Next time you want to complain about the jury system, just read about this case from Spain reported in today’s NY Times. Antonio Meno Ortega, a 21 year old law student from Madrid went to the hospital for minor nasal surgery. He was scheduled to spend just one overnight in the hospital and then get back on with his life. Instead, his anesthesiologist was called away to another surgery and no one was there when the oxygen tube slipped from his mouth. By the time the oxygen deprivation was caught, Antonio was permanently brain damaged and in coma. He has lived in a vegetative state ever since. That was 21 years ago.
That tragedy was compounded by another – the justice system in Spain. Medical negligence is first tried in a criminal court setting before a judge. That judge awarded the family $1.4 Million which was quickly overturned by the appellate judges. Now never mind that $1.4Million is hardly sufficient compensation for his injuries, since that reversal, the case has languished in the civil court system. The civil court judge also threw out the case, this time believing that Antonio’s state was caused when he swallowed his own vomit. Of course, allowing that to happen to a patient who was being operated on would still be medical negligence, but I guess that’s beside the point. So the family has been waiting for the Department of Justice to conduct a final review. In fact they have been waiting for over fifteen years.
And since they don’t have contingency fees in Spain, the family has been completely bankrupted by the process. Antonio’s parents have lost all their savings, their successful fruit store, their home and still owe $550,000 in legal bills. So after they lost it all, they decided to move to the steps outside the Justice Dept. and they along with Antonio, who is now 42 years old, now reside in a makeshift shelter of cardboard and plastic tarps. They have lived that way for more than 500 days, surrounded by protest signs including one that reads “Where is justice? In a coma?”
This story is like a look into the crystal ball if we continue to limit a patient’s rights to a jury or cap medical malpractice awards or get rid of contingency fee arrangements. For sure, there are reforms that can and should be put in place to protect from runaway juries and excessive verdicts; many of those restraints are already in place throughout the country. But turning to judge-only trials or caps on awards deprives injured parties from the full measure of their day in court. And relying on judges only makes the system prone to influence and corruption, as is the case in Spain.
Antonio’s story is as much about perseverance and parental love and devotion as is it is about injustice and unfairness. Their lengthy protest finally paid off. Ignacio Frade, a doctor who worked in the hospital where Antonio was injured saw the signs by the family’s tent and couldn’t believe his eyes. Dr. Frade backed the family’s version of medical negligence, swearing in an affidavit that the anesthetist had been summoned to another operating room when the oxygen supply tube came undone. Dr. Frade had assumed that the family had long since received compensation for this error, and he was stunned to come across their shelter this year while walking in Madrid. His affidavit has sparked a new review of Antonio’s case by the Justice Dept.
Let’s hope that after two decades, this family will get some relief from the court system. And let’s hope that American justice never resembles anything close to this. Here’s a link to the full story: