By Anne C. Vitale
A 43-year-old woman who claimed that a botched hemorrhoid surgery left her with no control over her bowels has settled her St. Louis City case for $575,000.
Sylvia Rinebold said that the doctor who performed the surgery removed sphincter muscle in addition to hemorrhoid tissue. According to her attorney, Paul J. Passanante of St. Louis, sphincter muscle was found in pathology slides, which was indisputable evidence of negligence. But the doctor's insurance company refused to make a "reasonable" settlement offer, Passanante said, until the plaintiff's colo-rectal expert walked into the courtroom.
Passanante said he was "embarrassed" by the amount of the settlement since liability was "blatant." He said the case illustrates how non-economic damage caps can hurt plaintiffs who are severely and permanently injured, but lack big medical bills or lost wages.
"If I had tried this case, I believe that I would have won and the jury would have awarded her millions of dollars in damages," he said. But then "the judge would have been required to reduce her damages for pain and suffering to $565,000.
"The insurance carriers take the position that they waste a lot of money needlessly defending frivolous cases," Passanante said. "This case demonstrates that the insurance companies waste a lot of money defending meritorious cases."
A report on the Jan. 25 settlement in Rinebold v. Parkcrest Surgical Associates, Inc., et al., appears on Page 6. The attorney for the defendants declined to comment on the case.
Bowel Incontinence
Passanante said that in early May 2000, Rinebold felt a lump in the area of her anus. She did not know what it was and called her physician, who prescribed an ointment.
When the medication did not relieve the problem, Rinebold made an appointment with Dr. Kent Kossoy, a colo-rectal surgeon who worked as an independent contractor for Parkcrest Surgical Associates in St. Louis County. Dr. Kossoy recommended surgical removal of Grade II-III hemorrhoids, which he performed on May 8.
Following the surgery, a pathology report did not mention the presence of sphincter muscle in the tissue submitted for review, according to Passanante. However, Rinebold began experiencing problems with stool leakage that Dr. Kossoy characterized as incontinence within five weeks after surgery.
Dr. Kossoy ordered a sonogram which suggested that the internal anal sphincter appeared complete, but because of certain findings, the radiologist suggested manometric and nerve conduction tests. However, Passanante said, Dr. Kossoy did not suggest the additional testing, but instead told Rinebold that he thought her problems were psychosomatic and discharged her.
When her problems persisted, Rinebold saw a gastroenterologist who ordered the manometric study that the radiologist had recommended. The manometry, performed about five months after the surgery, showed that Rinebold had below normal squeeze tone and lack of muscle tone in a portion of her sphincter.
Second Opinion
Thereafter, Rinebold consulted a second colo-rectal surgeon, Dr. David Schuval. On his first examination, Dr. Schuval diagnosed a problem with her sphincter, Passanante said. He conducted further tests confirming one or more defects in her sphincter muscle, and ordered repeat manometry, which was also abnormal.
Based on his belief that some of Rinebold's problems might be of a gastrointestinal origin, Dr. Schuval ordered additional tests. But after an extensive series of tests, the gastroenterologist eventually recommended that Rinebold return to Dr. Schuval for her continued problems with fecal incontinence. Dr. Schuval then recommended sphincter reconstruction surgery, which he performed about 19 months after the original hemorrhoid surgery.
When Rinebold's condition still did not improve, Dr. Schuval ordered an additional test and sent her back to the gastroenterologist for her bowel problems. The testing revealed persistent defects in her anal sphincter, indicating that these defects were the source of her problems, said Passanante.
Rinebold then consulted a third colo-rectal surgeon, Dr. Ira Kodner, at Washington University. Dr. Kodner conducted additional tests showing normal squeeze and muscle tone in her sphincter, after which he concluded there was nothing he could do to help her.
Medical Negligence
In October 2003, Rinebold sued Parkcrest and Dr. Kossoy for medical negligence. Passanante retained Dr. Marvin Corman, a nationally renowned expert on colo-rectal surgery. Upon reviewing pathology slides from the hemorrhoid surgery, Dr. Corman determined that there was both internal and external sphincter muscle in the tissue that Dr. Kossoy had removed — which Dr. Corman said constituted objective evidence of negligence.
Thereafter, Passanante said he took the deposition of Dr. Kossoy, who testified that it would constitute negligence for a physician performing hemorrhoid surgery to cut or remove sphincter muscle. While taking Dr. Corman's deposition, Passanante said the defense attorney learned that his opinion was based entirely on the presence of sphincter muscle in the tissue removed. He said the defense then requested to have the tissue evaluated by a pathologist.
