Kathleen A. Gagne

Kathie Gagne died 4,511 days ago.

November 26th, 2012 @ 2:43 pm

By the end of November 2012, three and a half months after mom died, I was completely fed up with the lack of communication between me and my lawyer. Finding a lawyer willing to handle the case in the first place was like pulling teeth, and now that I was back in Los Angeles it was going to be even more difficult to find a new one. I sent this email to a fellow blogger I’ve known for years:

Hey [redacted],

I don’t really know how to phrase this, so please bear with me.

My mom died on August 12th of this year at the age of 63. It is a terrible tragedy, and easily the worst thing that’s happened in my life. I miss her dearly and to say that I have been devastated is an understatement. She was physically very healthy and should not have died.

I have a lawyer — a friend of a friend of a friend referral — who has taken the case on contingency; it was nearly impossible to find a lawyer who was willing to take the case because my little sister and I are 37 and 39, and apparently there is some crazy in law in Florida about children over the age of 25 not being able to financially “benefit” from the loss of a parent.

Please understand that I am not trying to profit from my mother’s death. But I am livid about how she died and I want to make the people responsible pay somehow.

The lawyer I have will frequently go for weeks at a time without responding to my calls or emails, and I am considerably anxious about this.

My question for you is: Is it ever reasonable for a lawyer to go for so long without communicating with a client? Should I simply be grateful that I was able to find someone willing to take the case on contingency and be patient? Or do you think that I should look for alternative representation? Do you have any recommendations?

If you say that you are unable to respond to questions like this, I will completely understand. You’re simply the only lawyer I know (and trust) in the state, so I thought it would be worth a shot.

——————–

Other details:

My mother was institutionalized in December of 2011 after a nervous breakdown. She was then kept drugged out of her mind for months — even though I repeatedly begged doctors to stop administering pyschopharmaceuticals — and bounced from hospitals to rehab facilities to nursing homes, with administrators and doctors simply handing her off to the next place they could dump her because she did not have health insurance.

I have incredibly detailed documentation of hundreds of phone calls, letters, and email exchanges between myself and dozens of representatives of the health care system in Florida. The vast majority of these are posted at kathiegagne.com and dated and time-stamped. My lawyer insisted I make the website private because he thinks “the defense” will use the information in court. But if you are interested I can give you access so you can read.

On August 7th I was called by her nursing home and asked if it was okay to administer a drug called Risperdal to mom. I told them that I absolutely did not want her on that drug, which has a history of deadly side effects and to which she had had negative reactions already earlier this year. I was told that they would not give her the drug. Then she was rushed to the hospital on the 10th and a nurse there told me that according to the records she had, the nursing home was giving her Risperdal daily. I called the nursing home and begged them to stop, in tears, and they refused to listen to me, told me I would need to call on Monday to talk to an administrator, and hung up on me multiple times. At one point I even said, “It’s not going to do me any good to call on Monday if she’s dead by then!” I kept calling and they would hang up on me. She had a heart attack on Sunday the 12th and died. All of this is very well documented.

The story is much, much longer, of course. But those are the basic facts. I paid the District Five Medical Examiner to perform a private autopsy for me after the Volusia County ME refused to do so.

Thank you a million times over for any advice or suggestions you may have,

He replied to me about forty-five minutes later:

David,

First of all, my condolences for your loss. […]

[…]

That being said, if they gave your mother a drug against orders from you, AND you had a medical power of attorney, there might be some liability there. If they gave her medications that were not consistent with the standard of care, and that caused her death—as it seems like happened—there might be some liability there as well. the problem is that the legal claim belongs to her and/or her estate. In other words, the plaintiff would have to be “Estate of Mrs. Gagne” rather than either you or your sister (unless acting as a rep for the estate). I’m not aware of any law that limits the right of the estate to recover for the wrongful death. Now, you and your sister may not have any individual claims in your own right (like a husband or wife would for loss of consortium, for example) but I can’t imagine that the claims of the estate would be limited.

