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The Equation

Malpractice is a carefully orchestrated negotiation played out in front of a jury audience. Is it unfair? Probably. But it works because everybody knows the rules.

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Nashaba Torres and her son Taamel.  

Halfway through the first day of the trial, she sits alone in the courtroom. First the judge left, then the doctor watching from the front row, then the lawyers, until finally it was just her, a hot day outside, white sleeveless top showing off a tattoo. Her own lawyer had rushed out, work to do while the judge ate lunch, witnesses to prepare for. The judge had told the jury to take a break, had some words with the lawyers, and then it all just faded out. The lawyer had not been happy about the outfit; she thought the jury wouldn’t react well, a casual top in a stuffy courtroom, a smudged tattoo that you couldn’t really make out—and only if you asked would you know it was of the name of her dead son.

The dead son was named Tahliek. He was born on October 6, 1999, and died 30 hours later. From a human point of view, a tragedy. From a legal point of view, a nonevent. Nashaba Torres, Tahliek’s mother, had missed the deadline for filing a wrongful-death suit against the hospital, and this was probably just as well because, tragic as Tahliek’s death was, the real issue—for Torres, for her lawyers, for the hospital—was not Tahliek’s death but his twin brother Taamel’s life: wheelchair-bound, unable to talk intelligibly, and dependent for his continued survival on a pump that injects a monthly $8,000 of drugs into the base of his spine.

Tamel [sic] Dawson v. Beth Israel Medical Center went to trial in a Manhattan courtroom in September, one of thousands of malpractice suits filed in New York. Fitzgerald & Fitzgerald, the law firm that represented Nashaba Torres and her son, is familiar to many New Yorkers from its ads in the subway. This in itself tends to raise eyebrows because advertising is something that high-class lawyers just don’t do. The ads themselves are not subtle. For a while, the ads’ slogan—they are written by the firm’s founder, John Fitzgerald—was WE FIGHT FOR KIDS WITH BRAIN DAMAGE. The current ones tone it down just a bit with BABIES AND CHILDREN CAN BE INJURED BY MEDICAL MALPRACTICE. Splashed across the ads is a list of top verdicts, going up to $30 million, and across the bottom are dense footnotes qualifying the amounts. On the side, incongruously, there is a sketch of a boxing green leprechaun.

Fitzgerald & Fitzgerald—the second “Fitzgerald” was John’s wife, but she has not practiced in more than two decades—specializes in two kinds of complex cases: lead poisoning and malpractice leading to birth injuries. Over the years, John Fitzgerald has developed an eye for finding what might have gone wrong in a delivery. In his office, he keeps a foam model of the pelvic bones, and when he uses it to demonstrate the ways a baby can get stuck in delivery and the ways a doctor can get it wrong, you can almost forget that his delivery experience is confined to foam-and-cloth models. When Fitzgerald started doing “med-mal” cases in the early eighties, after a career in landlord-tenant law—“lucrative but not rewarding,” he says—firms like Fitzgerald that charged a contingency fee could take about a third of any award. Now their take is capped by law at a third of the first $250,000 and goes down to 10 percent of any amount over $1.25 million, making routine adult cases less feasible. But in the case of brain-damaged infants, the potential damages—pain and suffering, lost wages, and cost of care counted over a life span of 50, 60, or 70 years—can quickly spiral to enormous sums. For parents, contrary to ghoulish popular conception, suing on behalf of a disabled infant is not a way to get rich: The money they win goes into a trust administered for the child by a court-appointed manager. Nonetheless, the clear economic incentives (and probably Fitzgerald’s ads as well) set up the uncomfortable equation of tragedy equals cash.

Nashaba Torres gave birth to Taamel and Tahliek at 26 weeks, eight days after her last prenatal screening at Beth Israel’s obstetrical clinic. The tiny babies were delivered by C-section two and a half hours after she got to the hospital and immediately went into the intensive-care unit. It was exactly the kind of delivery that John Fitzgerald looks for—“a stormy neonatal course and a child in the nicu.” Before Torres left the hospital, a nurse had confided to her that a tissue sample had shown she was carrying a group-B strep infection. Torres had recently moved to Avenue D from Brooklyn, and was looking forward to giving birth at the nearby Beth Israel, a prestigious teaching institution and, as Torres joked, “no offense—but a white person’s hospital.” The tidbit from the nurse raised Torres’s first suspicions that she might have gotten subpar care from doctors—it looked like they’d done nothing about a potentially serious infection.


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