'Still a fighter': Why this woman is suing UVA for $50 million

Five years ago, Barb Tocci was working as a real estate agent in downtown Scottsville, riding horses and motorcycles on the weekends. Today, the 54-year-old woman relies on a cane to walk. She's missing two toes and a finger, and she's lost the use of her right arm.

In the Charlottesville area, widely recognized for outstanding health care– with cutting edge medical research and some of the country's leading physicians– how did this happen?

Tocci says the bulk of her injuries are the direct result of a series of medical mistakes, and the now disabled mother finds that she's been billed over $200,000 for the very treatment that she says maimed her.

Happy times
The spring of 2006 was a happy and prosperous time for Barb and Michael Tocci. James River Real Estate Associates, the firm they'd started two years earlier in downtown Scottsville, boasted numerous listings, and Barb had made five sales in three months.

"I was at the top of my game," she says.

When she wasn't meeting with clients, she was a busy mother of six children and took care of 15 goats and five horses the family kept on their 20-acre farmette just outside town. She played soccer on a coed pick-up team, taught kickboxing at the Scottsville Community Center, and was homeschooling the youngest three of her six boys, who now range in age from 10 to 27. Her active lifestyle– and income– was about to end.

Tocci says her health problems began in the summer of '06 when she agreed to do for a friend what seemed to be the simple favor of dogsitting. For two weeks, Tocci says, she went to the vacationing friend's house twice a day to feed and exercise seven Newfoundlands, massive dogs known for their thick, longhaired black coats. She noticed that one of the dogs was producing unusual stools, but says she didn't think more about it until several days later, when she developed the same intestinal symptoms and assumed she'd picked up a parasite from the canine. 

A self-described herbalist who has treated herself and her children for ailments including whooping cough and strep throat, Tocci first tried to cure herself using herbs known for alleged antiparasitic properties. But eight weeks later, with her symptoms still pronounced and having lost 20 pounds from her formerly athletic 5'4", 130lb frame, she decided to seek a specialist's attention.

"They said I was nuts," she recalls of the gastroenterology doctors who heard her theory of canine-to-human parasite transmission. It wasn't possible, they insisted, diagnosing instead a bacterial infection.

Tocci says the powerful drugs prescribed, including the antibiotic Cipro– and a subsequent colonoscopy doctors ordered to find the source of her intestinal bleeding– intensified her symptoms. She developed full blown ulcerative colitis, a serious inflammation of the intestinal tract. And things were about to get worse.

A few months later, Tocci fell on steps outside of her house, striking her side and, she believes, causing a portion of her spleen to die. The organ, which lies adjacent to the liver, plays a role in blood clotting, and soon the herbalist, who had for so many years eschewed prescription drugs, would be placed on the blood thinning drug Coumadin, which comes with its own set of possible side effects.

"It's the same chemical they use to kill rats," she notes.

After about three months on the drug, Tocci had developed a serious condition that can be a side effect of Coumadin: hematomas.

For many people, the word hematoma may conjure an image of a simple bruise, but Tocci's hematomas were anything but minor and were instead a sign that she was hemorrhaging underneath her skin. Her entire hip turned black where blood had pooled, causing tissue surrounding it– almost down to the bone– to die.

Her Martha Jefferson Hospital-affiliated vascular surgeon, who'd been treating the hematomas, referred her to UVA to have the necrotic– i.e. dead– tissue removed in a procedure called "debriding," commonly used for serious burns. Although she understood it could be painful, Tocci says, she wasn't overly worried.

"It's a simple thing, almost an outpatient thing," she says, comparing it to power washing a deck. But if her medical woes were already serious, they were about to get even worse. And this time, she claims, human error was to blame.

ER disaster
On August 3, 2007, Tocci says she was seen by UVA plastic surgeon Thomas Gampper who'd be supervising her case. He didn't think the Coumadin had caused the hematomas, Tocci says. Instead, he diagnosed a different condition: vasculitis, an inflammation of the blood vessels that particularly affects extremities. He noted the vasculitis on her chart, Tocci says, and sent her to be admitted to the hospital for debriding.

