Governor Ridge and Me and the end of the story.

On Monday morning, January 16, 1995, I spoke with Mike. "I do not accept the settlement." I told him what Bob did, how he essentially forced me to take it.

"Carol, you said "Yes". You have to take it." "That's not right. I was literally forced to the point where I had to give in. Mike, I was crying by the end of the last call. He had to know my agreement wasn't voluntary. He forced me." "Well, it's too late now to take it back."

On Tuesday morning I received a letter from Bob. A release prepared by opposing counsel was included in the envelope. Neither side wanted to waste any time. "Please review...and, if it meets with your approval, please execute and return..."

Of course it did not meet with my approval. I spoke with Bob on the 19th, "The release does not meet with my approval. I do not authorize settlement." I had now said it 2x.

I talked with Mike on the 20th. I "instructed" him (as per his letter to me) "that there was no settlement." He asked me to give him a call so we could discuss it further.

We spoke, I reiterated, 'no settlemet'. He told me, once again, "You have no choice. You agreed."

My aloneness, again, was all that could inform me. I had to rely on them. He, and Bob, were the lawyers. They tell me I must take the settlement. Then what choice do I have? I cannot deal with getting another lawyer to fight these lawyers. All my reservoirs of energy and fight were depleted.

"Mike, you say I have to accept it. I don't and you don't accept it and Bob doesn't accept it when I tell you that. I guess I have no choice. Send me the paperwork."

The settlement was bupkis but at least it was over.

Dr. Jannetta essentially got away with it. The CAT or catastrophic medical malpractice fund, run by the state, paid almost half and his insurance paid all or almost all of the rest. I often think it would have been better had he been required to look me in the eye and take a dollar bill out of his pocket to hand me directly.

It would have been over, the upset, frustration, and anger, if not for the fact that within a month of the forced settlement Governor Ridge nominated Dr. Jannetta for the position of Pennsylvania Secretary Of Health.

My case was in the courts for 14 years, proof of perjury, and more, and suddenly it ended with the forced settlement. The timing seemed fortuitous. Had the case not ended it would have been impolitic to name someone whose testimony the court called perjurious.

I wrote the governor and all 50 senators. No one cared. The goveror's aide waited almost 3 months to reply, by which time the confirmation was a done deal. He wrote, in part, "the consistent information we received from peers, patients, the community...is that Dr. Jannetta possesses the highest integrity ad attributes of sound character and professional reputation." That would not have been so had my lawsuit still been active.

I went to the attorney general's office. I had to fight to speak with one of the lawyers. He looked at the Pa. Superior court's decision: "We have little difficulty in concluding that Dr. Jannetta's testimony at deposition was different than, or inconsistent with, the testimony at trial." Levy v Jannetta, CCP Allegheny County, GD 81-7689; appeal -J. A370017/92. Levy v Jannetta et al, No. 00150 Pittsburgh, 1992. settled, 1995." It made no difference. "There is no case here." he said. It never dawned on me this AG was a Ridge appointee. Of course he would not take action.

I went to fee dispute. It was Mike, Bob, myself and 3 attorneys who would be hearing my complaint, and their defense. One attorney, in particular, made it clear he was on their side, treating me as though he was the lawyer for Fishbein and Unterberger.

It was an awful experience. The result was, and was not, what I expected. To my mind, since they did almost no work, they did not deserve more than $10,000, 1/6th or so of their fee. I knew that would not happen.

The decision was for an additional $10,000, for me. They found in my favor but the written decision read "We find for the attorney". So Fishbein and Unterberger were in the clear along with Jannetta.

I had 2 years in which to sue for legal malpractice. I talked to one attorney who was not interested: too much work because you have to prove you would have won the underlying medical malpractice case as well as prove the legal malpractice.

I called another office. The lawyer with whom I spoke felt I most definitely had a case. He wanted to discuss it with another lawyer in the firm. He called me back a few minutes later, anger in his voice. "Did you know Mr. Cantor, one of the partners, is one of the lawyers who heard your fee dispute case? What kind of game are you playing?" "No I didn't. The bar association gave me your number, but no name, when I asked for a recommendation." His voice softened. "All right then. But, obviously we cannot help you."

The physical pain of the trigeminal neuralgia as well as the emotional pain from all that had gone before made it too hard for me to call any others. Besides, Mike did not seem like a very happy man. He lost his "zest" and complained to me about his kids and family life (he has denied this). Maybe that was enough; I did not need to add to his misery.

And then I found out he was not as miserable as he had seemed.

I had heard about the Phen pen diet drug and the massive lawsuit against the company that made it.

And then I heard that Mike Fishbein had won a $58 million fee for himself and his lawfirm as one of the main lawyers in the case. So much for not having zest. This case was settled in 2000. It was ongoing during the time he had my case.

