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A malpractice verdict's human dimension

Award was large, but life is upended

By Raja Mishra, Globe Staff, 5/14/2003

ROTON -- The millions help, but Bobbie-Jo Rivard would give it all away in seconds to walk her son Michael to school, to toss him a ball, help him with homework, or tuck him into bed at night. Or to simply hear him call for his mother. 

None of that will happen. Six years ago, she went into a Worcester hospital ready to give birth. Seven days later, after questionable medical care, her son entered the world barely clinging to life, his brain and nervous system permanently crippled.

The Rivard family last year won the largest medical malpractice verdict in recent state history, $21.4 million, after a Suffolk County jury blamed three doctors for Michael's profound disabilities. Now 6, he cannot talk, eat or breathe through his mouth. He can't walk or stand or control his limbs. He has the mind of a 1-year-old, with little chance of progress.

As the national debate over medical malpractice intensifies, the handful of cases like Michael Rivard's have become a flashpoint for doctors, lawyers, and politicians -- pain-and-suffering payouts so massive they inflate malpractice insurance costs for all doctors and strain the health care system.

''These small number of cases involve truly tragic problems, but you have to step back from the emotions,'' said Dr. Thomas Sullivan, president of the Masachusetts Medical Society, which is lobbying to put a limit on malpractice payouts for pain and suffering.

But the details of Michael Rivard's life also illustrate why malpractice reform is one of the most emotionally charged and intractable issues in medicine. Tales of good obstetricians driven out of the field by ballooning insurance premiums draw public sympathy, but so too do episodes in which patients are forever crippled because of doctors' carelessness or negligence.

''There's no price in the world worth what I have to go through,'' said Rivard, 29, a slight woman with close-cropped hair who lives in Barre with her husband, Jeffrey. ''Not only did they take our son away, they took our life away.''

Politicians and policy makers are caught in the middle, forced to weigh the broad interests of the medical profession against the intense and usually prolonged suffering of a few patients and their families.

The details of the Rivard case are contained in thousands of pages kept in a Boston courthouse, which document seven days in December 1996 that forever altered the lives of a young couple just starting a family.

On Dec. 23, Bobbie-Jo Rivard entered Memorial Hospital, now called UMass Memorial Medical Center, almost two weeks past her due date, not an uncommon delay in childbirth. For two days, doctors gave her Pitocin, a hormone-based drug that stimulates uterine contractions, hoping to induce birth, according to court papers. She requested a caesarean section but doctors sent her home instead, she said.

''I did have a feeling something was wrong'' with being so far overdue, said Bobbie-Jo Rivard. ''I begged and pleaded for a C-section.''

She returned the next day, again requesting a caesarean section, and was again told to take Pitocin and wait. At this point, her lawyers later argued, her doctors should have realized the Pitocin had failed to work, and should have begun considering other options, including a C-section. By Dec. 29, she was still in the hospital and had not yet delivered the baby. Even the nurses were getting worried, according to court papers.

On Dec. 30, the sixth day of induction, Michael's heart rate dropped precipitously inside the womb. What had happened, an analysis by the Rivards' legal team later showed, is that repeated Pitocin dosing disrupted the flow of oxygen to his body. The drug, as it stimulates contractions, briefly interrupts blood flow to the baby, usually without consequence.

But in Michael's case the interruptions were numeous enough to deprive his body of oxygen, causing intensive damage to his brain and nervous system, the analysis concluded.

Doctors quickly initiated a C-section. But the uterus had constricted so tightly around Michael that a nurse had to ram her hands into Bobbie-Jo's vagina to push the baby up through the surgical opening on her abdomen. It took 18 minutes for Michael to draw a breath on his own, according to court papers. The damage was done.

Unknown to the Rivards, the hospital at the time was seeking to reduce its rates of costly and risky C-sections, not an unheard-of hospital practice at the time. A concrete link between the policy and the decisions made during Michael's delivery was never established, although it became a major point raised by the Rivards' legal team during the trial.

''There wasn't a policy per se,'' said Dr. Bruce Meyer, UMass Memorial's obstetrician and gynecologist in-chief, who explained that administrators did, during much of the 1990s, encourage doctors to carefully scrutinize the medical merits of every C-section request.

The Rivards' lawyers ultimately decided to sue three doctors, but not the hospital itself. Nonprofit hospitals in Massachusetts are protected by a $20,000 cap on lawsuits, which means trial lawyers typically target individual doctors to get large payouts.

The verdict came in February 2002, five years after Michael's birth. The jury, using estimates provided by lawyers, awarded the family $8.5 million to compensate for their financial loss -- roughly $1 million for Michael's past medical costs, $6 million for future medical costs and $1.5 million for a lifetime of lost earning potential. On top of that, the jury added about $13 million for the family's pain and suffering, bringing the total award to $21.4 million.

It was the largest malpractice verdict in Massachusetts since 1995, and one of $26 million-plus malpractice verdicts in 2002, according to the Massachusetts Medical Society.

Within months of the Rivard decision, medical malpractice exploded onto the national radar screen when doctors' groups decided to make the issue their central lobbying focus. In January, President Bush began pushing for a $250,000 cap on pain-and-suffering awards.

Massachusetts already limits pain-and-suffering awards at $500,000, but the law allows juries to exceed it when they see fit, as in the Rivard case. A bill now under consideration by lawmakers on Beacon Hill, authored by the Massachusetts Medical Society, would eliminate this exception.

Under this cap, the Rivards would have still received the $8.5 million for their economic losses. But the pain-and-suffering award issued by the jury -- $2 million for Michael's pain and $11 million for his parents' anguish -- would be limited to $500,000.

''It's not just an issue of what they need to care for Michael,'' said Peter E. Heppner, the Rivards' attorney. ''In our legal system you have a right to be compensated for your pain and suffering. To suggest the Rivards only should get $500,000 [for pain and suffering] is an insult. Look what they've gone through.''

Jeffrey Rivard, 32, a taciturn man with a throaty drawl, said of the $500,000 cap proposal, simply: ''I'm disgusted. It's unacceptable.''

Today, Michael Rivard suffers from cerebral palsy, profound retardation, and seizures. His home now is the Children's Extended Care Center in Groton, a 71-bed nursing home that cares for disabled people with mental abilities of a 1 1/2-year-old or younger. There, about 160 staff members attend to 70 residents.

Michael is not expected to live past 40, though the center's longtime head nurse and soon-to-be director, Holly Jarek, said, ''We can't really say exactly at this point.''

The verdict money now pays for their son's care. It also is helping them build an addition to their Barre house specially equipped for Michael's rare visits. But otherwise, they say they have no extravagant plans for the money. ''It gives Michael everything he needs. It'll help him for his life,'' said his mother.

She has done all she can to give her son a good life. Though she tries, she cannot ignore the loss.

''My son basically died inside of me,'' she said

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Raja Mishra can be reached at rmishra@globe.com.

This story ran on page A1 of the Boston Globe on 5/14/2003.
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