Once she checked in, Tocci says, another physician whose identity she doesn't know directed a nurse to fit her with a device often used pre-surgery to prevent blood clots from forming. Known as SCDs, Sequential Compression Devices are sleevelike machines that rhythmically squeeze the legs from knee to ankle, improving circulation and lessening the chance of blood clots forming during surgery. Such machines are standard procedure for many preoperative patients, but according to medical consultant Courtney Thompson, hired by the Toccis to review her case, they should never be used on someone with vasculitis– the condition Tocci says Gampper diagnosed her with earlier that day.

"The patient's safety was jeopardized by placing this device on her," concludes Thompson, who notes that Virginia's "Standards of Care," guidelines that dictate a range of appropriate treatments for specific conditions, says compression devices should never be used in patients with vasculitis.

And indeed, Tocci says, she immediately felt something was wrong.

"It hurt," she says.

Frightened by his wife's reaction to a treatment he himself had  undergone, painlessly, prior to a hernia operation, Michael Tocci says he overrode the nurse by turning off the machines and went in search of assistance. Left alone in the room, Barb Tocci would soon be suffering again.

"Another nurse came in and turned the SCDs back on, even though I begged her not to," Tocci recalls. That nurse ignored Tocci's protests, Tocci says, and Tocci– unable to reach the off switch or free herself– says she lay trapped and watching in horror as her right foot turned blue. Her cries for help, she says, went unanswered until Michael returned to the room with the doctor whose name he doesn't know.

By that time, Tocci says, "I was screaming in pain." The doctor acted immediately.

"He turned them off and corrected the nurse," says Michael, who was a practicing attorney in New Hampshire before the family moved to Virginia 17 years ago and got into real estate. "Then he put a sign on Barb's bed saying 'No SCDs.'"

Unfortunately, Barb Tocci says, the damage was already done.

Over the next four months, she says, she was essentially bedridden, her left foot blackened from arch to toes, her right foot bruised. Gradually, her feet returned to their normal color as the hemorrhage allegedly caused by the compression devices was reabsorbed by her body, but two of her toes were so badly damaged they were amputated.

Her suffering wasn't over, however, and a cascade of new and even more serious medical problems began, all of which she traces to the improper use of the compression devices.

Stroke of misfortune
On Saturday, December 18, 2007, four months after the compression devices were used, Barb Tocci awoke in the middle of the night feeling dizzy. She roused her husband to tell him she wasn't feeling well.

"I was having a hard time talking," she says.

After calling their doctor, who told them dizziness and slurred speech could signal a stroke, Michael Tocci immediately drove his wife to the UVA ER, arriving at 6am.

A stroke deprives the brain of oxygen, and every second without it can increase the level of brain damage. According to guidelines put out by the American Heart Association, patients presenting symptoms of a stroke should be diagnosed and treated immediately.  That was not Tocci's experience.

While checking in, Barb says, she was asked a series of billing questions by the administrative staff as she claims her symptoms progressively worsened and she increasingly lost strength on her right side.

"By the time they were done," she says, "I couldn't walk."

After what she estimates was 15 minutes of questions and about an hour in the ER, Tocci was checked into the Intensive Care Unit, where a technician inserted an IV into the base of her hand and began a drip. Within minutes, Tocci says, her hand above the injection site began to turn blue.

"Even in my compromised state," says Tocci, "I could tell something was wrong."

It turns out that what was dripping into her hand was the steroid prednisone, an anti-inflammatory drug that is not advised for stroke treatment. Unable to speak, Tocci gestured to her husband, who, in a déjà vu moment, ran from the room to summon help. He returned with the doctor, who removed the needle and quickly began treatment with a blood thinner called heparin, which stabilized her but didn't return her lost function.

Once again, the inflammation in her blood vessels had been exacerbated, says Tocci, who says that IV needles should never be placed in extremities in those suffering from vasculitis but should instead be inserted into a larger, less fragile vein.

The stroke permanently paralyzed her right arm and deprived her of most control of her right leg. Her speech is slurred.

As for her left hand, it recovered, but the tip of her pinky finger was too damaged. After months of pain, she says, it finally "self-amputated." In other words, it fell off.

