Thursday, July 1, 2010


Then one day in February, six months after all the terrible events and one month after I had met with Dr. Berlin and Amy Brown, I was browsing in Barnes and Noble Bookstore. Idly I picked up the current issue of Boston Magazine, which had a cover picture of an actress in medical scrubs. The magazine itself contained a list of the best physicians in Boston.

I started to leaf through and there, in one heart-stopping moment, I saw a headshot of Nicole, lined up with twenty-four other physicians. I could not believe my eyes and had to keep checking out her picture to make certain that I was seeing correctly. When I had finally absorbed the fact that it was indeed Nicole who was being accorded the 'best" honor in oncology, I became completely enraged and I felt totally betrayed by the hospital.

As I read further, I found out that this list had been compiled by two Harvard-affiliated doctors, with no input from patients. Moreover, I was certain that Dan or Dr. Berlin or someone else at the hospital had submitted Nicole's name. Talk about a biased list of the best, I thought.

Said one of the listmakers, "The hardest part is narrowing it down, especially in Boston." Well, I thought, you certainly can cut your list by one! The article was headlined: "...with more than 250 doctors in 30 fields, all of whom are accepting patients, we bet you'll find someone here who can make it better. You're in good hands!"

My anger knew no bounds. How could Dr. Berlin and Amy, just a few weeks before, look me straight in the eye and tell me that Nicole had been disciplined by the Peer Review Committee when they had to have known about this article? Didn't they realize that I would see it and find out that they had lied to me? Were they so arrogant that they just did not care at all?

Finally, it was blatantly obvious to me that these medical people - Dan, Dr. Berlin, Amy, the Peer Review Committee, as well as many others who had been involved in my case, believed that they could do and say whatever they wanted to a patient because they were accountable to no one.

What a phony, hypocritical group at that Harvard-teaching hospital, I raged to myself. There has to be something that I can do to make them take the consequences for their egregious behavior. And so, I left the bookstore, more determined than ever, to let people know about the risks you take every time you enter Medicaland.

Before I took further steps, I talked to many of my friends and family. Everyone now agreed that I had been betrayed and it was time to take action. But what to do? Then it became clear to me: I had to instigate a lawsuit. Nothing else was going to get the attention of Dan and his cohorts. And, so, I decided to find a good medical malpractice attorney.

First I was recommended to James Whitaker, very well-known in this specialty. We chatted for some time on the phone and then he asked, "Ellen, do you feel ok now?" I said that physically I was in good health, but that emotionally, I was overwrought, afraid that my cancer would return. I told him that I thought this reaction was a direct result of the mental pain and suffering that Nicole had caused me.

James then informed me that I did not have a case because I was physically well. I learned from him that medical malpractice does not include mental anguish, only physical harm. Moreover, a patient has to be in very bad shape for a lawyer to take on his or her case. In essence, what he was saying to me was that only if you are maimed or close to death or dead can you get a court hearing.

Shocked, I decided to check with other attorneys to make certain that James had been correct. Thus, I called three other experts in medical malpractice and they told me the same thing. So, it was true after all: the medical establishment can hurt you horribly, but it is almost impossible to bring a winnable case against it. I was astounded and did not know what to do next.

Then I met Roberta Wilderstein, another lawyer who specialized in medical malpractice. She advised me that I did not have to sue to get satisfaction. Instead, she told me to bring my case before Nicole's risk management company. It would take into account all the particulars, and, perhaps, award me a financial settlement. This action would send the right signals to the hospital, she said.

In response to her suggestion, I said that I found it hard to believe that Nicole's risk management company would take my side since, if it did, it would have to pay me a substantial amount of money. However, Roberta insisted that it was not uncommon for these companies to make such cash payments.

Before going this route, though, I decided to register a complaint with the Mass. Board of Registration in Medicine. It seemed to me that my top priority was to make my case public so that Nicole's patients, as well as those who were indecisive about using her, would have the necessary information with which to intelligently evaluate her.

