It's a case that just won't ever seem to end. Two trials and three trips to the state Supreme Court later, it is still going.
The story of Michelle DiLieto is every patient's worst nightmare. Diagnosed with a rare form of cancer in the mid-1990s, she had two surgeries at Yale-New Haven Hospital to remove all of her reproductive organs, only to find out later that she never actually had cancer.
To make matters worse, according to her lawyer, the Yale-New Haven doctors discovered the mistake during the second procedure but did not tell her the truth afterwards. Instead they pretended she did, in fact, have cancer at one point, and told her "we got it all."
DiLieto's first medical malpractice suit trial ended up in a hung jury, the next in a $5.2 million verdict. With years of pre-judgment interest factored in, dating from an offer of compromise made back in the '90s, that total is expected to skyrocket past $12 million.
And it could go even higher. In the most recent chapter of the long running saga, the state Supreme Court has sent the case back to a trial court to assess whether even more interest — post-verdict interest — should be awarded.
According to legal observers, the opinion could have a long-range impact on defense attorneys' strategies regarding using post-trial motions and appeals to delay payment of verdicts. Exactly how much impact will likely be determined by how much — if any — post-judgment interest is awarded.
Lawyers for DiLieto are "guardedly optimistic" that the trial judge will assess post-judgment interest at a rate of 10 percent on top of the verdict and pre-judgment interest.
"The fact of the matter is that Yale has been holding on to money which Mrs. DiLieto deserves and has deserved for a lengthy period of time and they should not be rewarded for withholding that money," said DiLieto's lawyer, Rodney S. Margol, of Margol & Margol, in Jacksonville Beach, Fla. "I think that this woman has waited 17 years for justice to be served and she received a large measure of justice in 2010 when the [state] Supreme Court ruled unanimously that the verdict that the jury returned should be affirmed, and she was awarded some pre-judgment interest."
The lawyer for the defendants, Jeffrey R. Babbin, of Wiggin and Dana in New Haven, declined comment for this article.
In 1995, DiLieto, a woman then in her early 40s from North Branford, was told she had endometrial stroma sarcoma, a rare and potentially fatal form of uterine cancer.
Her gynecologist, Scott Casper, believing that a diagnosis made by Thomas Anderson, a Waterbury Hospital pathologist, was definitive, told her that she need not bother with a second opinion, and that Peter Schwartz of Yale, one of the best gynecologists around, would manage her treatment from that point on.
DiLieto was told that the only way to attack the disease was to have a total abdominal hysterectomy to remove her uterus and then have her fallopian tubes and ovaries taken out.
Just after the uterus was removed, and while she was still under anesthesia, a pathologist would examine the uterus to determine if the cancer had spread through the uterine wall. If so, she would also have her pelvic lymph nodes removed.
Margol explained that the procedure would put his client in immediate menopause. But she was told she could not undergo hormone replacement therapies because that could increase the chances of the cancer returning.
The first portion of the procedure concluded and a pathologist studied the uterus. Schwartz was called on the telephone and asked to come to the hospital in case the pelvic lymph nodes needed to be removed. At first, the lawyer said, the gynecologist said he would be right there. But then Schwartz received another phone call and asked a first-year gynecology oncology fellow at the Yale medical school, Babak Edraki, to start without him.
"So this first-year fellow is sent down and he didn't know what the hell is going on," recalled Margol. "He starts performing pelvic lymph node surgery on her; this is before the pathologist down the hall has reported back whether the cancer spread more than halfway through the uterus."
Schwartz soon walked in the operating room, and the pathologist, speaking over an intercom, announced that not only has the cancer not spread, but that "there's no cancer here" at all, said Margol. "Schwartz then says 'Stop. Close the woman up.'"
The young doctor had already removed two lymph nodes and needed 44 staples to close incisions in her pelvis. Margol said the incisions were too deep, causing nerve damage and chronic pain. DiLieto was left unable to have children and unable to work for more than seven months. All the while she had pain that she feared was due to a recurrence of cancer, said Margol.