I just spent a moment looking up the wrongful death statute. Here’s the part that’s relevant to you:

§ 768.21

Damages.—All potential beneficiaries of a recovery for wrongful death, including the decedent’s estate, shall be identified in the complaint, and their relationships to the decedent shall be alleged. Damages may be awarded as follows:

[…]

(2) The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury.

(3) Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury. For the purposes of this subsection, if both spouses die within 30 days of one another as a result of the same wrongful act or series of acts arising out of the same incident, each spouse is considered to have been predeceased by the other.

(5) Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.

(6) The decedent’s personal representative may recover for the decedent’s estate the following:

(a) Loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest. Loss of the prospective net accumulations of an estate, which might reasonably have been expected but for the wrongful death, reduced to present money value, may also be recovered:

If the decedent’s survivors include a surviving spouse or lineal descendants; or

If the decedent is not a minor child as defined in s. 768.18(2), there are no lost support and services recoverable under subsection (1), and there is a surviving parent.

(b) Medical or funeral expenses due to the decedent’s injury or death that have become a charge against her or his estate or that were paid by or on behalf of decedent, excluding amounts recoverable under subsection (5).

[…]

(7) All awards for the decedent’s estate are subject to the claims of creditors who have complied with the requirements of probate law concerning claims.

(8) The damages specified in subsection (3) shall not be recoverable by adult children and the damages specified in subsection (4) shall not be recoverable by parents of an adult child with respect to claims for medical negligence as defined by s. 766.106(1).

So if your mother has a surviving spouse, he may have a claim. You and your sister probably do not. The estate may have a claim for specified damages under (6) but those would be minimal given her likely potential earnings. Because the claims might be minimal, you will have difficulty finding a lawyer who will take this on—the only ones who will are doing it out of pity or because they don’t understand the law well enough to know its limitations. (I could be wrong—as I don’t know this area very well.)

That being said, once a lawyer takes on a case, he has a duty to communicate with the client to keep the client reasonably informed. If you’re dissatisfied, you may want to seek someone else. If you’re just looking for a second opinion, there may be someone in Tampa or Jacksonville who would be willing to give you a more experienced view. It may take me a day or two to come up with a name, though.

As far as the lack of communication goes, in your shoes I would start to write letters and send them certified, asking for an appointment when he has time to talk. If you don’t get a response to those, I’d find a new lawyer. (And maybe do a little background research into this lawyer. Some of the ones in the Volusia County area are not very good.). Now, “weeks at a time” sounds bad, but I can imagine—giving the benefit of the doubt—that the timetable of the case is that nothing important happens for weeks. If so, the lawyer should tell you that in advance. (“We’ve got a hearing scheduled for Feb. 2—I don’t expect anything to happen until then…”)

I wish I could be more helpful to you—it looks like Florida law is leaving you high and dry on this one because of the limitation on damages.

[…]

Calling Steve

November 26th, 2012 @ 9:07 am

I called Steve Phillips on the morning of November 26th, 2012 while driving to work.

He didn’t answer the phone, so I left him a voice mail asking him to return my call. I said that I was just looking for any kind of update on what is happening, and I left him my phone number.

By November 26th it had been two and a half weeks since I last heard from him, though I’d emailed him several times, and I was understandably anxious.

Thanksgiving

November 22nd, 2012 @ 7:30 am

Today is our first Thanksgiving without mom.

One Thanksgiving twenty years ago — maybe twenty-five? — she made a batch of amazing candied yams. I think she screwed up the recipe somehow, added too much brown sugar or left them in the oven too long, something like that. I thought they were the best thing she’d ever cooked, and I gorged myself on them.

I have never tasted candied yams anything like that batch. I can taste them right now, if I close my eyes and think about them. They were cut into squares, and the edges were all burned (or maybe caramelized).

Well, she was so happy and proud of how much I liked them that she made them every year. For weeks leading up to Thanksgiving she’d tell me she was going to make them and I would feign excitement. When I was in college she’d make sure I got a batch of them every year. When I moved to Los Angeles, three thousand miles away from her, every year she’d tell me she was making them in an effort to convince me to come home for the holidays.

