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2011-01-25

"Hot Coffee" Exposes How Hard Caps on Malpractice Awards Shift Burden to Taxpayers

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In our final segment featuring the explosive new documentary Hot Coffee, we speak with a family featured in the film. Lisa and Mike Gourley are the parents of twin sons Colin and Connor. Colin was born with cerebral palsy because of medical malpractice during childbirth. A Nebraska jury awarded Colin $5.6 million to cover his medical expenses. But a state-mandated cap reduced his award by 80 percent, to $1.2 million. We speak with the family about how taxpayers are now responsible for paying for Colin’s expensive healthcare costs and how mandated caps in malpractice lawsuits relieve the wrongdoer of responsibility for the damage they cause. [includes rush transcript]

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: We’re on the road in Salt Lake City — well, right near Salt Lake City, in Park City, Utah, at the headquarters of the Sundance Film Festival, bringing out independent voices of people in this country and around the world. Today we are ending up with the last family that is featured in the new documentary Hot Coffee. It weaves several stories together to tell how corporate lobbyists are working to keep citizens out of the courtroom, when they’ve been harmed. For the rest of the show, we’re joined by the Gourleys, Lisa and Mike Gourley, parents of twin sons, Colin and Connor. They’re all here with us. Colin was born with cerebral palsy because of medical malpractice during childbirth.

We thank you all for coming in. Lisa and Mike, start off by telling us, very briefly, what happened. Well, Lisa, it was 17 years ago, right?

LISA GOURLEY: Right.

AMY GOODMAN: When your twins were in utero, when you were pregnant. Explain what happened.

LISA GOURLEY: I had — I was about 36 weeks along with the boys, and I had noticed a decrease in movement. And I reported that to the doctor, and she dismissed it. She said, "You know, don’t worry about it. This is — there’s two babies in there. There’s not a lot of room to be moving around." And she elected not to do any further testing. And so, I went home, and two more — two days had passed, and the movement had become less and less, and I became — I was very concerned and went back to the — called the doctor’s office, and they scheduled me in about three hours later. And I went in and then waited in the waiting room for about another hour, and they did an ultrasound and revealed there were significant problems, that they needed to deliver them right away. And it took another — about another hour and 15 minutes to do an emergency C-section. So then, when they were born, and there were — neither one of them were breathing. They rushed them off to intensive care. And then the news came back that, you know, they had —- they were in a lot of trouble. And it was about five days later that we found out that there was severe brain damage. And then we realized, you know, all those minutes were very important, you know, during the -—

AMY GOODMAN: During your wait to have the C-section.

LISA GOURLEY: Right.

AMY GOODMAN: But before that, in those days before that —

LISA GOURLEY: Mm-hmm, even.

AMY GOODMAN: — when you had come in saying there’s some problem. I mean, just the fact that you were having twins, wouldn’t that already be a red flag that your doctor is paying very, very close attention?

LISA GOURLEY: Yes. And I had had a picture perfect pregnancy. You know, they had done an ultrasound two weeks prior, and they were — everything was completely normal. So, she, instead of — I mean, it would have taken a few minutes, and they could have done an ultrasound, and they would have determined that they needed to be delivered right away, and there wouldn’t have been any problems.

AMY GOODMAN: Now, what did you find out about this doctor, your doctor, who you had relied on?

LISA GOURLEY: We later found out —

AMY GOODMAN: What was her name?

LISA GOURLEY: Dr. Michelle Knolla. And we later found out that she had been sued before, two times before, and settled out of court. And then she was actually sued after our case.

AMY GOODMAN: As well.

LISA GOURLEY: Right.

AMY GOODMAN: Mike, weigh in here about your experience and what you went through and how you ultimately decided to go to court.

MIKE GOURLEY: Well, you know, after Colin was born, there was a lot questions, like any parent would have, of what happened, how does this happen. You know, our medical system in the U.S. is the best in the world, so — and I didn’t understand how they wouldn’t have monitored it. She was 36 weeks when she went in to that visit on Monday. That was 36 weeks. So, it was my understanding there should have been an ultrasound by standard of care that day.

So, as this happened and we were trying to piece it together and we were dealing with, you know, all the things that are going through your head of, you know, how is this going to work — I mean, how is he going to be? Is he going to live? Is he going to — you know, is he going to die? So you start — you know, as any parent, like I said, you start wondering what happened. So, and we weren’t getting any real answers. They don’t want to give you any real clear-cut answers — “Well, this is what happened.” So, we started asking questions, started getting evasive answers.

So we finally ended up, after a couple years, talking to a lawyer, and they referred us to a lawyer in Omaha that was a doctor and a lawyer. And he was able to kind of explain what really happened and put it together for us. And then it came out that there was things that they should have done that they didn’t do and that they didn’t meet the standard of care, and that was — they’re liable for that, so.

AMY GOODMAN: So you sued the doctor?

MIKE GOURLEY: We had to sue — well, when you bring a lawsuit like this, you have to sue the doctor, you have to sue their employer. If they’re part of a group, you have to sue that. You have to sue the hospital. You have to sue everybody. Otherwise, they’ll just point the blame at somebody else that’s not in the suit.

AMY GOODMAN: Did you go before a jury?

MIKE GOURLEY: Yes, yes.

LISA GOURLEY: Yes.

