Maybe I should have stayed Pro Se.

Neither Mike Fishbein nor Robert Unterberger (Bob), the associate I was told would be working on my case, were working on my case.

That is an overstatement. They found an expert, right specialty, wrong subspecialty. We needed a neurosurgeon with an adult practice who was very familiar with the MVD. Instead they found a pediatric neurosurgeon. He could not comment on adult practices. It was not his specialty. Nor was trigeminal neuralgia.

It was hard to find a neurosurgeon willing to testify against Dr. Jannetta, or testify, period. At trial I used the best Jannetta Procedure expert there was: Dr. Jannetta. Who better to know the surgery and, as the defendant as well, he would not cost us a cent. But this was not whom they thought to engage as our expert.

A facial nerve specialist and an ophthalmologist, at the least, were important to the case. Mike did not bother with the former. He asked me to see if my ophthalmologist would testify. Dr. ( ) agreed to, about the eye damages as well as the lifelong complications and risks. The other effects of the paralysis was left with no one to speak about them.

No depositions or interrogatories were sent out by either of my lawyers.

The only expert they had me see was a vocational counselor. His report would state whether I could work and at what. It went to the issue of damages but in the scheme of things was the least important report we needed.

The trial was scheduled but nothing was happening. I waited, thinking a lawyer of Mike's caliber was getting all his ducks in a row. Two months before we were to go to court, my worry mounting, I met with him.

"You're not acting as my advocate." He looked at me without any visible concern - about me or the case. "I have been doing this for 20 years and after all that time you lose your zest for it."*

I did not know what to do or think. The Judge was not going to give us a continuance. I already knew how he felt about me and the case.

I kept my fingers crossed hoping that the ducks would start lining up.

It was the week before trial. Bob called me. "Trial starts next Monday. I'm picking the jury Friday afternoon. You can come up to Pittsburgh on Friday."

He had not prepped me for trial. He had not prepped the ophthalmologist. To my knowledge he had not talked with the (wrong) neurosurgical expert.

It did not seem he was ready for trial but there was nothing I could do about it.

At least, I thought, I'll be in Pittsburgh soon and once he preps me to take the stand I'll feel like this trial is really ready to happen..

Then my phone rang.

"Carol, you don't need to come up here this weekend. I won't need you until the trail starts so you can wait until late Sunday to come up."

Late Sunday? Then when was he going to prepare me to testify?

My fear about his readiness for trial turned out to be a wasted worry.

He called me Friday evening to tell the jury had been picked. That was good. It was the rest of what transpired in that call and the additional 6 others, over a 2 1/2 hour period, that had me in a tizzy and sobbing into the phone.



*He has denied saying that.

Got a lawyer and an appeal (or hope springs eternal).

Feeling dejected and angry I went over to the clerk's office to request copies of the transcript.

I watched tons of Law and Order. Each time a guilty defendant won there was nothing the state could do. This was the end of it. And Jannetta had won.

The clerk asked me if I wanted to file papers for an appeal.

"Oh, No. I can't appeal. I lost the case." She looked at me in surprise. "You absolutely have the right of appeal." It took most of my self-control not to squeal in relief and hope. I scooped up the necessary forms she held out to me delighting in the knowledge maybe all was not lost.

I left the office and walked into the hall looking for the elevator. Standing in front of it was Mr. Olszewski.

He tried to be pleasant, making little chitchat I no longer recall. He ended by saying it was nice meeting me and that he wished me well.

"We'll probably be seeing each other again. I just filed for an appeal." His face fell. "Oh." "Yes.", I said. "I did not even know I could do that until the clerk mentioned it." "I sure wish she hadn't told you about that." he replied somewhat under his breath.

Pro Se in this case had been enough for me. I had to get an attorney for the appeal. Armed with the perjurious testimony as well as the illustrations Drs. Jannetta and Gendell had drawn at their depositions, which did not jibe with each other, and other proof of malpractice and negligence, I assumed I would have no problem finding a lawyer.

One or two still turned me down, mostly because of the problems left from Kate Lecky's mangling of the case as well as the fact that I had been Pro Se.

Fed up with cold calling attorneys I decided to contact a kid I knew from high school who was now an lawyer.

Mike Fishbein and I had not known each other well or hung out in the same groups but I remembered him as a person of integrity and decency. That was what I wanted in a lawyer. Aggression would be good too, but the others mattered because it meant they would honor their commitment to me, the case, and the law.

