She fought the odds after a medical mistake nearly took her life and her unbelievable survival for eight years was called a miracle.
Schelley Sanders talked in a 2010 interview with SourceMedia about how she went into a Davenport hospital in 2003 for a simple procedure – to have her fallopian tubes tied. But the doctor unknowingly punctured two holes in her bladder and forever changed her life.
Sanders sued the doctor for medical errors and won a substantial settlement just before the case went to trial in 2009. The settlement was confidential but enough to pay the majority of her medical expenses, which totaled more than $1.9 million, and to provide for her two sons, Robert and Michael.
She died Aug. 11 at age 43 of ovarian cancer, which likely stemmed from having more than 100 X-rays taken since 2003, according to information provided by doctors to Davenport attorney Michael Bush, who represented Sanders in the lawsuit.
Her death came the same month a new study by the New England Journal of Medicine was released that shows how difficult it is for patients, like Sanders, to get any kind of compensation for medical errors, Tim Semelroth, a Cedar Rapids lawyer who handles malpractice cases, said.
According to the study, most malpractice claims are dropped without payment and the majority of doctors don’t make a malpractice payment in their lifetime.
This study analyzed claims filed by patients with a doctor’s insurance company from 1991 to 2005 from an unidentified major malpractice insurer, which operates in 50 states and the District of Columbia, and involved nearly 41,000 doctors. Lawsuits were not included.
In every medical specialty, at least three out of four claims didn’t lead to a payment, according to the study. In many of the specialties, about nine out of ten claims didn’t lead to a payment.
Semelroth said the study also debunks a common argument for “caps” on medical malpractice damages. Those favoring caps usually argue insurance companies are getting hit with “high payouts” to patients which will make doctors’ malpractice premiums increase, so they claim caps are needed to prevent it, he said.
Semelroth said more than one study has disputed that caps lower malpractice insurance rates. The American Association for Justice, the national trial lawyers association, conducted a study in 2009 that showed caps only benefit insurance companies, who profit in states with caps, while the doctors’ and patients’ premiums continue to increase.
Semelroth said if Iowa capped malpractice damages at $250,000 – an average quality-of-life cap in about 27 states – it wouldn’t have paid a fraction of Sanders’ medical bills and continuing care. He expects some sort of tort reform will come up in next year’s legislative session.
Brian Atchinson, president of Physician Insurers Association of America, an insurance industry trade association in Rockville, Maryland, has a different view on the New England Journal study. He said it proves what the association has claimed for years that the vast majority of claims and lawsuits brought against healthcare providers are meritless.
“Our figures show that 70 percent of the claims and suits brought against doctors do not result in payments to patients,” Atchinson said. “Furthermore, for claims resolved at verdict, the defense prevails 80 percent of the time.”
Semelroth pointed out the study doesn’t evaluate the merits of the claims that were dropped and doesn’t address lawsuits, only claims.
In 2006, researchers at Harvard University found most negligence claims were meritorious, with 97 percent of claims involving medical injury and 80 percent involving physical injuries resulted in major disability or death, Semelroth said.
It’s an “uphill battle” for injured patients to get compensation and the focus shouldn’t be on capping damages, it should be on preventing medical errors, Semelroth said.
A report in 1999 by the Institute of Medicine estimated that 98,000 Americans die as a result of a medical mistake in any given year.
Semelroth said not all medical errors are as extreme as Sanders’ case but it has to be a significant error for him or any attorney to pursue a case because of the expense involved. The average cost is $50,000 or more, which is for medical experts, not for the attorney. It takes about three years to get to the trial or settlement, possibly longer in Iowa as a result of the court budget cuts.
Bush said one of his recent cases cost about $140,000 to pursue.
“If this was Texas, we wouldn’t have been able to pursue her (Sanders) case,” Bush said. “The cap is $250,000 for non-economic loss. These malpractice cases are really heartbreaking, and most (patients) are heroes. Schelley was one of those.”
Mary Schmit, Sanders’ sister, who’s against capping damages, said her sister’s life was worth more than $250,000. Her life was ruined by a doctor’s medical error and “if mistakes are made, the doctor should pay for it,” she said.
Sanders developed sepsis – a severe infection and a flesh-eating virus after her bladder was punctured. She lapsed into a “locked in” state, losing all muscle control, for several months and then had to relearn how to walk and talk. After her rehabilitation, she was left with permanent injuries and severe chronic pain.
“She had gone through surgeries and chemo treatments for her injuries and the cancer …. so many X-rays,” Schmit said. “But Schelley refused to give up. She thought she would be OK.”