A number of years passed when I decided to try the state's attorney general again.

The lawyer who came out to speak with me at first said there was no case. As he read through the paperwork he started shaking his head and murmuring. He finished reading and handed the papers back to me.

"I am so sorry. We would prosecute him for perjury but you just missed the statute of limitations. There is nothing we can do."

So everybody got away with it but me. I continued to pay when the trigeminal neuralgia association refused to let their membership know about my book, because my experience with Dr. Janetta was included. My inability to write on their Facebook wall was what started me telling you this story, a story I have not told publicly before. Ultimately I was allowed to write on their wall so I mentioned my book there. And here? Here I tell you about Peter Jannetta, Mike Fishbein, Robert Unterberger, Governor Ridge...and me.

(I saw Dr. Janetta at a trigeminal neuralgia association conference about 3 - 4 years ago. I went up to him. "Dr. Jannetta, I wanted to let you know I have had a browlift, 4 facelifts, some of the side of my mouth removed, repeated tarsorrharphies..." He interrupted me. Not with words, but with action. He picked up the newspaper from the chair next to him and began reading it.
He had absolutely no interest in the carnage of my life as a result of his surgery.)

Browbeaten by my lawyer.

I was worried about going to Pittsburgh. I felt Bob was totally unprepared for trial, having prepped no one, having gotten the wrong specialist.

Was he going to lose my case because he had not done his homework? Would Dr. Jannetta still end up getting away with what he did?

Bob's first call to me was to say "Don't come up now." His second call raised my hopes.

"Carol, I have an offer from the other side." My heart leapt. My stomach clutched. I was ready to feel elated. After all, without an attorney, a judge had said the case was worth $250,000 to $350,000. This was my lawyer speaking. He would know how to get what it was worth.

"They have offered $250,000. I think you should consider taking it." "Bob, No. That is not what this case is worth. You know what he did to me. We have his perjured testimony and the other proof. No. I will not accept that." "Okay, you should think about it, but I'll go back and see what I can do."

My body shook with anger. My face was paralyzed, my eye sewn shut, maybe permanently, surgeons could not do what they wanted because of the scarring left from the Jannetta procedure. $250,000? No. It was not enough to make up for what he did, to punish him (punitive damages, not revenge), to cover my lifetime medical costs because of his negligence, malpractice, and lie.

He called again. I am not allowed to tell you the amount, by settlement contract. Each time he went lower. "They are offering ($------)."
"$(------)? You're supposed to be going up Bob, not down!" Once again he said "Ok. I'll talk to them and call you back."

I stood by the phone, trembling. There was no one to call for help.

The pain had taken my chance at living a real life, working and making friends. There was no family. I was by myself. The pain and the narcotics did not help in my being able to fight for myself. And Bob, I think, knew that.

The phone rang. I cringed, afraid of what he would say this time.

"We have a new offer of $(------) (lower still)." I fought the tears. "If I refused the $250,000 why would you even think I would take this? Why are you not fighting for me?" "Carol, this is their offer. Think about it." He hung up.

I was thinking about it. He was not ready for trial. (Mike Fishbein would later write in a letter to me that Bob would be doing all the expert prep (including me) while the trial was ongoing (We would be in Court, how could he be outside talking to the witness at the same time?) or he, Mike, would come up to do some of it. Neither ever mentioned that to me.)

The next call was a reminder to think about the offer "Have you changed your mind?". "I already told you you were supposed to be going up. I am not going to take a lower number. The $250,000 was offensive enough." "Well the offer is now at $(------). Obviously you don't want to say 'Yes' to that. I'll call you back."

Call number 6 was even lower. "Carol, we have an offer of $(------)." I could not figure out what he was doing. He was not ready for trial. Evidently any offer was okay to him. After all this would be the least amount of work for a 33 1/3% payoff regardless of how I fared.

Call number 7 had me at my wit's end. "Carol, they will not go above the $(------)." I was crying, sobbing into the phone. "You were supposed to work for me. This is not what was supposed to happen. I don't care what you do. Just get rid of this. Take it." I said weeping copiously, my words barely intelligible. I begged "Please, just stop it, now." I meant he should stop his behavior, his calling and browbeating me. "Ok. I'll tell them we accept." "I don't care. Just get this over with!"

The calls stopped. The amount was accepted, no matter how I had said it.

I agreed out of pure frustration, anger, fear of his having it thrown out because he was not prepared. The amount was an insult but I was exhausted from the emotional whipping I had taken.

I did not accept the settlement. I had to wait and get through the weekend. First thing Monday morning I called Mike Fishbein.

"Mike, Bob forced me into agreeing to the settlement. I do not agree with it. Tell them my agreement is withdrawn."

The final fight was about to begin.

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.