Mike and I met for about a half an hour. A few days later he advised me he would accept the case. The cost would be in the form of a contingency agreement, 66 1/3% for me and 33 1/3% for him.

At our second meeting he introduced me to Robert Unterberger, an associate. Although the contract was between Mike and I Mike told me that Bob would be doing most of the work. I agreed, mainly because at the end of the day Mike was still the one in charge of the case. It was his word, his signature, his promise to me via the contract, on which I would rely.

He told me that I should write up the first layer of appeal. It went to the Judge who had non suited the case. "Carol, This will automatically be denied." And it was.

Mike wrote the next brief. Although he relied on his own research for case references much of it rested on my work as Pro Se.

The issue for 1 of the 3 appellate judges reviewing the case was that I had not entered the deposition in the proper form as evidence. Dr. Jannetta read from the deposition but I was supposed to have entered the deposition transcript as evidence. The stenographer twice reminded me to do so but my nerves got the best of me and I had forgotten to do it.

The one judge thought this technical error was sufficient to deny the appeal. Thankfully the other 2 judges dissented, stating that although I should have done so, the fact that the testimony had been officially entered into the record was sufficient to allow the case to be returned to the lower court to be reheard.

I was in. And I had an attorney. This would be a homerun.

Nah. Of course not.

2 out of 3 judges hate me.

I was in the courthouse when one of the judges who had a small part in one ruling saw me. He called me into a side room.

"Ms. Levy. You must find an attorney." "Your Honor, I have tried to find someone to take the case. I am unable to do so."

"Then try and settle it. I think without a lawyer the case is worth $250,000 - $300,000. If you had an attorney it would be different."

"They do not want to settle. I have to take it to trial."

"Then I am going to order a continuance. You must have a lawyer."

I told him I doubted that would happen but I would try. Opposing counsel was informed about the continuance; they were fine with it.

A few days later we were to appear before Judge McGowan, the same judge who had sent me to the "time-out" chair.

We were called up before the Bench.

"Your case starts next Monday." he intoned.

"Your Honor, Judge Murphy ordered a continuance. You should have the papers."

"I don't care what he did. Trial starts next week." Mr. Olszewski spoke up. "Your Honor, we have the continuance and we are fine with that."

"I don't care. You do not have a continuance. Levy v. Jannetta, et al. begins next week."

Neither of us were prepared to start. We had relied upon the order of continuance. Now we had no choice.

First thing was to pick the jury. One by one potential jurors were called to a table where both of us asked them questions. Once all had been queried we went outside to fill out a paper checking off which ones we wanted and which we did not. It was interesting that we both knocked off ones the other wanted. I was surprised it was that easy. Maybe this lawyering would not be so bad.

Dr. Jannetta set the stage with his testimony at the two depositions. "Major and common complication" My testimony was the opposite. He not only never told me that facial paralysis was a risk, he had denied there could be any possibility of disfigurement. Dr. Gendell had said the same thing in the hospital and acknowledged it in his deposition.

I thought he should be rewarded for his honesty, about the risks as well as when he took responsibility for the unnecessary dietary treatment.

I made an appointment to speak with opposing counsel the day before we were to start trial.

"Mr, Olszewski, will Dr. Gendell testify at trial as he had at deposition; that he did not know facial paralysis was a risk and he told me it was not?" "Absolutely." "Then I'm dropping him from the suit."

Dr. Gendell had been named as a defendant as had the hospital. In my pain, and my concern most about Dr. Jannetta being called to account, I had let the case against the hospital slip away, not having done any prep on it.

I felt that Dr. Gendell, by his honesty, did not deserve to remain a defendant.

Before the trial started the judge called us into chambers. He gave me a little speech about going Pro Se and how hard that is to do. He told me he could not give me extra help. I expected that. I did not expect he would try and hurt my case.

I was up first. Opening statements are very specific. You can only say what the issues are and what you will be proving.

I had a sheaf of papers in my hand. My hands, voice and body started shaking as soon as I began reading my statement to the jurors. I looked up every once in a while. It was obvious they were not paying attention.

I knew the case. I should not need my cheat sheets. I stopped reading to them and looked at them directly. Their attention perked. I finished up and sat down at the plaintiff's table feeling I had made my points.

Mr. Olszewski, of course, gave a good opening: whatever she said she could prove we will prove the opposite.

I called myself to the stand and told my story. Then Mr. Olszewski stood before me. One by one he named every surgeon who had operated on me before and after the Jannetta surgery and asked what each had told me about the risks of their procedures. I replied for each that it was not the same kind of surgery so the risks were not the same, and none had named risk of facial paralysis.

