Burbidge also writes that “despite careful searching, no patient discharge instructions have been located.” This is unusual, Sheff says, since by definition, discharge instruction should be given to the patient the day they are discharged from the hospital. Not years later, or never.
Sheff says, however, there still is no excuse for not releasing documents created before and during the surgery—like the report of a cardiologist, who allegedly noted immediately after the surgery that Aruna had suffered “global heart failure.”
While Sheff cites three other cases alleging Intermountain withheld evidence in his defeated racketeering complaint, the one, he says, that draws striking parallels to his own is the 1997 Williams’ case. This case purportedly awarded plaintiffs $9.7 million, the largest medical-malpractice verdict in Utah. It was also one where key evidence was only turned over to the defense years after the alleged injury.
Shauna and Gar Williams, a Murray couple, charged that hospital staff failed to recognize a lack of amniotic fluid had allowed their unborn child, Desarae, to rest upon the umbilical cord, cutting off oxygen to her brain—a condition that calls for an immediate delivery. As a result, Desarae Williams was born a quadriplegic in need of constant care, unable to speak and having to consume her meals from a latex tube inserted into her stomach.
With only photographic stills of Shauna Williams’ ultrasound as evidence, the Williams’ attorneys had flown in expert witnesses to analyze and interpret the stills. Two weeks before the trial, however, Intermountain announced that it had just located video evidence of the ultrasound that had been considered missing for years. At that point, Intermountain told the court it needed to delay the trial so experts could examine the newly located evidence.
“Based on that [continuance request], we would have to retool all of our expert witnesses,” says James McConkie, one of the Williams’ attorneys, “which is not an inexpensive proposition,” considering added delays and costly expert-witness fees.
Intermountain’s request for a delay to the pending trial was denied by 3rd District Judge Sandra Peuler.
Intermountain’s counsel Erickson adamantly denies any kind of records manipulation:
“Intermountain responds to thousands of requests each year from patients and attorneys for medical records with little or no complaint.” Contract attorney Burbidge echoes the sentiment, arguing that clerical mistakes resulting in misplaced documents do not equal evidence tampering. Burbidge says attorneys like Sheff just lob such claims “to gain leverage in the litigation process.”
“In every instance,” writes Burbidge, “when the court has ruled on the merits of the claims, the court rejected the claims.”
But what about when the court hasn’t ruled on the claims? “In the other instances, Intermountain Healthcare was not able to fully represent its response because the matters were settled out of court,” Burbidge answers.
Proving that evidence has been withheld is no easy task. Thronson, for one, has not experienced situations of evidence being withheld in his dealings with Intermountain. He believes that proving withholding of evidence in the medical-malpractice field would likely require a whistleblower from within to produce any decisive evidence.
Such difficulties come with the terrain of representing patients in medical-malpractice cases, Thronson says. “We have to prove our entire case through [patients’] medical records, their nurses, their doctors,” he says. “Our people go in and either die or have no idea what happened to them. And so, our entire case to be proven through them and all their witnesses. It’s a difficult business.”
though the court’s never made concrete rulings on the merits of Sheff’s
failed racketeering claims, Sheff wonders if Intermountain has learned
anything since its defeat in the 1997 Williams case. “Have they learned
in its litigation that you don’t treat another human being that way,
that you don’t deny them access to medical records which are important
to understand what happened to their body? That’s basic human decency,
that’s Golden Rule stuff we all learn when we are kids,” Sheff says,
with a shake of his head. “IHC, it escapes them.”
Advocating for the public health in the legal arena is a tough game. Attorneys like Sheff, however, worry the deck is stacked too high against victims of medical negligence in a torturously long and costly legal process.
Intermountain’s Erickson, however, says that clear-cut cases of fault are resolved quickly. “Medicalmalpractice cases with merit are resolved simply and without a lot of work on the attorney’s part,” he writes.
It is not easy to track medical settlements across the United States. A 2006 study by the Harvard School of Health that followed 1,452 claims found that trials, with merit or not, from injury to settlement, averaged five years to resolve. Furthermore, “nearly 80 percent of the administrative costs of the malpractice system are tied to resolving claims that have merit.”
For the Shahs, their battle is just beginning. As they continue to gather evidence for their 3-year-old case, a trial still likely years away.
The Wilsons’ case carried a heavy toll. In their trial, they felt Intermountain attorneys tried to paint a picture of the couple as wealthy and able to easily care for Jared. Intermountain attorney Dahlquist delivered his closing argument next to an enlarged photograph of the Wilsons’ nice, suburban home. “He never referred to it,” Jerome says. “It was just staring at the jury the whole time.” (In speaking to City Weekly, Dahlquist says the photo was a legitimate trial exhibit.)
The Wilsons now are selling their “nice” home and, as of September, had to place Jared in a care facility because Jerome couldn’t keep up his productivity at work and continue to give Jared all the care he needed. The couple had hoped a judgment in their favor would allow them to hire extra help to keep Jared at home.
look forward to the day of accountability and have what we think are
these shenanigans happen to us that worked—it’s a real blow,” Jerome
says, quietly squeezing his wife’s hand. “But we’re very hopeful that
the process will work. Ultimately, we will prevail.”