I never had the heart to tell her I couldn’t stand candied yams. It was just that one time that I liked them.

But it made her so happy to make them for me.

Nelnet, Inc.

November 20th, 2012 @ 10:37 am

Mom went back to college in 1994, and received a BA from the University of Central Florida in 1998 at the age of fifty. She was justifiably quite proud of this accomplishment, and my sister and I were very proud of her, too.

She owed just under $9,000 in student loans when she died. I had been dreading calling Nelnet, Inc. because I remembered what a pain it always was to deal with them when they still owned my student loans. But I called this morning and it was surprisingly simple. The man who answered the phone told me that his father had recently died, so he knew how hard it was to deal with all this.

He asked me to confirm her birthday, social security number and — interestingly — the city where she died. He said that was all I needed to do and he would handle the rest. I asked him if he wanted me to fax them a copy of her death certificate, because my little sister told me they were going to want that. He said they didn’t accept faxes, but I could mail it to the claims department in Denver. So I did that and now I feel like one more piece of her is gone.

Re: Status Update?

November 15th, 2012 @ 2:32 pm

On November 15th, 2012, at about two-thirty in the afternoon, I sent this email to Steve Phillips, of Pincus & Currier, LLP, the attorney working with me regarding the death of my mother:

Dear Steve,

Any update? Is there anything at all that I can do to help?

I was able to send another $500.00 to Dr. Wolf, so now I just need to get her another $500.00 and I’ll have completely paid for the autopsy.

It’s been at least a month now that we’ve been waiting for them to get you the records, and I’m starting to really freak out.

Last Sunday was three months, and I still haven’t managed to make it through an entire day without breaking down at least once. She was only 63 and she didn’t need to die. It’s just so unfair. I begged them, and they hung up on me.

Note: Mr. Phillips did not reply to this email (or repeated phone calls) until December 5th, 2012.

C.E. Bunnell and Associates

November 15th, 2012 @ 10:45 am

I’m always a little surprised when I can find no official website related to a company. As far as I can tell, C.E. Bunnell and Associates does not have a website at all. I’m not sure who they are or what they do, but I have a bill here from them to mom.

The statement date is August 8, 2012, which was just a few days before she died. The bill is for $241.00, for services administered by Yepes-Hoyos MD, Pedro at Fish Memorial Hospital in DeLand on July 26 (and referred by Jones MD, Allen J). I don’t recall hearing either of those doctors’ names at any point, but the date matches the day Woodland Terrace sent mom there. What a disaster that was.

The statement detail shows that on that visit she was given the following:

Shortly after the birth of my son, her first grandchild, my mom came to visit us in Los Angeles.

COMPREHENSIVE METABOLIC
URINALYSIS W/MICROSCOPY
AMMONIA, BLOOD
LACTIC ACID
MAGNESIUM
TROPONIN
CBC
PROTHROMBIN TIME (PT)
PARTIAL THROMBO TIME
CULTURE, URINE

I guess it’s safe to assume those were all tests that were performed. (“PARTIAL THROMBO TIME” sounds like something fun that happens at a Miami nightclub.)

I called the number on the bill and — after giving the account number from it, and mom’s birthday, and the last four digits of mom’s social — explained to them that mom had died just a few days after this bill was sent.

The woman on the phone told me she was sorry for my loss and told me there was nothing I needed to do, that she would “take care” of the bill.

Everyone’s sorry for my loss.

Kevin B. Wilson Law Offices

November 13th, 2012 @ 10:15 am

I found a collection letter sent to mom from Kevin B. Wilson Law Offices dated July 24, 2012. The bill is for $2,712.30 and shows Florida Hospital Deland as the payee. There is a “debt number” on the bill that matches the one on the bill from North American Credit Services, Inc., the place I called earlier this morning.

