Series: Patient Safety Exploring Quality of Care in the U.S.

Ernie Ciccotelli was trying to do a good deed when he donated a kidney to his brother. But within days of the surgery, his incision was oozing green fluid and his guts were rotting.

Ciccotelli said he was almost killed by an infection, and the follow-up surgeries and months of disability nearly ruined his fledgling legal practice. So he looked for a malpractice attorney who would help him file a case against the hospital.

That’s when he ran into a problem faced by many who are harmed in a medical setting: Attorneys refuse their cases, not because the harm didn’t happen but because the potential economic damages are too low.

It’s estimated that hundreds of thousands of patients a year suffer some type of preventable injury or die while undergoing medical care. For many of these patients or surviving family, a lawsuit is the only hope to recover losses, learn the truth about what happened and ensure the problem is corrected.

But lawyers may have to invest $50,000 or more to pursue a case, and they usually only get paid if they win or settle. The payout is determined largely by economic damages – lost earnings, medical bills and future costs caused by the injury. Those who don’t earn big paychecks – including children, the elderly and stay-at-home-moms – are the least likely to find an attorney, studies show.

A 2013 Emory University School of Law study found that 95 percent of patients who seek an attorney for harm suffered during medical treatment will be shut out of the legal system, primarily for economic reasons. Most attorneys would not accept a case – even one they might win – if the damages likely were less than $250,000.

“You’re basically saying for someone who doesn’t earn a lot of money, ‘It’s OK for a hospital to harm them,’” Ciccotelli said.

Ciccotelli’s experience is not uncommon. ProPublica has heard from hundreds of patients through its Patient Harm Facebook group and Patient Harm Questionnaire. The inability to find a lawyer is a common refrain.

For many cases, “the juice isn’t worth the squeeze,” said Stephen Daniels, a research professor at the American Bar Foundation, a legal research institute.

The elderly are probably affected the most, Daniels said, even when they’ve suffered an obvious medical error that led to permanent disability or death. Elderly patients are often retired, so their income is low. Plus, they usually have no dependents and Medicare picks up their medical bills.

By comparison, a 40-year-old who suffered the same type of harm but was a breadwinner for a family with three children, would be a much more attractive case, Daniels said.

Lawyers are the gatekeepers to the law,” Daniels said. “You can have all the rights in the world, but if no one will take your case, then those rights mean absolutely nothing.”

Marshall Allen, Olga Pierce, Ocupop

Ciccotelli, 58, donated his kidney in 2006 at Beth Israel Deaconess Medical Center in Boston. The transplant went off without a hitch, but his medical records show that within days he suffered nausea and intense pain in his gut, then chills and a steady greenish drainage that soaked his bandages and shirts.

He had an infection plus an additional complication: His intestines had knuckled under beneath his skin. Ten days after the transplant, doctors operated again, removing 15 inches of dying intestine from Ciccotelli’s gut and scraping out the infection. The hospital, which declined to comment for this story, didn’t charge him for the clean-up procedures.

The injury Ciccotelli sustained while being a Good Samaritan had a cascading effect on his life and finances. He had just started a new career as a lawyer, running a jack-of-all-trades shop near his home in Norwich, Vt. But because he couldn’t consistently travel to his office and hearings, he estimates he lost $45,000 in earnings.

Ciccotelli said he paid a few thousand dollars out-of-pocket traveling back and forth to the hospital for treatments. For about a year he was unable to carry any weight, and he said he still can’t exercise the way he did before the surgery, which has caused his weight to balloon.

Ciccotelli figured another lawyer would jump to take his case. He’d been fine before the surgery and clearly had suffered harm. But one by one, lawyers turned him away.

After about a half-dozen rejections, he asked one why no one would take his case. You can win, the attorney told him, but it won’t be enough money to be worth it.

As a new lawyer, Ciccotelli didn’t make much. He estimated his income would be about $41,000 that year. Because the hospital performed the repair surgeries for free, there were no big medical bills, the attorney told him. Plus, he’d be able to earn income again.

Given the potentially high costs of suing a hospital, the attorneys took a pass.

In some states, the problem is exacerbated by strict caps on damages for medical malpractice. A 2011 study in the journal Qualitative Sociology however, found that the emphasis on damages affects patients nationwide, no matter the state limits.

The study included interviews with attorneys and found that monetary damages were the most important factor in taking cases. “I turn down clearly meritorious cases all the time because I think they’re just not worth enough money,” said an attorney from Pennsylvania, which the study said did not have caps on damages.

More than 450 attorneys were surveyed for the Emory study, “Uncovering the Silent Victims of the American Medical Liability System,” which found that three out of four medical malpractice attorneys reject more than 90 percent of the cases they screen. The study found:

The study recommended reforming the system by increasing funding for legal services, so attorneys could be compensated for their time; making defendants who lose a case pay the plaintiff’s attorney fees; or sending malpractice complaints to an administrative system with neutral adjudicators and medical experts so patients wouldn’t need an attorney.

Malpractice attorneys agree that many legitimate cases aren’t pursued, though not because they’re greedy or don’t want to help.

Patrick Malone, a Washington, D.C., attorney who has represented patients in medical malpractice lawsuits since 1985, said he triages cases to focus on those that resulted in permanent harm. That’s necessary, he said, because of the time and emotional investment the patient will need to make to bring the case to trial, and because of his investment in the case.

Most cases settle, Malone said, but not usually until the last minute, years into the process. So he has to prepare the patient and himself for a long haul.

Some patients are initially outraged when he declines to take their case, but Malone said it can cost up to $20,000 just to assess a case and up to $300,000 in expenses to bring a complex case to trial. If there’s a verdict or settlement in the patient’s favor, the attorney fees eat up a third and expenses take up more.

If you spend $50,000 and only get $50,000, the lawyer gets nothing and the patient gets nothing,” he said. “Nobody wants to do that.”

Some call patients who can’t access legal system “hidden victims,” said the American Bar Foundation’s Daniels. No one knows how many there are because their cases never get a hearing.

Not all patients who suffer harm have the same experience. A small but growing movement in the medical community encourages openness with patients when they’ve suffered harm.

Doctors and hospital officials who subscribe to this philosophy, such as those at the University of Michigan Health System, the University of Illinois at Chicago Medical Center and Stanford University Medical Center say they tell patients when something went wrong and offer an apology and sometimes even compensation. They say the method is more humane and often eliminates lawsuits.

ProPublica is conducting an ongoing investigation of health care safety. Have you been harmed while undergoing medical care? Please complete our Patient Harm Questionnaire