December 22, 1997
Consumer activist continues crusade
by Deborah Stone
For Malee Shay of Woodinville, the recent resolution of her medical negligence litigation regarding a mishandled breast biopsy procedure does not signify closure. She says, "Yes, I feel relieved that my personal case is resolved, but through my research I have found that the bigger issue is a consumer one. I feel unsettled that medical consumers have little recourse with wrong-doing and that the system's set up to protect the medical establishment." Although Shay personally feels a hundred percent vindicated, she is vehement about pursuing the issues further. She says,"I don't feel ready to drop things. If this were all about me, I wouldn't have spent four years of my life on it. It's about others and the system." This relentlessness is characteristic of Shay and she describes herself as having "bulldog determination." Shay's attorney, Jeff Jones, from the Law Offices of Krutch Lindell in Seattle, echoes this description of his client. He says, "I have not encountered many people as determined as her. Becoming proactive like Malee is unusual. She put enormous effort into doing personal research and had a strong need to find out that her concerns were legitimate."
Jones, whose practice consists of about fifty percent medical negligence cases, took Shay's case over a year ago. Initially he felt he shouldn't take the case because there were not clear cut standards and no agreement in the medical community regarding the stereotactic core biopsy procedure. He also felt that the damages didn't justify the expenses that would be incurred by the litigation. "The decision to take a case is based on whether it's in the client's best interest to pursue litigation," states Jones. "Medical negligence cases are generally tough and also very expensive." He explains that the toughest part is finding a doctor who will evaluate the care given to a patient by another doctor. There's a reluctance to say what the doctor would have done in the case after the facts.
After meeting Shay and reading the 350 page document she had assembled since her biopsy in 1993, he decided to represent her. "I felt someone should take it," said Jones. "Every once in awhile you take one you know will be tough simply because you feel that the client deserves representation and believes strongly in the issue. Malee was convinced she was right and I was concerned that if I didn't represent her, she wouldn't be able to find someone to take it." Jones soon found the case increasingly more interesting as through the discovery process, the question of training and regulations regarding the actual biopsy procedure using the stereotactic machine became a legitimate and important one. He says, "The case was about accountability and the recognition that at some level there's a legitimate issue to be addressed."
Shay's case, filed in November 96 did not go to trial. It was resolved just last month out of court. The terms cannot be discussed due to a confidentiality agreement that both parties have signed. Shay's decision to have the case resolved stemmed from her wish to pursue larger issues at higher levels. "I feel," says Jones, "that for Malee, the issue became bigger and more important than her individual claim. She saw continuation of litigation as tainting her motives of bringing attention to the issue at national levels. It became a priority question."
Although this case involved much time, Jones is glad he took it. He explains: "What we got out of it in terms of information is worthwhile and what Malee got out of it is important. She's made a significant contribution to the discussion regarding this procedure at the national level. The by-product of the litigation for her was her ability to seek out information and participate in a national debate." Shay spoke last year at the FDA's National Mammography Quality Assurance Advisory Committee in Washington D.C. and was invited to speak again this fall at a follow-up meeting. She spoke about her biopsy experience and subsequent personal research, urging the committee to implement strict guidelines and regulations to insure that this medical procedure is performed on informed patients by competently trained physicians. She was told by committee members that her input was valuable and they are moving towards zeroing in on standards and regulations for this procedure.
Shay's plans for future action include finishing a document she has been working on regarding the weaknesses of the Washington State Medical Disciplinary Board and presenting it to state legislators. She says, "My goal is to effect changes in the system that will protect consumers." She also would like to write articles and even a book on her experiences. In January, an article written about Shay and her testimony for the FDA will appear in Advanced News Magazine, a national diagnostic imaging trade magazine. "I feel I am making a positive contribution in all of this," states Shay. "The important thing I've tried to do is to reach women on a consumer level and make them aware that there are options and that they need to seek out multiple opinions. I will also continue to warn consumers that they are naive to think they can rely on their state medical boards for protection if negligence does occur." Shay says she will persist in her consumer advocate and activist role. She says,"As long as there's an avenue for me to reach one more person, I will keep on."