These questions were objectionable, irrelevant and improper. I was so nervous I did not think to object. The Judge never interrupted my testimony or indicated the questions were out of line.

I finished and then called Dr. Jannetta to the stand. He took the oath to tell the truth then sat in the witness chair, legs crossed, complacency apparent in his every movement and intonation.

I took him through the hospitalization, what had he done, what had happened and then asked the biggie.

"Dr. Jannetta, is facial paralysis a known risk of the MVD, or Jannetta Procedure that you perfromed on me?" I was prepared to go after him for his lie at deposition. "It is an unknown complication. How could I have told you about something that was unknown?" I was not prepared for a new lie.

I showed him his deposition. "Dr. Jannetta, please read your testimony highlighted here." He looked at it with little interest. "Facial paralysis is a major and common complication of the MVD of which I invariably inform my patients." "Dr. Jannetta, which is true, what you just read from the deposition or the testimony you just gave, that it was an 'unknown' complication."

"You can't ask him that!" the Judge practically shouted, cutting him off before he might answer. Had it been an improper question it was up to Mr. Olszewski to object. The Judge was not supposed to do his job for him. He gave me no opportunity to re-ask the question. Instead he adjourned for lunch.

Throughout the lunchbreak I thought about what I could do. I never thought Dr. Jannetta would change his testimony. The only explanation was that his attorney had told him what I had said about Dr. Gendell testifying about paralysis being unknown to him as a risk. Dr. Jannetta arranged his testimony to jibe with the resident's. Did his lawyer tell him to do so? That I do not know. If he had it would be a crime. It was a crime to commit perjury and it was a crime to persuade another to testify perjuriously.

There was only one choice.

I returned to the courtroom and the trial resumed.

I stood. "Your Honor, I rest my case."

It was pro forma for the other side to ask that the case be 'non suited' or thrown out of court at the end of plaintiff's presentation.

It was to my benefit the Judge wanted me out of there.

The fact was I had presented testimony that I was not told about the risk and Dr. Jannetta testified, at least in shown deposition, that he had told me. That made it a question for the jury. Even though I presented nothing of the rest of my case for negligence and malpractice the groundwork was set for the jury to decide who was telling the truth.

It was to my benefit the Judge wanted me out of there.

"Mr. Olszewski, your request is granted. This case is non suited." And with that it was over. All hope was lost.

Or so I thought.

The resident's turn to be deposed.

Dr. Gendell, the lead resident on my case and in the O.R., sat at the table, ready and willing to sit through the deposition.

I had him draw a picture of the operative site and mark down what he had seen during the surgery. Later I would do the compare and contrast with the drawings rendered by Dr. Jannetta.

While I was in Pittsburgh Presbyterian Hospital, my treatment was somewhat, disheveled, for lack of a better word.

Even though the diagnosis of trigeminal neuralgia was not in question they still had me seen by a psychiatrist. Chronic pain and women, more often than men with chronic pain, is often viewed with suspicion.

I think it was also something for the psych residents to do. Maybe, too, they learned something about pain. They came to the same foretold conclusion. Whatever neuroses I might have, they had nothing to do with the pain.

They also decided I should be tried on a nutritional supplement. "Maybe increasing your level of vitamins and other nutrients will help the pain."

It was Dr. Albright, another resident, who presented me with this regimen, a can of Sustacal (or similar drink) with every meal. It tasted awful and, despite filling me with minerals and vitamins, made no difference in the pain.

"Dr. Gendell", I asked, "Was it your idea to give me the Sustacal?" "Yes." "Did it make any sense to do that?" "No."

An honest answer. One he did not have to give. I was very impressed.

Then we got to the nitty gritty. I asked him about the risks of the procedure. "Did you tell me or my parents that my face could be injured?" "No. Facial paralysis was not a complication of which I was aware."* He stayed until all my questions had been answered. The next big step was when we would meet again in court.

Despite Dr. Gendell's truthfulness I still needed expert witnesses.

Doctors and nurses both refused to testify against Dr. Jannetta when asked.

Kate Lecky, the original lawyer, had not talked with any of the hospital personnel. When I did, even though it was now a few years later, there was no hesitation. "I remember you but I will be fired if I testify. I am very sorry."

She had contacted a few neurosurgeons. Either the answer was "Dr. Jannetta is a friend of mine." or "I cannot testify against someone of Dr. Jannetta's stature."

