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Grieving dad makes medical malpractice his mission
Published on Wednesday, July 30, 2003
by Howard Manly Wednesday, July 30, 2003
Ten years have passed since the death of Billy Modestino on July 31, 1993, and his father is probably more worried now than ever before.
He knows firsthand about medical malpractice and negligence. His son, a hemophiliac, contracted AIDS as a child after using blood tainted with the virus. The doctors never told his son about the risk of contracting the virus, a risk well-known throughout the medical industry at the time.
Worse, the doctors waited two years before testing Modestino to see if he had the virus and then waited another two years before actually telling him that he had the disease. Four years went by before any treatments began to battle the disease, and by then, it was way too late.
For the Modestino family, it was a question of accountability. ``Something has to change in the relationship between doctors and patients,'' Bill Modestino Sr. said. ``The doctors are making decisions and they have an elevated attitude when it comes to their patients. In our case, the doctors decided that my son didn't need to know he had AIDS.''
An estimated 7,000 hemophiliacs died in the early 1980s as a result of receiving tainted blood, 400 of whom were treated at the New England Comprehensive Hemophilia Center in Worcester, where Modestino was treated.
The Modestino story is particularly poignant now as the debate over medical malpractice rages across the country. President Bush has made curbing what he calls excessive litigation a major issue and supported a Republican-backed piece of legislation that would have capped jury awards at $250,000 for pain and suffering.
Of course, doctors and hospitals supported the bill, largely because of the skyrocketing costs for malpractice insurance. The state's largest carrier increased its premiums by about 13 percent this year, and that came on the heels of a 14 percent hike last year. The result, the doctors say, is that many are forced out of business.
But consumer groups and trial lawyers argue that capping jury awards is not a good idea because no adequate monitoring system is in place to hold doctors, health care professionals and pharmaceutical companies accountable for ethical lapses and medical errors.
And that's where Modestino comes in. He has two grandsons that are also hemophiliacs. His quest to prove that his son's doctors were negligent was part of a larger mission on a larger question: ``Are we really confident that the blood supply is really safe?''
It took him six years to get his son's case to trial in Worcester Superior Court. It is believed to be the first medical malpractice case involving tainted blood to go to trial. The Modestinos' attorney, Bruce A. Bierhans, argued that Dr. Peter H. Levine, a renowned hematologist, and his colleague, Dr. Doreen B. Brettler, should have known that the blood concentrate used by hemophiliacs could be infected with AIDS in the early '80s.
Bierhans produced evidence that Modestino used blood from a specific batch prescribed in 1983 and showed the court a February 1984 letter from the National Hemophilia Foundation detailing how that batch of blood had been recalled by its manufacturer, the Cutler Laboratories, because a donor had developed AIDS.
The jury found Dr. Brettler guilty on two counts, in tracking and treating Modestino's AIDS, as well as failure to inform. They found the other doctor negligent in informing Modestino about the risks.
The jury, however, was unconvinced that Modestino died as a result of the doctor's negligence and awarded them not a single dime.
``It wasn't about the money,'' Modestino said. ``Doctors should be the safety net.'' In Modestino's case, they weren't.
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