Why malpractice suits in Mass. are not worth the legal fees
The Keene family’s futile battle on behalf of their disabled son shows how the system fails victims and their families.
Nobody knows the brutal frustration of suing a Massachusetts hospital for malpractice better than Robert and Kathleen Keene.
The Dover couple spent nearly a decade battling Brigham and Women’s Hospital on behalf of their son, whose neonatal care left him with severe disabilities, only to run into the same hurdle I faced: a state law limiting malpractice damages to an amount so small that it scarcely covers legal fees.
When I was considering a lawsuit against Somerville Hospital, my attorney pointed to the Keenes — and the landmark court decision against them — as a cautionary tale. Our state’s malpractice caps for hospitals are nearly impossible to overcome.
The Keenes’ case was incredibly sad: Five hours after their son Dylan was born in 1986 at the Brigham, a blood test showed he had developed an infection; subsequently, he contracted neonatal sepsis and meningitis. But no one either read or acted upon the results of that test. Untreated, Dylan suffered a seizure that damaged his brain. Today, at 32, he has the mental abilities of a 6-month-old, is a quadriplegic, blind, and a Type 1 diabetic, and eats only through a tube. It’s a miracle he even survived.
Initially, the Keenes were awarded $4.1 million in damages by a lower court. (Their case was even more stunning in that the hospital somehow lost every record related to Dylan’s treatment during the 18 hours his meningitis possibly went unchecked.) The Keenes’ legal fight was slightly different in that they were up against a nonprofit hospital, the Brigham, as opposed to a public hospital such as Somerville. A separate state law caps verdicts against nonprofit hospitals also at $100,000 – almost all of Boston’s most renowned hospitals have nonprofit status and are protected by that cap – though, unlike public hospitals, individual employees of hospitals like the Brigham can be sued with no restrictions. (The Keenes couldn’t sue any individuals because all of Dylan’s records were lost.)
The Brigham’s lawyers appealed saying the hospital should be accountable only for the maximum allowed under the charitable cap, which at the time was even lower — just $20,000. In 2003, the state’s highest court, the Massachusetts Supreme Judicial Court, sided with the hospital, throwing out the $4.1 million verdict, and ruling the hospital need pay only the $20,000.
“In the absence of an expression of legislative intent that there be exception from the charitable cap in circumstances such as these, we cannot create one,” wrote Justice John Greaney in his decision, which has been seen as applicable to the public hospital cap as well.
Justice Roderick Ireland dissented from the majority, arguing that “the charitable immunity cap is doing a disservice to the public by allowing substandard treatment practices to be rewarded by virtue of a corporate status.” He urged the state Legislature to help families such as the Keenes by eliminating the cap, but nothing ever happened.
When I read about Dylan, I couldn’t help but think about Laura. If she had survived, could her brain damage have been as severe? I wondered how the Keenes felt today, more than three decades after Brigham’s negligence destroyed their son’s life, and 15 years after our legal system left them out in the cold. I wondered if they could offer me any advice, or help me make peace with what had happened to Laura. I decided to ask.
When I reached Kathy Keene, we spoke for an hour. I told her all about my wife; she told me all about her son. I expected Kathy to be angry. I asked her, over and over, how I was supposed to deal with the injustice of Laura’s death? But she couldn’t provide those answers.
What became clear was just how much she loved her son, who lives in a $300,000-per-year facility. How that love has somehow carried her past all the pain and suffering, the disappointment and anger.
“He’s actually basically a happy kid,” she told me. “He loves wind chimes. My house is chaotic — I have six kids — he loves that. But no one really knows what he knows. He’ll smile and he’ll laugh. I think he recognizes my voice when I come in, or sometimes when I’m on the phone [with someone, it’s like he’s thinking], ‘Op, there’s my mother, ranting and raving again.’”
Kathy Keene couldn’t tell me how to accept Laura’s tragedy — maybe no one can. But she and her husband, by doing everything one could in Massachusetts to fight for justice, to the fight the system, to fight the cap, nevertheless had helped me. Because they showed me that trail goes nowhere.