Therefore, I got in touch with Janice Black, the Consumer Protection Coordinator. She sent me a form to complete, which included sixteen possible reasons for my complaint. I checked off "Substandard Medical Care". Then I sent her the same acount that I had written for the hospital. I knew that this process would take a long time, but I felt good that I had started it.

Next I contacted Pauline Hogan, the General Claims Adjuster of Nicole's risk management company. She sent me a HIPAA form for me to execute for her. She told me that once she received it, she would obtain the necessary records from the hospital to "evaluate the matter." She would also "obtain independent expert reviews to assist our evaluation of this case."

When I realized that this decision would be based on hospital records and doctor input, I was skeptical that it would be in my favor. As I saw it, the medical establishment at the hospital had closed ranks around Nicole and its information would protect her.

I also forwarded a complaint against Nicole to the Joint Commission on Accreditation of Healthcare Organizations. I knew from its responding letter that it would do very little to discipline Nicole, but I believed that it was important that all the proper disciplinary groups be aware of my case.

In any event, the Commission wrote: "The JC gives serious consideration to all issues that may reflect noncompliance with JC standards...We have updated our databases for this organization to reflect your concerns. We will continue to monitor the organization for patterns of care over time in the area of your concerns." In layman's terms, the JC was going to do nothing, but at least it had a record in its files.

It took months before I heard from the Mass. Board or the risk management company. Finally, in about eight weeks, I received a response from the Mass. Board of Registration in Medicine. It included a copy of Nicole's answer to my complaint. This document stunned me because it contained at least thirteen falsehoods about me.

It was incredible to me that a person who had taken the Hippocratic Oath could be such a liar and a fraud. Therefore, I called Janice at the Board and told her of my dismay. She said that she was glad that I had gotten in touch with her because the Board was ready to review my case. However, it would wait until I sent them a rebuttal, which I wrote immediately.

In this document, I said, "I want to make the reason for this complaint clear to the Board. As a person who survived cancer, I know first-hand the importance of competency, kindness and compassion in one's oncologist. In my case, I experienced a grave psychological trauma at my oncologist's hands and I want to prevent this terrible situation from ever happening again to another patient and another patient's family." I then took apart Nicole's responses to my complaint, showing that her statements were lies.

So, now I waited and waited for the Board's decision. I knew that there were three ways that they could go: they could dismiss the case; they could set up a file on Nicole; or they could recommend the "initiation of formal disciplinary action."

Finally, I received their answer and I was very disappointed. They wrote: "After a thorough review of this evidence, the Committee has determined that the complaint and the physician's response should be placed in the permanent record of the physician."

After everything that I had gone through with her, I was hoping that the Board, at the very leasrt, would monitor Nicole's behavior. In my view, it was good that it had set up a record on her, but this measure would have little effect on her practice of medicine. Thus, once again I learned that it is extremely difficult to go up against the medical establishment.

Now I held out hope that the risk management company would do the right thing. Even though I had always been doubtful that it would penalize Nicole, until I got its answer I thought there was a chance for me.

At last I received a letter. It said: "We have completed our evaluation of the claim you presented...Through our expert review process, it has been determined that all of the care provided to you by N and all members of the health care staff...was within the Standard of Care. Therefore, we will not be extending a settlement offer to you."

I felt as if I had been punched in the stomach. How could this organization have the unmitigated gall to tell me that Nicole and her colleagues had acted within the "Standard of Care"? As I said to a friend, "If she, who could have killed me with her words, is providing good health care, then I shudder to think what bad health care is!" Obviously, there was no Standard of Care in medicine. So long as a doctor does not maim or kill you, then he or she is practicing "good medicine" and I sunk into a deep depression, feeling very lost and alone.

I was still not prepared to give up the fight, but there did not seem to be anyone powerful enough in my corner. Of course, I was later to learn that that was not true, but it took me about seven months to regroup and to link up with someone who could help me. Only then was I finally able to show Nicole and her cohorts that I was not going away; that I was lurking in the background; and even though there would be no lawsuit or a financial settlement, I was determined to make them uncomfortable for what they had done to me.


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