The only recourse I had was to make Dr. Jannetta my expert witness against himself. I expected him to tell the same lie about the risks as he had at the two depositions. I was much more prepared to pursue that part of the case.

I thought that even an adversarial relationship still required the honesty that I assumed was part and parcel of the law (I know I am ridiculously and stupidly naive.)

Dr. Gendell had been honest in his deposition. He admitted to someting that he did not have to admit to (the Sustacal silliness) and he acknowledged he told me that facial paralysis was not a risk. Dr. Jannetta was his teacher. The only way he would not know it was a risk was if Dr. Jannetta had not taught him it was.

I thought the truth deserved to be acknowledged.

That acknowledgement almost cost me the case.

Depositions start now. (medical malpractice con't.)

Of course I am only writing about the more interesting anecdotes. Lots went on in-between but that is the boring minutiae of most lawsuits.

It was time for depositions.

I scheduled Dr. Jannetta's for the afternoon. Dr. Jannetta, opposing counsel and I, and a stenographer, were there.

Dr. Jannetta had no trouble hiding his disdain - for me and the proceedings, but he did answer the questions.

I asked him to draw illustrations of the surgical area, marking and describing what he had found. I would later compare them with pictures his resident would be asked to draw.

He said he operated on me. He described what was found on operation. I asked "What were the risks of MVD or 'Jannetta Procedure' of which you advised me before the operation?" He replied immediately, "Facial paralysis is a major and common complication of which I invariable inform my patients."

It was hard for me to keep a straight face. That was not what he told me, or my mother, or my father. That was not what his resident told me when he was asked.

We had been at this for about 1 - 1 1/2 hours. I started to ask a follow up question when Dr. Jannetta stood up. He looked at his watch and announced "It's 3:30. I have to leave."

I was astounded. There had been no set time parameters. This was an official legal proceeding. The subject of it was not the one who determined when it would end.

"Dr. Jannetta, I am not finished." "I'm leaving now." The last sentence in the official stenographic transcript was the voice of Dr. Jannetta's lawyer.

"Dr. Jannetta...," But his voice was not heard. Dr. Jannetta had left the room.

I would have preferred had he stayed. I did not have much more to ask. It would have been over and done, and he would not have been required to come back and sit for a second deposition.

The most important part of the second deposition was the question, asked again, "What did you tell me were the risks of MVD?"

His answer remained the same. "Facial paralysis is a major and common complication of which I invariably inform my patients."

His recollection and mine were diametrically opposed. He had told me "I promise you your face cannot be injured."

Forget the claims of malpractice and negligence. The stage was set. The jury, the triers of fact, would be the ones to decide; who is telling the truth? The next deposition, with his resident, would help illuminate the answer.

The judge hates me. Medical malpractice con't.

It was a shame not all the encounters, between opposing counsel and I, would be as sweet. Now that we had met, for the most part, we became what we were: adversaries.

Everything that required my presence was in Pittsburgh. I had to take the train up, stay in a hotel, and take a cab wherever I needed to go. I always knew when I had not made any points; Ed offered to drive me back to the hotel. When I proved issues in my case, suddenly I was back in a cab. My barometer as to how I was doing was the way I got back to the hotel.

A lot of paperwork went back and forth, interrogatories, admissions, deposition corrections, requests for depositions, requests for records, etc.

Ed rarely answered them in the timeframe required. I usually let it go because, at the end of the day, he did respond.

One time it was to my absolute advantage that he did not reply.

Admissions are questions that are admitted or denied. These were directed to Dr. Jannetta. "Were you in the hospital at the time of my surgery?" "Did you do the operation?" "Did you look at the pre surgican defensive tests before surgery?" "Did you tell Ms. Levy facial paralysis was a risk of the operation?" and so on. The sanction for not replying within the required 30 days was an easy one. All answers were presumed in the favor of the plaintiff. That was it. He did not answer, in fact never answered, despite repeated requests, so they were all admissible in my favor.

The other time he did not respond, I believe it was to interrogatories, I had to go to court again.

This time I entered a formal courtroom, a judge's bench up front. There was about about 70 people in the room, men and women, most with briefcases and almost all dressed in suits. They sat or stood, talking with each other in groups of 2's and 3's. I found a seat and sat alone.

I kept looking around for Mr. Olsewski. I continued to call him by his formal name, not wanting to be lulled into a feeling of familiarity with this nice guy, my adversary. He never came.

A clerk called the room to order and then called the cases, one by one.

