LOS GATOS -- In her eyes, pools of tears come and go like slides from a carousel of Kodachrome memories.
Adam Glover, her only child, exists now only in photographs that she carries in a beige folder. He is reading a Harry Potter book. He is posing with the family dog. He is a 12-year-old on a father-son Yosemite rock-climbing trip, smiling a few days before dying inexplicably at a Modesto hospital.
Sarah Hitchcock-Glover wants to know more about what events led to this emptiness swallowing her life. She wants to ask questions and be met by more than silence. But due to a decades-old $250,000 cap on medical damage awards -- which California voters may weigh in on -- she could not get anyone to follow through on her case. So the Santa Cruz Mountains resident is trying to get the law changed.
"It's about someone demeaning or minimizing the value of a life, and the value of our health care system, by not investigating the wrongs that go on over and over and over," Hitchcock-Glover said. "I don't find it offensive that someone thinks my son's life is only worth $250,000. I find it offensive that people -- these insurance companies -- have prevented these things from being disclosed."
It was springtime in Yosemite, when snow still covers the high peaks and wildflowers carpet the valley floor. It is a good time for hiking, rock-climbing and biking, and in those pictures, Glover, wearing a tie-dye T-shirt and sweats, looks on top of the world.
But during the day, Glover was forced off his bike by a bad stomach ache and vomiting. A Yosemite clinic doctor recommended he go to a nearby hospital in Modesto, where doctors performed an emergency appendectomy.
But Hitchcock-Glover said he son's appendix was relatively normal. What wasn't normal was the 2 liters of fluid a surgeon withdrew from his abdominal cavity, or what happened in the post-operative recovery room.
"There was something else going on, which was never investigated," Hitchcock-Glover said. "Throughout the day, in hindsight, it was obvious that he was on a perpetual, progressive trail of what medical professionals who have reviewed his chart tell us was a classic case of hypovolemic shock."
The boy couldn't urinate. His stomach was distended. His heart rate was up. An oxygen monitor went haywire, only to be replaced by another, which also went off and was removed. Coming off a long shift, the doctor appears to have never consulted a pediatrician, or ordered further tests, Hitchcock-Glover said, even though she and her husband prodded nurses to call her at home.
In a hallway, 18 hours after surgery, Glover collapsed. He died after eight hours on life-support.
"Kids crash fast," Hitchcock-Glover said.
In grief, Hitchcock-Glover and her husband began to believe that signs were missed. An oncology nurse, Hitchcock-Glover showed her son's chart to prominent Bay Area pediatricians and doctor friends.
"We are not litigious people. I can't stand anyone choosing to go that route. I fought it for the longest time," Hitchcock-Glover said.
But they couldn't get anyone from the hospital to talk to them. Wanting answers, she began looking for lawyers.
That's when she learned about the state's Medical Injury Compensation Reform Act, signed into law in 1975 by Gov. Jerry Brown. The law did a number of things, including standardizing rates for plaintiff's lawyer and installing a $250,000 cap on "noneconomic damages," which has been unchanged since.
Critics of the law say that minimized the value of cases involving people with no source of income -- the elderly, children and stay-at-home parents. With medical cases expensive to prosecute, they say the 38-year-old cap now acts as a barrier to justice, with victims unable to convince lawyers to risk their own money on experts, subpoenas and evidence without the chance for a bigger award.
"We wanted answers. We wanted full disclosure so that lessons could be learned. We were convinced things had been missed and to this day, five years later, not one lesson has been learned because it has been swept under the rug," said Hitchcock-Glover, who has joined a coalition of consumer advocates, patients' rights groups and plaintiff's lawyers called 38 is Too Late.
California's cap now counts among a handful of other states as the lowest in the country: Texas, Wisconsin, Florida all set the bar higher. Other states that passed caps during the mid-1970s malpractice rate crisis, such as New Hampshire, have long since raised them.
Driven largely by powerful trail lawyers, there have been unsuccessful efforts to change the Medical Injury Compensation Reform Act. A Danville father, Bob Pack -- who lost two children and unborn twins to a drugged driver who turned out to be a doctor-shopping pill-popper -- and the group Consumer Watchdog are pushing a ballot initiative to raise the cap, winning approval last week to circulate petitions for a possible 2015 measure.
PROTECTING THE CAP
The industry is gearing up for a major fight. Last month, physicians, hospital and insurance groups dumped $31.5 million into a political action committee, Patients and Providers to Protect Access and Contain Health Costs, to combat the initiative.
Three of the eight donors -- The Doctors Co., Medical Insurance Exchange and NORCAL Mutual Insurance Co. -- are insurance groups that recently agreed to across-the-board malpractice premium cuts after California Insurance Commissioner Dave Jones found they were charging excessive rates.
The California Medical Association is spearheading hundreds of groups, which have spent years fighting efforts to raise the cap. They say it would increase malpractice insurance costs and accelerate the rising costs of health care, threaten community clinics and other providers operating on tight margins, and decrease access to care.
