patients on Fridays only, rotating monthly without pay. The plan had an undeniable appeal: the hospital received the doctors’ services for free, enabling it to cut costs, while the doctors distributed the financial burden of serving Norwalk’s growing number of uninsured new mothers, who gained access to physicians they normally couldn’t afford to see.

Because Donna had had an uneventful pregnancy with Shannon and was generally healthy, she was assigned to the Wednesday clinic. It was first-come, first-served, and she spent the mornings squirming and reading dog-eared magazines until she was seen. She stopped smoking. In November, Tony went back to work and Donna got a job as a cashier at Kmart, which had begun hiring for the holidays. They were bringing in real money now, but the phone was still shut off. After her clinic visits Donna called her mother from pay phones.

Donna’s belly grew quickly and Tony joked about it, crudely but in a way that also made her laugh. He told her, “If it’s twins, I’m gonna kill you and eat the babies.” His malevolence was feigned, but Donna was worried and knew Tony must have been worried, too. What if there were twins? Where would they put them? Their room was “wall-to-wall furniture” as it was. Besides the water-bed frame, which now held a queen-sized mattress, there also was a couch, a TV table, and, because they had no closet, a metal clothes rack. There was a hanging bedsheet for one wall. Christmas was approaching and Donna already felt faint after standing for eight hours at work. Her back was killing her. She was so big already, she couldn’t imagine carrying one baby, much less two, another four months.

Because she was growing so quickly, the clinic sent her for an ultrasound exam, on December 5. Donna hoped the test would show she was having just one big healthy baby, and when she couldn’t distinguish the grainy images on the little black-and-white monitor in the examining room, she felt reassured. Then the radiologist performing the exam told her he could see two hearts, bladders, and stomachs. Donna laid her head on the table and cried.

She would remember him saying little else, but in a written report to the clinic, the radiologist raised two concerns. The baby on the left, Twin A, appeared larger than Twin B, though how much was unclear. And, he noted, there seemed to be a “moderate” excess of amniotic fluid, possibly indicating other problems. These could include birth defects, congenital viruses, maternal diabetes, fetal heart failure, and the risk that one of the twins was thriving at the other’s expense, an imbalance which, if severe enough, could result in the death of the deprived twin. In his note the radiologist suggested that Donna be monitored with subsequent ultrasounds.

Donna was afraid to tell Tony the news about the twins. When she did, he lit a cigarette, clenched his jaw, and laughed: about his morbid threat, about the apparent conception date a week after he came home from the hospital with his bad back, especially about the twin bed. Whatever happened, he told her, they would handle it. Donna wasn’t sure, but she believed him. She quit her job at Kmart, and started eating better and resting more.

With the discovery that she was carrying twins, Donna was switched to the higher risk Friday clinic, which cost another $400. Four weeks later, on January 5, she went for a second ultrasound. The smaller twin now had turned and was head down, allowing the radiologist to compare head sizes, which seemed slightly different. Overall, he estimated that Twin A weighed about 18 percent more than Twin B. Consistent development in twins is desirable, but as a tool for measuring fetuses ultrasound is notoriously inexact. In his report, the radiologist noted that the disparity might simply be within the statistical margin of error.

Whatever concerns were raised by Donna’s sonograms were not reflected in her visits to the clinic. There she and the babies were thought to be thriving. They seemed to be doing so well, in fact, that two weeks after her second ultrasound the staff proposed that she see a doctor not every visit, as planned, but every other visit. Hospital guidelines for the Friday clinic called for “medical management,” meaning that although the doctor on rotation was in charge of monitoring a patient’s progress and directing care, he didn’t have to examine the patient directly. The nurse-midwives were capable of that. The alternating-week arrangement was approved by the physician on staff for January.

Though Donna felt fine, her next ultrasound was on January 27. This time, the radiologist wrote, everything appeared normal: heart rates, amniotic fluid, even the relative sizes of the twins, which he estimated to be about equal. With the babies approximately the same size, and no further evidence of excess fetal fluid, he advised the clinic that a follow-up ultrasound might still be done, but only if “clinically indicated”—if either Donna or the fetuses seemed to have a problem.

Beginning her third trimester, Donna felt huge but in no way ill. Out of work and with little to do, she spent long hours again on the phone. She was often lonely and restless, and on an afternoon in February she took Shannon sledding on a local hill. She fell in the snow, hard, on her butt, she says. Scrabbling awkwardly to her feet, she laughed it off. Her body was becoming ridiculous. She looked forward to getting it back after the twins came.

Tony’s health insurance was reinstated on March 1, but by then Donna had no thought of switching to a private doctor even though she could now afford one. She was at thirty-four weeks—almost at term. Moreover, she liked and trusted the nurse-midwives. She now knew all of them by name, and they knew her. Six years earlier, when she’d had Shannon, she’d understood little about giving birth. First she hadn’t known she was in labor. Then she’d had no one to take her to the hospital. She’d ended up calling an ambulance and laboring alone for eighteen and a half hours: “Here I am not knowing any of the doctors,” she recalls. “I’m spread-eagle for all these people, and they take an X-ray because they don’t think I’m big enough to deliver her. After the X-ray I collapse.” This time, Donna thought, she’d be prepared. With her mother and sister in Maryland and Tony’s family offering little in the way of comfort, the midwives would be her allies during the delivery.

March in Norwalk was typically muddy and grim. At Sunken Homes new fissures appeared with the thaw. Sewer lines buckled under the shifting weight of some of the houses, spreading sewage underneath and unleashing a malignant stench. Tony’s family was luckier: floors sagged, but held. Donna cleaned as much as she could, but the tensions with Tony’s mother and sister, the latter also now several months pregnant, only increased. She fought with them—then, more and more, with Tony. They started looking for their own place, but everything was too expensive or too small. Donna seemed sullen and anxious, Tony coiled.

On Friday, March 30, Donna was examined during her regular clinic visit by Barbara McManamy, a nurse-midwife whom she’d seen on at least one other occasion, the day of her first ultrasound. McManamy had recently taken on added responsibility for running the clinic, and Donna thought her especially capable and caring. Slender, pert, intelligent—she had a masters degree from Columbia University—McManamy, thirtyish, was a young mother herself. She wore her sandy hair in a neat pageboy and her pale eyes were warm and blue. Donna trusted her.

McManamy examined her belly, measuring the position of the babies and hearing two heartbeats. It had been the midwives’ suggestion to alternate Donna’s clinic visits between a physician and a midwife, a decision McManamy felt strongly had benefited both Donna and the hospital. Because twins are generally smaller than singletons, the greatest risk to them is premature delivery. But Donna, at thirty-eight weeks, was now a week past the acceptable delivery date for twins, who because they develop quicker can also survive earlier outside the womb, and so the burden of care had shifted from preventing her from giving birth too soon to ensuring that she didn’t deliver too late. McManamy told Donna she was doing great; the babies were of ample size and by every indication doing well, and so was she. To herself McManamy was even more emphatic; twin pregnancies, she thought, “don’t go any better.” At Norwalk as elsewhere, midwives struggle for professional respect. Donna’s successful pregnancy was evidence to McManamy that they could collaborate with doctors even in difficult cases.

That night Tony wanted to go out with friends and he and Donna argued. Donna wanted to go with him; he didn’t want her to go. When he got ready to leave, Donna tried to stop him, and Tony pushed her up against the wall, not hard but enough to startle her. “I was in front of the door,” she says. “He moved me.” Later, when Tony went to work, she shook the incident off.

Tony slept late the next morning while Donna straightened up the kitchen and mopped the floor. Taking this burst of energy as a sure sign she was about to go into labor, Donna swung between excitement and n...