The defendants did not identify a liability expert, Passanante said. He said they relied on Dr. Kodner's testing that indicated normal squeeze and muscle tone to take the position that Dr. Schuval's surgery had fixed whatever problem had been caused by Dr. Kossoy's surgery. He said they also contended that Rinebold's continuing problems were due to her failure to engage in exercises, therapy and diet recommendations which may have helped her.
Passanante noted that the defense attorney could not secure settlement authority for months, but that the defendants' attorney suggested a mediation scheduled five days before trial. By the end of the day, he said the defendants' attorney indicated that it only had $350,000 in settlement authority, which Rinebold rejected.
The case proceeded to trial on Jan. 24. After jury selection, Passanante said the attorney for the defendant made a settlement offer of $500,000, which was rejected. Before trial commenced the following morning, he said the defense attorney made a settlement offer of $560,000, which was also rejected. When Dr. Corman appeared to testify, the defense made a settlement offer of $575,000.
Passanante said he had counseled Rinebold that although the jury might award her substantially more, it was likely that on a post-trial motion the court would reduce her judgment to about $600,000 — the cap plus her $22,760 in past medical expenses and her nominal lost wages and future medical expenses. Thus, he said Rinebold elected to accept the $575,000 offer, on the condition that there would be no confidentiality agreement.
'Disturbing' Negotiations
"The settlement negotiations were disturbing," Passanante said. "This was such a good case of liability that the defense could find no one to refute our objective evidence of negligence."
Passanante noted that Dr. Kossoy consented to the settlement, but his insurance carrier refused to respond to plaintiff's settlement demand. Instead, he said the insurance company made "ridiculously low" offers — namely, the $350,000 offer five days before trial.
"They justified their offer by stating that the plaintiff would not have the nerve to take the case to trial and talk about her very embarrassing injuries," he said. "The plaintiff was terrified about that, but when this was passed on to her, she gave me authority to reject the offer and prepare for trial."
Passanante said the case was "indefensible," but the insurance carrier "dared" the plaintiff to spend the time and money to take the case to trial. Between mediation and trial, he said they spent between $12,000 and $15,000 bringing in experts and expended countless hours of work.
"The insurance carrier obviously preferred to pay the defense lawyer his hourly rate rather than pay the plaintiff what she was owed," he said. "That happens all the time. How can you feel sorry for insurance companies that attempt to use intimidation to settle meritorious cases for less than what they are worth and would rather waste money on attorneys' fees rather than negotiate in good faith?"
In cases like this, Passanante suggested finding and using the best experts available.
"I used an expert with a nationwide reputation in this specialty," he said. "He testifies primarily for defendants in med-mal cases and therefore could not be labeled as a 'prostitute' by the defense.
"He is so good and so experienced in these cases that he helped me find a way to come up with objective evidence of negligence which the defense could not refute," he added. "The case settled during trial when he walked in the door. Bringing him in for trial cost approximately $10,000 but he was worth his weight in gold."
Damage Caps
Passanante voiced his frustration with "caps cases" involving the most seriously injured plaintiffs where the only question is damages. In this case, he noted that there was no issue about the seriousness of Rinebold's permanent condition of bowel incontinence.
"Her anus and rectum are like a hose without a nozzle," he said. "The stuff just comes out — when she coughs, when she sneezes, when she attempts to have sex." Based on her life expectancy, he said she will suffer with this condition for 40 more years.
"This lady's case had a maximum value of $600,000 and I think that's a disgrace," he said. "Under Bush's proposal, her case would have a maximum value of about $275,000. Whether it's $575,000 or $275,000, it's far less than a jury would say her case is worth."
On Jan. 31 a bill was filed in the Missouri House that would impose a permanent $250,000 limit on non-economic damages in medical malpractice cases. Passanante said he and his client were scheduled to testify on the bill before the House Judiciary Committee.
Passanante said he was prepared to ask: "How can anyone say that it is fair for a Legislature to pass a law which deprives all plaintiffs of the right to have a jury of their peers set their damages? How can the Legislature justify taking this decision away from the juries, which consist of the people that elected them? How can the Legislature even think about passing laws which affect all cases, instead of leaving the decision to a jury which knows the evidence applicable to that particular case?"
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February 14, 2005
