From an outsider’s perspective, though, it didn’t look good for Taamel’s case. Berck was a doctor who’d seen Torres on some early visits and did in fact boast a résumé that stretched neatly from Yale to Harvard Medical School to a residency at the famous Massachusetts General to a faculty appointment at the Albert Einstein College of Medicine. He had appeared not only qualified but exceedingly sensible. Instead of evading Nassau’s questions, he’d managed to neatly tie up the hospital’s loose ends, gesturing with his hands and a paper cup to show how small contradictions in the records—a cervical canal marked in one report as closed, in another as slightly dilated—were just a routine result of different doctors using a slightly different degree of touch and feel.
As the trial progressed, Nassau worried increasingly about the jury. Only one member had ever been pregnant. “If [only] I had anyone on that jury that ever had a complicated pregnancy, anyone who’d had a C-section,” Nassau says. “All these men on the jury thought they knew what an obstetrician was, and the 27-year-old women are still partying every night. Did they have any clue as to what I was talking about? No.”
Melnick had a different kind of problem, a gambler’s problem. He was highly confident that he would win the case. Still, if Melnick didn’t win, a verdict could run $10 million or more. So the hospital’s insurance managers (Beth Israel is part of a self-insured pool of nonprofit hospitals) had to make a decision not only about whether they were likely to win, but what the odds were. Nassau, from her own experience on the defense side, gets it down to a simple process: “If there might be a $10 million penalty and they think they have a 50 percent chance of winning, offer $5 million.”
The evening before the jury was to be given its charge, the insurance company called Nassau to offer a settlement of $1.5 million. It was, for this kind of case, a pretty good outcome for the hospital. Under the circumstances, it was also a good figure for the plaintiff. Nassau and Torres accepted the offer.
The settlement naturally will confirm many people’s feelings about malpractice law. John Fitzgerald says that he asks for medical records in only one in 50 to 100 inquiries that come into the firm’s referral line. But in the cases in which the firm does go to the step of getting medical records, it files suit in fully half. The math here is clear: Simply delivering a child who is seriously premature and seeing its patient go to a law firm like Fitzgerald’s means that a hospital is already facing a 50-50 chance of finding itself in a position in which a $1.5 million settlement is a pretty good outcome for the defense.
Whatever Taamel’s real disabilities, more than a few readers will agree with Janet Stein that it’s “sad and disappointing and disheartening that the system uses this to compensate the family for a bad situation.” And the natural impulse is to blame the lawyers, people like Randy Nassau and John Fitzgerald, whose firm earned $295,000 for its work.
But Nassau takes seriously the idea that she is an advocate for exactly the people the medical system tends to ignore. For Nassau, as she and Melnick were moving toward the dollar figure that was their center of gravity, the system was working. “When people go to private physicians, when they’re monitored, things go well,” she maintains. It’s when they go to a clinic and see all these different doctors that this happens.
For the lawyers, as much as both of them would have loved—great records be damned—to get to a verdict and find out how it ended, a trial is ultimately not about getting to a satisfying conclusion as to who was right but about getting to a number that both sides can live with.
Torres got just under $1.1 million in trust for her son, but the money, while welcome, is not her most important reward from the trial. We met in a restaurant on the Lower East Side after the trial, and Torres told me that the trial gave her answers about why her son was born the way he is. It seemed a startling conclusion to come to, since the trial I saw tended to show the opposite. But it was understandable.
“For a long time, I blamed myself [for Taamel’s condition],” Torres told me. “For a long time, I blamed myself that it was my fault that Taamel was that way, it was my fault that Tahliek died. For a long time.” The ritual of the trial let her transfer the guilt—not because of the evidence presented but in spite of it.