Lawsuit
Each year, about 50 physicians from the University of Virginia Health System get named America's Top Doctors. Despite that reputation, and the family's previously positive experiences there, Michael Tocci says, he immediately believed something had gone terribly wrong with her care– but it was months before the couple put the pieces together.

"We just wanted to move on, to get her back to an active lifestyle," he says. But as the medical bills rolled in and their savings dwindled, Michael Tocci says, his anger mounted– particularly when he realized the stroke could be linked to blood clots that may have formed after use of the compression devices.

"They permanently damaged my wife through negligence," he says. "And now we're supposed to pay for it?"

To that question, UVA answered with a resounding yes, filing more than a dozen claims against the Toccis in Albemarle County General District Court. In total, Barb Tocci's care cost about $215,000, and without insurance, Michael Tocci says, the family faced financial ruin.

The Toccis aren't the only patients who've sought financial relief from the state-funded medical center for a variety of reasons.

According to Medical Center spokesperson Peter Jump, about $204 million of the $2.6 billion the hospital billed its patients in fiscal year 2010– nearly eight percent– was written off.

Jump says the Medical Center complies with a set of state-mandated guidelines in determining who should be required to pay. He says the cutoff is 200 percent of the federal poverty level. For the Toccis, who were at the time considered to be a household of five, that meant an income of about $50,000– a number they concede they exceeded at the time of treatment. But with Barb's new disabilities, Michael Tocci says, their income has decreased significantly.

Regardless, prior year tax returns were what UVA had to measure, and that meant no forgiveness. In such cases, "We expect them to pay their bills or make a suitable payment arrangement," says Jump, who declines to comment on Tocci's case citing HIPAA privacy laws and the pending lawsuit, but notes that the University frequently works with patients to establish payment plans.

Michael Tocci says he tried that, offering to pay $50,000– less than 25 percent of the total bill. UVA countered with a different offer.

"They wanted us to pay $185,000," he says.

The Toccis– who say they have already paid $70,000– declined, and in July 2009, a month before a two-year statute of limitations ran out– Barb Tocci filed a $50 million suit in Albemarle County Circuit Court, naming the Commonwealth of Virginia, University of Virginia Health System, the manufacturer of the Sequential Compression Devices, and Dr. Gampper. In addition, Tocci's suit left open the possibility of adding dozens of additional defendants, including other doctors and the nurse who reapplied the compression devices as Tocci allegedly pleaded for their removal.

Michael Tocci says he and his wife don't believe Gampper ordered the compression devices or directly caused her harm, but as the physician in charge of her care that day, they believe he is responsible.

Figuring out who to name in the suit, however, has been difficult even with the 1,500 pages of medical records they've obtained.

"Part of the problem is that they won't tell us which doctors ordered which treatments," says Michael Tocci, noting that doctors' signatures have been difficult or impossible to discern in the records.

The Toccis would quickly learn that filing a malpractice suit doesn't mean winning a suit– especially in Virginia, a state that's tamped down on malpractice litigants.

Over the past decade– with surgeons often paying more than $100,000 annually in insurance– nearly every state has implemented some type of malpractice reform aimed at reducing skyrocketing insurance premiums that in some cases were pricing doctors out of the profession. Cap advocates argue that malpractice suits raise health care costs to society by encouraging "defensive medicine" in which doctors order unnecessary tests or avoid high risk procedures to reduce the chance of a lawsuit.

Virginia limits medical damages to $2 million. In March, Governor Bob McDonnell vetoed a bill that would have raised the cap to $3 million over 20 years, citing the risk of rising costs to doctors and hospitals that might be then passed on to patients.

Attorney Tom Albro, an expert in medical malpractice unconnected to the case, notes the disparity between what litigants can receive for negligence by a medical provider compared to other professions– professions that may not have the power over life and death.

"Lawyers, architects, engineers, everyone else can be sued for as much damage as they caused without a limit," notes Albro, who won a precedent-setting case against UVA 30 years ago when he successfully argued that state physicians are not universally protected by sovereign immunity, a centuries old legal concept insulating governments from liability.

If hospitals and doctors are shielded by malpractice caps, the same is not true of manufacturers. Tocci can seek $50 million because she also names the Massachusetts-based maker of the compression devices, Covidien.