The rules were simple. Called case by case the attorneys for both sides stood before the judge. One side stated what they wanted: the other side why they did not want to give it. If opposing counsel was not there to contest the request, they forfeited, and the judge ruled in the favor of the presenting party. This was not a specious rule, it was codified in the Pennsylvania Rules.

My case was called. I stood before Judge McGowan. Ed was nowhere to be found nor was his Ms. Theis, his recently added co-counsel.

"Your Honor, I would like sanctions put in against Mr. Olszewski, et al, if interrogatories are not answered within 30 days as opposing counsel has not provided the replies within the time frame stated in the request."

Judge McGowan looked down at me, dislike and disapproval written all over face. "I don't see opposing counsel here. I want you to go sit over there.", he intoned, pointing to a chair at the side of the room, away from where all the others sat. "I am going to have my clerk call Mr. Olszewski. I want him here to tell me he does not oppose your motion." "But your honor." I did get to finish my sentence. "Miss Levy, go over there", he again pointed, "and stay put until I call your name."

I had no choice. It was certainly not going to help me to argue with a judge; and who knows what could happen if I did. I sat, a child sent by the teacher to the "time out" chair, separate but in view of all. I felt and was humiliated.

I waited about 20 minutes. The door opened and Ms. Theis arrived. "Ms Levy, come over here." the judge ordered.

Against all rule of law, he said "Ms. Theis, Ms. Levy is asking for sanctions against you if you do not get the requested documents to her in 30 days. Is that okay with you?"

"That is fine, your honor."

"In that case, I am granting the motion for sanctions."

This was my first lesson in what the Pittsburgh court called law. They did not like self-representation, they seemingly did not like me, and what would become exceedingly apparent, they had a deep like for Dr. Jannetta.

Intermission - roller coasters.

I saw an ad the other night (I do not recall for what). It showed folks on a roller coaster. The voiceover was: "10% of being on a roller coaster is holding on. The other 90% is letting go."

Letting go. I wanted to let go. I have yet been able to do so.

Years ago, through psychotherapy, I was learning some very upsetting things about my childhood and my life. Things that made me want to scream. But I did not.

The pain always made me want to scream. But I did not.

My life circumstance made me want to scream. But I did not.

I got an idea. I would do some things that I knew would help me let go, force me to open my mouth wide and let out the sound that had been silenced for so long.

I drove across country. When I got to California I went to Knott's Berry farm. They had those rides where you went up into the air and then was sent hurtling back down to earth. Surely that would force the fear out of me.

I tried two rides. The first was where you went up by yourself in a kind of encased platform. Then, suddenly, whoosh, you were let go, you and the cage flying downward.

I was lifted to the top of the platform. I counted to 5 waiting for the letting go. Suddenly the cage and I lurched quickly downward. As it started to go I took in a deep breath. And held it.

To my surprise I actually enjoyed it. It was terrifying but okay. Neither a yell of fear or even a sound of joy escaped me.

I tried a second ride where you went up in a chair, five people in a row, Once up in the air it was hard to know when they would release you; all of us go flying down to the earth. This one I did not enjoy but still, no sound from me.

I retuened home, no worse for wear. Mybe a year later my friends were visiting. They wanted to go to 6 Flags. I agreed, thinking now is my chance. I' will go on the worst ride I can think of, in terms of fear.

When I was a kid my mother took me to Wanamaker's department store. Among the things they had for the kids was a Merry-Go_Round. 1-2 minutes on it and I felt sick as a dog, yelling "Stop this! Let me off. Let me off!" Even swings set my stomach on alert. Dread, big carnival ride, those words went together.

Which is the most terrifying? A roller coaster. Speeding down a thin railing, nothing but space ahead of you, the feeling of going off into the void, crashing. Surely, this would force the screams out of me.

When I began having memories about being abused as a child I saw myself 'going away' while it was happening. Up, up into the air, it was nothing but a bad dream. It was not, could not be, happening.

I was on the coaster with my friend's husband and one of her kids. They were loving it. I cowered, afraid to breathe, repeating to myself, over and over, "This is just a dream, it is only a dream." When the ride was over and I got off and kissed the ground.

My fear had been overwhelming. Instead of the letting go, my body sucked in all the fear, all the breath, all the overwhelming dread. The scream would not come.

I think of this as I write about the malpractice suit. I did not want to be my own lawyer, I wanted someone to be there for me, to fight for me, to be my advocate. I wanted them to be my voice in the court, and, by fighting for me, to be my scream. To help allay the pain of my life and effort to stop the pain.