A chance at justice: some cases seem untouchable: brought by unsympathetic plaintiffs, ridiculed as frivolous, and faced down by a public conditioned to suspect injury claims. But sometimes all those considerations are drowned out by a cry for justice so loud it can't be ignored.

The client who wouldn't let me give up

My firm gets many calls from people who believe they are victims of medical negligence. For 23 years the one type of case that I universally rejected was the claim that medical negligence caused a postoperative infection. That is, I rejected these cases until a man named Bob walked into my office.

Over the years, hundreds of prospective clients have told me they survived major surgery only to contract an infection afterward. Most people suffer only minor complications after surgery, but some endure repeated surgeries, organ failure, septic shock, long courses of intravenous antibiotics, and disfigurement.

Some die from the infection. So why did I reject these cases? Because they seemed impossible to prove. Medical experts, while admitting that many infections are preventable, point out two things. First, it is universally understood that almost every medical procedure carries a risk of infection. Second, assuming an infection was preventable, there is no way to prove when and how it happened. Behind closed doors, experts agree that most operative wound infections are caused by failure to follow time-tested aseptic techniques. But you certainly won't find evidence of this failure in the medical record.

So I kept reluctantly saying no to deserving potential clients. Often, their stories were deeply moving, and I searched for some way to get them the justice they deserved. I called other experienced lawyers to ask if they had found a way to help these people, but none of them had. It seemed an impossible situation.

A man named Bob

This all changed the day Bob came to see me. A week after he survived emergent open-heart surgery, his chest started oozing pus. Two months and six surgeries later, he ended up in an assisted-living facility where he had to relearn how to eat and walk. Two six-week courses of antibiotics presumably got rid of the infection, but Bob was never the same. To treat the infection, surgeons had to remove his entire breastbone.

As Bob told his story, I could not help butwatch his chest heaving in and out of the deep cavity left behind. For the first time in my career, I agreed to send an infection case to an expert--not because I necessarily believed that Bob's condition was preventable, but because I had to hear from a medical authority that proper treatment could cause this horrible deformity.

To my surprise, I learned that sternum removal was not only standard but had been a lifesaving development in cardiovascular surgery. Reluctantly, I sent Bob a rejection letter. A week later, in one of the more memorable chats I have ever had with a client, Bob called to tell me he refused to let me turn him away. I explained that he couldn't force me to be his attorney, and he replied, "That's not fair. I know a lot of people this happened to."

Apparently, Bob had talked to someone else in his same situation. Purely by chance, he had fallen into conversation with a patient in the waiting room one day and discovered that they were suffering from the same problem. And the two later found out they were not alone: Several other patients said they'd suffered postsurgical problems after being treated in that hospital.

For the first time, I found myself thinking about infection cases in a different light. I wondered, what if the hospital had too many cases of infection after heart surgery? Finally, I proposed a deal: If Bob could find four other patients from the same hospital who became infected at around the same time, I would reconsider. Two weeks later, he was back with four gentlemen who all told me the same story. And, they added, they'd heard of many others.

I talked to my expert, he agreed to sign the necessary affidavit, and we filed suit. Our initial discovery sought the hospital's internal infection-control data. We soon found that we had set in motion an unexpected chain of events.

The storm of media attention that followed took me and my clients by surprise. Newspapers published derogatory stories saying we were abusing the civil justice system by filing these "frivolous" lawsuits. Doctors dismissed the patients and their families from their practices.

The judge, who seemed unimpressed with our case, ruled that the hospital's infection-control data was privileged. My clients became uneasy, but they renewed their commitment when the press attention began to generate calls from other victims of this hospital's carelessness. The case was growing, but we still lacked the necessary proof we needed to win.

A difficult decision

My expert explained that without the hospital's own data, we needed to find enough patients to show a rate of infection that exceeded national standards. Patient confidentiality and peer review privilege prevented us from discovering this information from the hospital, so we had to find it another way.

After much soul-searching, we decided that the only way to accomplish this was to advertise. It was a difficult decision but one I had to make: Without the numbers, I couldn't prove my clients' case. Without advertising, we couldn't get the numbers.

The ads received bar approval, but the newspapers resisted running them. By the time we agreed on content, the language was so diluted that we doubted the advertisements would reach our intended audience.

But they did--in a big way. The phone rang steadily. Over and over, the hospital's former heart patients and their loved ones related similar experiences.

This initial success came at a heavy price. The medical community expressed shock that lawyers, and our firm in particular, would stoop so low. They called our ads "blatant ambulance-chasing." They wrote editorials in local medical journals and complained to the bar about our "unethical" and "unsavory" actions.

People called the contact number on the ads just to criticize us for advertising. My own partners said they'd heard biting remarks from their clients and friends. They supported me, but I'm sure they didn't appreciate the criticism.

Exposing a dirty little secret

The reward for my clients was the ability to prove their cases. The numbers my experts needed were there, and they sharply criticized a heart surgery program that would tolerate such poor results.

More important, the majority of infected patients had left the hospital with no idea there was a problem. Later, when they returned for treatment of the infection, the hospital's doctors and nurses told them they were among the unlucky few who suffered this rare complication. Remarkably, some were even told that the infection was their own fault and they had brought it into the hospital with them. Postoperative infection was the hospital's "dirty little secret." Now, everyone was learning the truth.

But for a serendipitous chat between patients and family members in an ICU waiting room, the hospital's outrageous infection rate would never have come to light. More patients would have suffered from dirty surgery and consequent infection. Some would have died.

The media attention brought ridicule to my firm and our clients, but our ads not only provided needed proof, they also caused prospective patients to be more vigilant and to ask hard questions of the hospital. Many chose to go elsewhere for surgery. Advertising seemed distasteful, even repugnant, but it led to the public revelation of a serious problem. Those ads may have saved lives.

Even the judge came around, ruling that if the hospital wanted to stand on its privilege, it could not use privileged information in its defense. That ruling, combined with the hospital's realization that we could prove our case without its internal data, led to a settlement.

I had no idea what I was getting into when I said yes to that first infection case. I did not know I would represent so many clients, use advertising, endure sharp criticism of my ethics, or uncover what amounted to a major health crisis for senior citizens in my community. At the time, I was simply mesmerized by the sight of Bob's chest as he breathed.

That sight forced me to take a hard look at an infection case. Since then, I have handled another similar case to a similar conclusion. And it all started with one client who wouldn't let me give up.

C. CALVIN WARRINER III practices law with Searcy, Denney, Scarola, Barnhart & Shipley in West Palm Beach, Florida.