Doctors' Little Helper
The last time Orpah Keaton saw her son alive, he was begging for help. Artis Graham had been hospitalized for six days following a violent altercation with the St. Paul police on October 12, 1998. Graham had led the cops on a high-speed car chase after they attempted to pull him over on suspicion of a drug violation. The 35-year-old had a long history of psychiatric and drug problems, and an IQ measured at just 76. The chase ended with Graham being beaten over the head with a flashlight after he allegedly attempted to grab an officer's gun.
That evening in the hospital, however, it was Graham's right leg that was troubling him. In the previous two days he had complained to medical staff of pain and numbness. Graham could not walk; his temperature was 101 degrees and his blood pressure was high. Despite these warning signs, according to Keaton, the nurses on duty that night dismissed Graham's leg pain as a figment of his imagination.
"It just ripped my heart out," Keaton recalls from her home in Roseville, tears welling in her eyes. "He thought that I could get them to help him and I couldn't. I asked them to help and they laughed at me. They literally laughed at me."
Later that night Artis Graham died of a heart attack precipitated by a blood clot in his right leg. "In my opinion he got no medical care," Keaton laments. "He got no medical care at all."
In 2000 Keaton filed suit charging that her son's death was the result of medical malpractice on the part of the staff at Regions Hospital. The lawsuit specifically alleged that Graham's fatal heart attack would have been prevented if he had received adequate medical care.
The justice system has been no more responsive to Keaton's allegations than the nurses who were on duty the night her son died. On October 31, the medical malpractice portion of Keaton's case, which was being heard in U.S. District Court by Judge Mark Doty, was dismissed. Despite sworn affidavits by three medical experts stating that Regions Hospital had been negligent in its care of Graham, the judge ruled that the case did not merit a trial. (A separate allegation contained in the lawsuit, that St. Paul police officers violated Graham's civil rights, is still pending before Judge Doty.)
"It was like my son had been taken again," Keaton says. "It was like the system, and myself, had failed him again. I was not able to tell his story, to tell the truth."
Keaton's story is not an anomaly. In recent years, as Minnesota courts have added interpretive detail to a vague 1986 statute aimed at eliminating nuisance medical malpractice lawsuits, they have made it increasingly difficult for plaintiffs to get their cases heard in front of juries. The number of medical malpractice cases filed in Minnesota has dropped from 237 in 1997 to 127 for the 12-month period ending in September of this year--a 46 percent decrease. "I don't know what medical malpractice case can survive," claims Keaton's attorney, Kenneth Udoibok. "I don't see how any case can go to a jury in medical malpractice."
He is not alone in criticizing the courts' interpretation of the law. "People are being re-victimized," argues Chris Messerly, a medical malpractice attorney at Robins Kaplan Miller & Ciresi. "People who are victims of medical malpractice are now victims of the judicial system in that they're deprived of their day in court."
The legal decision that provided much of the basis for dismissing the Keaton suit, Teffeteller v. University of Minnesota, was issued by the Minnesota Supreme Court in June. That suit involved the case of Thad Roddy, a 14-year-old boy who died of a morphine overdose in 1997 while being treated at the University of Minnesota Hospital. (Roddy had been hospitalized due to a bone marrow transplant undertaken to treat his leukemia.) The Supreme Court, in a 3-2 decision (two justices didn't participate in the ruling) written by Justice Edward Stringer, upheld a lower court dismissal of the suit on the grounds that Roddy's key medical expert witness had not possessed adequate credentials.
What's striking about the Teffeteller case is the pedigree of the medical expert whose testimony was rebuffed. Before retiring in 1998, Dr. William Perloff served as medical director of the University of Wisconsin Children's Hospital in Madison for 16 years. He is currently chair of the Wisconsin chapter of the National Center on Child Fatality Review. But the Minnesota Supreme Court declared his credentials inadequate because he didn't have direct practical experience with bone marrow transplants.
Perloff scoffs at this characterization of his medical background. He asserts he directly supervised the care for all bone marrow transplant patients at the Wisconsin Children's Hospital who became critically ill. "In this case my qualifications are directly applicable in training, as well as experience and expertise," says Perloff. "I'm astounded that reasonable people could doubt the applicability of my expertise to this particular case."
The other reason offered by the Supreme Court for throwing out the Teffeteller case was that Perloff's testimony failed to lay out an explicit causal link between the hospital's medical negligence and the patient's death, as is required by state law. This too appears to be based on dubious reasoning. In a sworn affidavit, Perloff stated that the medical staff at the University of Minnesota Hospital failed to diagnose the patient's problem as morphine toxicity, leading them to provide inappropriate treatment. The affidavit concludes: "It is Dr. Perloff's opinion that the departures from accepted levels of care, as above identified, were a direct cause of Thad Roddy's death."
Perloff is angry that the case was not allowed to proceed to trial. "In this case I felt there was a true injustice done," he says. "An unfortunate injustice, obviously not intentional, but still pretty grievous."
David A. Larson, a law professor at Hamline University and a former medical malpractice defense attorney, likewise believes that the Supreme Court's reasoning in the Teffeteller case is flawed--but for a different reason. Larson argues that the justices misconstrued the relevant question regarding the adequacy of Perloff's expertise. "The fact that the Supreme Court characterized it as a bone marrow transplant problem, as opposed to a morphine toxicity problem, is critical to their opinion," says Larson. "And I think that you can really argue that it's an inappropriate characterization." (Supreme Court justices are prohibited from commenting on their opinions.)
Larson believes that because of this faulty reasoning--and because the opinion was rendered by a divided, partial court--the future damage of the Teffeteller case as it relates to the adequacy of expert testimony will be limited. But Teffeteller is just one in a long line of opinions handed down by the Minnesota courts interpreting the 1986 medical malpractice law. Over the years, the courts, in their haste to get rid of frivolous cases, have steadily increased the burden that must be met by plaintiffs before getting their day in court. "If you interpret this test so restrictively, you will knock out lawsuits," says Larson. "The question is, Are you knocking out legitimate lawsuits as well as frivolous ones? That's the fear."
Rodger Hagen, an attorney with Meagher & Geer who frequently represents medical facilities accused of malpractice, concedes that it has become more difficult to get a jury trial in such cases, but he contends that legitimate complaints are still receiving a fair hearing. Udoibok thinks otherwise. He believes that the Supreme Court is engaging in "judicial activism." "The Teffeteller case is a clear example in which the justices exceeded what the legislature could have contemplated," he charges.
Udoibok took Orpah Keaton's case on a contingency basis. He estimates that he's spent $60,000 of his own money preparing for trial and is uncertain if he'll take on such cases in the future. "I don't want the insurance companies and those who think people should not have access to the courts to succeed, but I also have to evaluate what cases I take in light of economic reality," Udoibok reasons. The end result will likely be that people who cannot afford to pay for legal representation up front will find it much more difficult to find an attorney.
Orpah Keaton's lawsuit is still alive in federal court on charges of civil rights violations by the St. Paul police officers who arrested her son. In the years since his death, she has been active in publicizing cases of police brutality. She helped found the organization Communities United Against Police Brutality and currently serves as its president. Keaton is not optimistic that she'll ever get relief from the courts. Her only solace is divine justice.
"I'll have the last laugh at the end because God will be the last judge of it all," she says. "Artis is already in peace. But they're gonna have to find their peace."
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