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"Fascinating" Stephen S. Hall. writer, N.Y.Times magazine. "Hard to put down." A.C.P.A., American Chronic Pain Association.

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Saturday, July 16, 2011

Book Banned, Pt. 3: I had to sue my father.

(The facial pain association (formerly the trigeminal neuralgia association) has yet to respond to my 3 emails asking why I cannot post to their FB wall. Another person notified me they 'liked' the page and posted about my book. Their post was removed. The only conclusion is that they are afraid their members will find out about my book. None of what I have been writing about, re: the medical malpractice, is in the book. Here is the beginning of the story:

I had to sue the first doctor who left me with the numb face, mouth, etc. After Dr. Jannetta paralyzed my face I read my chart. The record included the defensive presurgical facial nerve test which showed injury to my facial nerve. The physical proof was the loss of taste and feeling in the left side of my mouth. That happened after the rhizolysis procedure. Both, Drs. Jannetta and Martinez, appeared to have committed malpractice.

The next step was to find an attorney. 'Kate', Catherine Miraglia Lecky, agreed to take the case. She befriended me, and assured me she was dedicated to 'getting' both these doctors for what they had done to me. Unfortunately she did not get the experts she said she would nor send out interrogatories (questions to other side that they must answer within a certain period of time.) or take depositions despite assuring me again and again that she was doing the work. (I was in NYC, she was in Pa. so I had to rely on her word.)

The case was on contingency, her fee was 33 1/3 of any award or settlement. All out of pocket costs would be borne by me. My father signed an agreement stating he would pay them. She charged for one medical evaluation (The written report states that the chart did not contain enough information to make a decision.), phone calls, copying charges, time reviewing my hospital records, etc. It was running into the low thousands. My father paid her by check.

For some unknow reason he decided the defendant, Dr. Lucas Martinez, had offered $10,000 to settle the case. That never happened. Nevertheless he decided, because I would not accept this imagined offer, he would no longer pay Kate. Without funding she could not go forward, so the case stalled.

I had to sue my father. I had no choice.

This was not something I wanted to do but he left me with no other option. No matter the proof of the malpractice he refused to change his mind. (I think he did not want me to have money. If I did he could not continue to have control over me as he did once I became disabled. He was paying my rent and medical insurance (thankfully and I appreciated it very very much, but it allowed him control. At one point he did not want me seeing a particular surgeon. I did and for three months he withheld the rent. Luckily the landlord and I got along and he let me stay until my father finally started paying it again.)

He and Dr. Jannetta have something in common. My father lied on the stand. And he, too, got away with it.

The case was heard in small claims court. No lawyers, I was up first. I asked my father "Did you agree to pay out of pocket costs to Kate Lecky? "No." he said.

I took out a cancelled check, signed by him, made out to Kate. "Did you pay any money to Kate?' I showed the check to him and to the judge. He looked at it. "I never paid Kate Lecky."

I had the check, complete irrefutable proof. It did not matter, the judge ruled against me.

I told Kate to wait for him to pay before taking any more action. By that point the amount owed was a few thousand. Anything mmore she did, deposing people or finding a reliable expert for instance, would be very expensive.

I tried, again, to work it out with my father. I warned him, hoping to get him to honor his word, that I would be taking it to the county court. He would not budge.

In taking the time to try and work it out I missed the appeal deadline.

I am not a lawyer but was able to write what is called an 'appeal nunc pro tunc'. I asked the court to allow the case to go forward despite missing the deadline. The court ruled in my favor. My father immediately backed down. A check was sent to Kate. As soon as she got it she promised to get the case back on track.

Problem was, I trusted that she had been doing the least of what is required by an attorney even when they are merely waiting.

There is a legal publication called THE INTELLIGENCER. A lawyer needs to check it everyday because each day all new court decisions are published. Have your case settled, won, thrown out - it is there.

Kate did not look, at least related to my case, for the 6+ months it took before my father started paying her again.

She called me a few mornings after she received her check.

"Carol, I have some bad news. I called opposing counsel. He told me the case was thrown out of court 6 months ago. Carol, I am very sorry. I'll appeal. Hopefully we can get it reinstated."

I had no one to advise me. My father certainly would not and even if he did I could not trust his motives. I agreed to wait and see what happened with the appeal.

In the appeal she wrote she had not received written notice from the opposing lawyers. She blamed the post office, the letter never arrived. It was no surprise, based on her reasoning and lack of the barest of attention to the INTELLIGENCER, that the Judge ruled against us. The case against Dr. Martinez was gone: there was nothing to be done about it.

What about Kate Lecky, Dr. Jannetta and me? That will be the next post.

This is the Martinez ruling summarized:


  1. Carol,

    It sounds like the attorney did not have a calendaring system in her office or a paralegal who stays on top of all of her cases. When I worked in the legal profession, I set this up for my boss so that he never missed a deadline.

    It sounds like she committed legal malpractice and you might have a suit against her. You could check out the law students at your local university for some free legal advice.

    You certainly got screwed all the way around. I feel for you.


  2. Hi Chelle,
    I should put the dates in. This was in 82 I think. They were lined up to sue her but I thght her kids would be financially injured if I did.l I wish one of the lawyers who wanted to sue her had explained to me about the way malpractice insurance worked.
    I still feel I made the right moral decision but I sure do regret not knowing what I didn't know. (:
    Unfortunately with her I think it might have been sheer laziness or she didn't care since the case was on hold. No excuse either way.
    Your boss is lucky he has you.
    Thanks. I did but this is just the beginning of the screwing. As they say, stay tuned.