AMY GOODMAN: How long did the trial take?

MIKE GOURLEY: Well, it took —- it took like seven years to even get to trial, and then the trial was three weeks. And so -—

AMY GOODMAN: And what did the jury decide?

LISA GOURLEY: The jury found Dr. Knolla and her group negligent, and they awarded Colin $5 million for medical and $625,000 for pain and suffering. And in the state of Nebraska, there’s a cap. So, the cap — there was a total cap on everything, and his projected medical expenses are —- were $12.4 million. So, a cap -—

AMY GOODMAN: Wait, so the jury decides whatever they decide.

LISA GOURLEY: Right.

MIKE GOURLEY: Mm-hmm, right.

AMY GOODMAN: And then the judge just changes the decision? So why do they bring a jury into this, to begin with? Or why don’t they tell them you can’t give more than a certain amount?

MIKE GOURLEY: You know, I’m not sure why they don’t do that, but it’s part of the legal procedure, that —

AMY GOODMAN: And why does Nebraska have this cap? And how many states do?

MIKE GOURLEY: Well, this cap like we have in Nebraska, that caps both your economic and non-economic damages, there’s only four states — three that do it, totally, and Colorado kind of has a way around it if the — like in our case, if the judge would have decided in Colorado that it was — the cap was unconstitutional, he could have thrown out their cap and allowed the verdict to stand. But in other states, I think it’s — what is it? It’s Nebraska and — is it?

LISA GOURLEY: Indiana and Virginia

MIKE GOURLEY: Indiana and Virginia have hard caps.

AMY GOODMAN: So, what was it capped at?

MIKE GOURLEY: $1.25 million.

AMY GOODMAN: And there’s nothing you can do about that?

LISA GOURLEY: Well, what we did, our attorney, right after the decision came back, we went before the judge and had a hearing and said it’s unconstitutional, you know, to take away the money he needs for his medical bills. And, you know, the rest of his life, he’s never going to be able to work. And the judge came back and said it was unconstitutional to do that. It violated his right to a jury trial. And at that point, the doctor and the insurance companies appealed the case to the Nebraska Supreme Court. And two years — it took two years for the case to go and to be heard, and then it took 15 months for them to come back with a decision. And what they did is they reversed the lower court’s decision and said the cap is constitutional.

AMY GOODMAN: And they’ve upheld it.

LISA GOURLEY: And they’ve upheld it.

AMY GOODMAN: Connor, this must be tough for you. You have been there, in the pictures in Hot Coffee of you and Colin together, growing up together. What are your thoughts about what your family has gone through? You’re 17, right?

CONNOR GOURLEY: Yeah. It’s not the average life. You know, it’s helping him all the time, being there. It’s just like, why? Why, you know? If they have so much money, why can’t you just help someone out? And why do they have these for other people? I mean, people get hurt all the time, and it doesn’t affect them until they’re hurt, you know?

AMY GOODMAN: And what does it mean if there is a cap? Who ends up paying?

LISA GOURLEY: Well, what ended up happening with us, our situation, is they — Colin — we had insurance with my husband’s employer, and then he lost his job. And I was trying —- I couldn’t get Colin insurance, because they would only insure the three of us because of his pre-existing conditions and surgeries and therapies and, you know, everything. And so, he ended up on Medicaid. There’s a medically handicapped children’s waiver that helps take care of the medical and -—

AMY GOODMAN: So the taxpayer pays.

MIKE GOURLEY: Yes.

LISA GOURLEY: Basically, the taxpayers have —

AMY GOODMAN: It protects the corporations.

LISA GOURLEY: Mm-hmm.

MIKE GOURLEY: Correct, correct. And, you know, the doctors had plenty of insurance. Her group and the organization that owned her group, they had millions of dollars in insurance to cover this kind of thing. And they paid their premiums, and the insurance company is contracted, and they have an obligation to take care of these kind of things. But the tort laws just let them free —- go free and keep their money, and the taxpayers have to step up and pay for -—

AMY GOODMAN: Are you trying to change the law in Nebraska?

MIKE GOURLEY: Yeah, we’ve been lobbying for years in Nebraska, going down to our State Senate and talking to all our state senators. And, you know, they’ve kind of switched over now. We’ve had a couple of elections since then. And we’ve gone — we’ve gone back to D.C. and lobbied a little bit on the federal levels, as well, so...

AMY GOODMAN: And what does it mean for all of you to be here for this film, that brings you together with other people who are not facing the same thing, but the general idea of corporations that have taken precedence over people, who are controlling laws?

MIKE GOURLEY: Right. Well, when this happens to you, I mean, most people don’t even know what they’ve done to the civil justice system or what’s going on. They listen to the propaganda, and they think, “Oh, yeah, there’s all these people filing all these bad lawsuits.” And so, you know, when this happens to you, you realize what’s going on, and you see it. But the average person doesn’t know. We’ve been trying to get that word out forever.

AMY GOODMAN: Well, I think this movie does.

MIKE GOURLEY: It does.

AMY GOODMAN: And I thank you very much for being here with us. I want to thank Lisa and Mike Gourley, parents of twin sons, Colin and Connor. Colin born with cerebral palsy. And Colin, especially, I thank you very much for being here, and Connor, for speaking out for you and your brother.

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