I called anyway to be thorough and because the amount is not exactly the same. The woman who answered the phone there said she could not find any information about the debt number I gave her; she said that it was, “so old that it’s been transferred.” Then she gave me the number for North American Credit Services, Inc. and told me to call them about it.

I told her that I thought it was probably the same bill, and that I had just talked to them, but she either didn’t care or didn’t really pay attention to me, because she simply told me I should call them to deal with it.

I thanked her and hung up. I’m going to simply assume that this was an attempt to collect on the same debt and disregard it.

North American Credit Services, Inc.

November 13th, 2012 @ 9:42 am

This morning I found a bill for mom from North American Credit Services, Inc., a collection agency. The bill is for $2,169.84 for service performed at Florida Hospital Deland — also known as Fish Memorial — on December 2, 2011. The date on the statement is 06/20/12.

I called the number on the statement and talked to Misty. I told her that my mom had died, and that I was going through all of her bills and calling collectors to let them know. Misty said she was very sorry for my loss, and that they’d already received a note from Florida Hospital and the outstanding balance has been voided.

Halifax Pathology Associates, PA

November 9th, 2012 @ 8:29 am

Mom had an outstanding balance of $1,375.02 with Halifax Pathology Associates, PA, the company that handles — as far as I can tell — the billing for blood analysis (and nothing else) done at Halifax Hospital.

That total covers six tests done on January 20th, five tests done on January 21st, three tests done on January 23rd, seven tests done on February 24th, and two tests done on April 23rd. Each line item also shows a quantity column, so it could be that some of these tests were performed more than once on a given day and / or blood sample. For example on January 23rd she was charged $721.34 for a quantity of nine (9) for something labeled AMPHIPHYSIN R.

According to its Wikipedia entry, “Amphiphysin is a protein that in humans is encoded by the AMPH gene.” Why they tested mom’s blood for this nine times is a mystery that will probably never be solved.

My mom and I on my wedding day in Maui, Hawaii

The more I read through lab tests and receipts for all the procedures that were done on mom, the more obvious it appears to me that nobody had any idea what was wrong with mom; as hard and as often as they looked, they were unable to find any physical reason for her altered mental status. So they just kept performing tests and administering psychopharmaceuticals and refusing to listen to my constant, repeated pleas for psychiatric and / or psychological care.

And then, when I finally managed to get her to see Dr. Stephanie Mossler, a psychiatrist, on August 7th, she spent just a few minutes with mom and simply prescribed Risperdal. Woodland Terrace called me and asked for approval to give mom Risperdal. I refused and they acknowledged my refusal. Then they gave it to her anyway and she had a heart attack and died five days later.

I called Halifax Pathology Associates, PA this morning and spoke to a very nice woman who told me to fax her a copy of mom’s death certificate and she would handle canceling the bill. So I did that.

Woodland Terrace Uncooperative Still

November 8th, 2012 @ 11:00 am

At eleven o’clock in the morning on November 8th, 2012, I sent the following questions via email to Steven Phillips of Pincus & Currier, LLP:

Hey Steve,

(1) You said that Woodland Terrace is concerned because I have not been appointed the PR of her estate by a court. Would it expedite things if we did this? Is there any downside to my being appointed the PR of her estate? Would that be a complicated process? Is that something you could help me do? Or is that irrelevant and not necessary?

(2) So it has now been a minimum of three full weeks — and likely longer than that — since you first requested copies of her records from Woodland Terrace. Is there a deadline for them to reply? Can they simply delay forever? Would there be any benefit in me calling and making the request?

Thanks, and I hope things are going well.

David Vincent Gagne

Mr. Phillips responded at 11:39 AM:

I am following up with them regarding the records and trying to get them to release them to me.
With regard to appointing you the PR, that would involve opening a probate action with the court here in Florida which is time consuming and expensive so I am trying to avoid that if possible.

Exactly ten minutes later I wrote him a quick reply:

Okay, thanks.

I appreciate it.

Note: As of May 21st, 2013 we have yet to receive copies of my mother’s medical records from Woodland Terrace.