They also say the Medical Injury Compensation Reform Act is not keeping legitimate claims out of court. MICRA, as it is known, did not cap awards for medical costs or lost wages or, in the rare event they are awarded, punitive damages. And California Medical Association President Dr. Paul Phinney, a Sacramento pediatrician, said overall malpractice awards have increased annually, outpacing the rate of inflation.
"The trial attorneys would like us to focus on the noneconomic cap, but that's really misleading," Phinney said.
Phinney believes raising MICRA's cap would increase the cost of malpractice insurance rates, saying California enjoys far lower rates than other state without a cap. A 2007 National Institutes of Health review of studies found several showing a correlation between caps and lower premiums, but other studies have suggested caps actually lead to increased damage awards.
Another argument , that it would lead to more frivolous tests and specialist referrals, is harder to pin down. However, a 2005 survey of more than 800 Pennsylvania doctors -- where there are no liability caps -- found that 93 percent said they practiced so-called defensive medicine.
Politically, the issue seems to be a hot potato. In August, Assembly Speaker John Perez was critical of the initiative effort, saying it undermines efforts to change MICRA -- even though the issue has been floating around Sacramento for years without legislative action.
"(I)f nothing else, it was a strategic error on their part in terms of trying to get a legislative fix where everybody could agree, and I think it really sets us up for an ugly ballot fight next year," Perez said during a press conference.
That is something Hitchcock-Glover wants to avoid, fearing getting dragged into a well-funded campaign that includes industry mudslinging. Instead, she said the Legislature created the problem, and the Legislature should fix it.
That sentiment is shared by the Consumer Attorneys of California, which has no official position on the ballot initiative but has asked the Legislature to take action.
"Essentially having this cap puts the value of some lives "... worth no more than $250,000," Consumer Attorneys of California spokesman J.G. Preston said. "We don't think that's much incentive for medical providers to be careful about their medical care because in that world, that's hardly a slap on the wrist."
Hitchcock-Glover has met with members of the local delegation, but a representative of Sen. Bill Monning, D-Carmel, was noncommittal about the issue, saying no bill was before the Legislature. Assemblymember Mark Stone, D-Scotts Valley, also said he had not made up his mind.
But Senate President Pro Tem Darrell Steinberg has sought action, saying the cap could be raised while balancing protections for doctors and hospitals. Increasing the cap would alter the risk-reward calculation for lawyers, and a Steinberg spokesman would like to see the two sides reach a "reasonable" compromise.
"This is not an issue that's going to go away," Steinberg's communications director Mark Hedlund said.
But Phinney said his group opposes any bump.
"We think that MICRA has worked very well as structured and it ought to be left alone," Phinney said.
In 1993, Brown expressed regrets about the Medical Injury Compensation Reform Act, saying it had an "arbitrary and cruel effect" on malpractice victims. Preston said he believed the governor would sign a bill raising the cap. Trial lawyers have suggested using the original $250,000 but adjusting for inflation, putting a new cap at just more than $1 million.
"I think he recognizes that this should be modernized and brought into the 21st century," Preston said. "This is an important issue to a group of Californians that have gone through a lot of pain and deserve more than having a door slammed in their face."
But many more than doctors oppose Medical Injury Compensation Reform Act changes. Calling itself Californians Allied for Patient Protection, hundreds of community clinics -- including Watsonville-based Salud Para la Gente and Planned Parenthood, which has been an outspoken supporter of the law -- as well as unions, large county health departments and local governments have joined forces to oppose a change.
"Health care costs hit counties in two ways -- some counties own and operate hospitals and clinics that serve the public directly and others contract for these services, and counties provide health care for their own employees," said Gregg Fishman, a spokesman for the California State Association of Counties. "CSAC supports MICRA because it reduces the cost of providing these services and makes health care more accessible to more people."
Hitchcock-Glover disagrees with the arguments from health care providers, saying it was 1988's Prop 103, not 1975's MICRA, that brought down malpractice rates. And last year the state did conclude that insurers were overcharging doctors and hospitals.
Hitchcock-Glover went to several lawyers. One eventually took the case after looking at the facts, but it was dropped after dragging on too long. The hospital never charged the family, and the doctor's lawyers offered a $29,999 settlement, she said, an amount that would have kept the settlement from public disclosure.
The grieving parents rejected it, and Hitchcock-Glover began her journey to get the law changed.
Years after their son's death, Hitchcock-Glover and husband Fred are struggling. She works at an outdoor preschool her son once attended as they fight to keep their home in the Santa Cruz Mountains. Hitchcock-Glover went through years of grief counseling.
"I'm still climbing up the other end of that big black hole," Hitchcock-Glover said.
And five years later, she still doesn't know what took her son's life.
Follow Sentinel reporter Jason Hoppin at Twitter.com/scnewsdude
©2013 the Santa Cruz Sentinel (Scotts Valley, Calif.)
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