"These bozos were so freaked out about telling her the truth," said Margol. "If they said, 'Listen we made a mistake on the pathology. Once we got in there, we realized you never had cancer and we can put you on hormone replacement therapy,' I believe she never would've sued them. Because they lied to her, and we were able to uncover the lie, she understandably wanted them to be held accountable."
A friend of DiLieto's showed the woman's test results to a Harvard University pathologist who told them and DiLieto's primary care doctor that there never was any cancer. "When she found that out, she went nuts," said Margol.
Margol said DiLieto contacted several lawyers in the New Haven area in 1997 in hopes of filing a lawsuit but was repeatedly turned down. She then flew to Florida to meet with Margol. She had seen him on television discussing a prior case he had handled involving a woman who was incorrectly diagnosed with breast cancer. "Her reaction was that [the Connecticut lawyers] just didn't want to do battle with Yale given Yale's position in the community," said Margol.
Margol found a Connecticut lawyer to file the lawsuit, but that attorney later backed out. Then Cheshire lawyer Garrett Moore agreed to serve as local counsel. Along the way, Margol brought in well-respected Connecticut appellate attorneys William F. Gallagher and Steven D. Ecker to help with the years of appeals.
The malpractice lawsuit was filed against Anderson, the pathologist; the Yale School of Medicine; and Casper and his practice, County Obstetrics and Gynecology Group P.C.
The first trial resulted in a hung jury in 2000. The jurors went one way, and then after the fourth day of deliberations asked the judge if they could change their mind. Interestingly, Margol had just three peremptory challenges to reject potential jurors while the defense, because there were three defendants, had nine. Margol had doubts about one juror in particular, the wife of an ordained minister, but was out of challenges. She ended up being the holdout for the defense.
"She made the jury hold hands and pray for divine intervention on the fifth day of jury deliberations," said Margol, noting the jury was 5-1 at that point with regard to assigning liability to Casper and the gynecology office. That jury ultimately found Yale and Anderson not liable.
The worst-case scenario was going to trial again against Casper and his gynecology group, but Margol appealed the defense verdicts for the other two defendants to the state Supreme Court. Margol's argument was that the trial judge would not allow him to present a gynecology expert from London because he wasn't licensed to practice medicine in America. The state Supreme Court said the expert should have been allowed to testify.
A new trial took place in November 2005, with the London doctor testifying. Also importantly, a new state law at Margol's disposal gave him six peremptory challenges to the defense attorney's six challenges.
Ultimately, the second jury awarded a $5.2 million, with Casper and his practice on the hook for $2,715,000 and Yale responsible for $2,485,000.
The defendants appealed the verdict and the awarding of pre-judgment interest, but in 2010 the state Supreme Court again sided with DiLieto. After that decision, DiLieto sought post-judgment interest, dating from the 2005 trial, but a trial judge rejected the request, saying that DiLieto had failed to demonstrate that the defendants wrongfully withheld payment of the judgment.
That decision prompted the latest appeal, in which the plaintiffs argued that the trial court applied the wrong standard. The Supreme Court sided with the plaintiffs for the third time. The court said state law allows a judge to award interest when such an award would be fair and equitable. The justices added that the defendant's right to withhold payment during the appeal was irrelevant to whether the plaintiff was entitled to interest.
Margol said if his client had been paid after the jury verdict, she would have invested the money in a municipal bond or mutual fund, and would have been receiving interest for the past eight years.
Ecker, who argued the latest appeal to the state Supreme Court on DiLieto's behalf, said the opinion should impact future cases regarding post-judgment interest. "The standard until now has been very uncertain," said Ecker. "What does it mean to wrongfully hold payment of a judgment? This opinion is important I think because for the first time the Connecticut Supreme Court really has explained in exquisite detail what the considerations should be and what the equitable determination of the trial court should entail."
Ecker continued: "I think part of what's going on here is courts are telling defense lawyers, 'Listen, you can fight this thing if you want to, but don't think you're getting free use of the money. There's a cost to an unsuccessful defense.'"•