"There should have been a clear warning on the device," says Michael Tocci.

Calls to Covidien were unreturned.

Attorneys for UVA and Dr. Gampper haven't addressed the allegations in Tocci's suit, but instead have claimed in court filings that she violated several procedural requirements in waging her litigation. Gampper's attorney moved to dismiss him as a defendant based on the fact that Tocci hadn't obtained a medical expert by the statutory deadline.

"There was nothing in the complaint that stated that Dr. Gampper did anything wrong or caused any harm," says his attorney, William Archambault.

Additionally, hospital attorneys argued that the Medical Center itself, as an arm of the Commonwealth, enjoys sovereign immunity.

Albemarle County Circuit Court Judge Cheryl Higgins agreed. She dismissed both Gampper and UVA Medical Center as defendants, citing the Medical Center's sovereign immunity and because Tocci had failed to properly notify the Medical Center of her intent to sue within the statute required 12 months.

While attorney Albro agrees that formal notice must be filed in such cases, Michael Tocci says he believes he met the requirement through the filing of several countersuits against UVA in which, based on alleged negligence, he objects to paying the bills.

"They knew," he says.

The Toccis– who provided the medical expert report after requesting an extension– believe the point is moot because Virginia law doesn't require a medical expert's testimony if the negligence would be apparent to a layperson, something they claim is true in this case. The Virginia Supreme Court declined to hear the appeal, says Michael Tocci. "They called it premature," he says, noting the court will allow Tocci to reenter the appeal, which she plans to do.

Gampper's attorney, however, says he believes the dismissal will be upheld if the appeal is heard.

"To conclude from Dr. Gampper’s brief inclusion in Ms. Tocci’s lawsuit that he was anything but a caring and capable physician to her would not be fair," he says.

One last try

In early March, Barb Tocci sent a letter to UVA Medical Center's CEO Ed Howell, detailing her injuries and asking that he meet to discuss a settlement.

"My experience at UVA Medical Center has forever altered my life," she wrote, asking the  Center to pay her legal fees, reimburse her out-of-pocket expense, and provide rehabilitative services, which she has been unable to afford.

"I'm not trying to get rich," she says. "I just want to pick up the pieces that I have left and go on."

Howell responded in writing, she says, by referring her to the Medical Center's attorney, Richmond-based Elizabeth Muldowney, who did not return a reporter's call.

According to legal analyst David Heilberg, by fighting the case on procedural issues, UVA's attorneys are following standard operating procedure. "The university will settle a case if it's meritorious," says Heilberg, noting that there are "two sides to every story."

Tocci, however, says she believes if UVA administrators simply look at her file, they'll see the medical mistakes that resulted in her disability.

"It's so obvious," she says. "I just wish they'd do the right thing."

Sitting outside their house on a recent sunny afternoon with their youngest son, 10-year-old Myles, the Toccis survey the 20-acre property on which they've lived the past 11 years.

"This used to be the Garden of Eden," says Michael Tocci, recounting his wife's gardening skills and the physical strength that allowed her perform home repairs and mow grass with a push mower. Not anymore. The barn has gotten cluttered, the grass is overgrown, and the former kickboxing instructor now needs her husband's support just to walk outside.

"She did it all," says Michael, noting that with Barb disabled and his need to maintain a paycheck intensified by the lost income, the couple increasingly depend on their sons–- the oldest three of whom served in Iraq–- to assist with farm projects.

Married 28 years, early in their relationship the two played on a softball team where Barb was known for the power of her throwing arm and her ability to whack the ball. "They called her boom-boom," Michael Tocci recalls, smiling at his wife.

"This stroke has changed me," says Barb, recalling her previously outgoing nature. "Now," she says, gesturing with her damaged left hand, "I'm shy, reserved. I'm embarrassed." But she promises one thing hasn't changed.

"In my heart of hearts I'm still a fighter," she says. "That's the side of me they're going to see." And, uphill battle or not, she believes she'll find 12 allies if her case reaches trial.

"If a jury hears my story," she says, "it's all over."
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Clarification: One of the photo captions above was changed to reflect that Barb Tocci doesn't ascribe sole blame for her injuries on the sequential compression devices.–ed.