Forty-Eight Years of Practice
Contributory Negligence in North Carolina
The Longest Night - Death Case
Malpractice Myths

I graduated from UNC Law School at Chapel Hill in 1956 and started practicing law the same year. There were no lawyers in my family to “take me in” and nobody offered me a job so I had little choice but to open my own office. My first “office” was a single room in the Banner Building (long ago demolished) on Elm Street in Greensboro. My monthly expenses were $28.22 office rent and $12.50 for a phone. I had no books or a secretary so there were no book payments or salaries. Fortunately my living expenses were low as I lived at home with my parents and I ate off their table.

But I had no clients - and the demand was small for the services of young inexperienced lawyers! Lawyers couldn’t advertise in those days ( this wasn’t to change for some 20 years) so I made the rounds of established law firms and offered to handle any business that they might throw my way not without regard as to how small or low paying the case might be. My fees for my first month amounted to $78.00 and I considered that I had done well.

Fortunately, my friends and family favored me with their valuable – but scant – legal business as long as it wasn’t too involved or too important. I heard another young starting lawyer say “I was afraid I wouldn’t get any clients and I would starve but I was even more afraid I would get a client and wouldn’t know what to do. I knew the feeling!

Even though I had little to do at first I worked long hours on what I had. I took on any legal matter that came my way even though the fee was small or non-existent. A friend of my fathers owned a tire business and I was employed to collect his bad debts. I did such a good job that he told others and I got several new collection clients.

One of my new “clients” wanted to buy a building lot and he asked if I could “search the title” for him. Although I had never “searched a title” I assured him that I could get it done. Some older experienced lawyers kindly showed me the ropes and I searched many titles after that.

By always being willing to tackle any legal business my “clients” had I learned how to form corporations, prepare deeds, contracts, leases, wills, and a host of other legal documents.

A large part of a young lawyer’s practice in those days consisted of handling minor traffic cases in “City Court”. After a few months of practice I found myself in “court” several times a week handling traffic and minor criminal cases. The fees were small but I was getting a lot of good experience.

Young lawyers not only handled minor criminal cases but also felony cases including first degree murder. The law requires that a person charged with a felony be appointed a lawyer paid by the state if he is unable to afford one. Most persons, it seems, that were charged with a felony couldn’t pay a lawyer so they were appointed a lawyer by a judge to represent them at trial. The state didn’t have a big budget and young lawyers worked cheap - so they got the job. Young lawyers don’t do this any more as we now have a Public Defenders Office paid for by the state to represent indigent defendants.

I will never forget one morning getting a call from a Superior Court Judge requesting that I see him in his office that afternoon. I had only been practicing a little over a year and had never been to Superior Court. I could not guess why I was being summoned.

I soon found out. Upon being presented to the Judge he politely showed me to a chair and told me that he had appointed me to represent a criminal defendant charged with first degree murder, a crime punishable by the death penalty. I protested mightily and told the told the Judge that I was woefully unprepared to represent the defendant as I had never even seen a murder trial. The Judge said the matter was closed and that I would do fine, and - I would get a fee of $200 from the state.

I was totally overwhelmed by this awesome assignment that had been thrust upon me. I was only 27 years old and I was responsible for my client’s life. A jury was selected and the trial started. The evidence was overwhelming and it was clear to me that my client would be convicted and get the death penalty. I worked out a plea with the Solicitor (now known as the District Attorney) for a life sentence that saved my client’s life.

After this experience I was ready for any legal situation that I might face. Nothing could be more important than a human life. I have never felt unequal to any legal challenge since.

I went on to try a number of first degree felony cases later and even won some. Although I had some close calls, I never had a client that received the death penalty. For a number of reasons related later we no longer handle criminal cases.

TO BE CONTINUED...

As North Carolina attorneys are well aware, our fair state is one of only a few that still cling to the outdated, obsolete and patently unfair doctrine of contributory negligence.1 The courts have failed to do anything to right the ship of injustice so far as this doctrine is concerned. We must look now to the legislature to restore some measure of fair play to the citizens of North Carolina, who, like most Americans, are seeing their rights consistently eroded by insurance companies. For injured North Carolinians, against whom the deck of justice increasingly is stacked, contributory negligence is an unnecessary and unfair obstacle.2

Like much of our law, the United States borrowed the concept of contributory negligence from England.3 In early American judicial proceedings, it was not uncommon, given our short history and lack of established judicial precedent, to look to English common law for landmarks to help us find our way.4

Unfortunately, the decisions in early English cases like Butterfield v. Forrester may have sent us down the wrong path.5 North Carolina, unlike nearly every other state, has continued to plod along this path—despite the fact that the outcome is often unfair.6

The facts in Butterfield may sound familiar to plaintiffs’ attorneys who practice in the area of accident liability. In that case, decided in 1809, the plaintiff was riding his horse near dusk in the town of Derby. The defendant, who was working on repairs to his home, had put a pole across the roadway in front of his house. The plaintiff, who had just left a “public house,” rode his horse into the pole, and both horse and rider fell, injuring the plaintiff. There was no evidence that the plaintiff was intoxicated.

A witness stated that it was not quite dark at the time. It is not known who this mysterious and presumably impartial witness was; nor is it known whether he would have qualified as an expert witness under our standards, or been considered a lay witness. Nonetheless, the witness testified that the plaintiff should have been able to see the pole from 100 yards away had he not been riding so “violently.” Apparently, the witness was able to prove this to the satisfaction of the court, but it is not clear how this was accomplished.7

The presiding judge directed the jury “that if a person riding with reasonable and ordinary care could have seen and avoided the obstruction; and if they were satisfied that the plaintiff was riding along the street extremely hard, and without ordinary care, they should find a verdict for the defendant.” This is precisely what the jury did.8

Upon motion for a new trial, Lord Ellenboro reasoned that “[a] party is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right.”9 It is this concept, honed and enforced with a skeptical eye toward the unfortunate Mr. Butterfield, that through the years has been applied to many an injured party. However, it should be noted that, in addition to the 46 American states that have chosen a path other than contributory negligence, England has abandoned it as well, leaving only North Carolina and three other states to abide by this vestigial remnant of legal evolution.10

Like Mr. Butterfield, plaintiffs’ attorneys today are faced with the often daunting task of overcoming some apparent act of contributory negligence. The practical ramifications of contributory negligence are well documented. Many a North Carolina lawyer has had a case in which the jury answered with an affirmative response the issue of whether the defendant was negligent in causing the plaintiff’s injury. Likewise, it is not uncommon for the next issue taken up to be whether the plaintiff contributed to his or her own injury, and for that question to be answered with a “yes” as well—thus ending the plaintiff’s chances of recovery.

It is often argued that a defendant could be 99 percent at fault and the plaintiff still would not recover for his or her damages in a contributory negligence jurisdiction like North Carolina. As a practical matter, experienced attorneys have seen enough to reasonably conclude that North Carolina juries sometimes overlook some small act of negligence on the part of the plaintiff or do their best to compromise to some middle ground as far as damages are concerned.

This should not be viewed as an argument that our current law works well. Rather it is evidence that juries are sometimes willing to disregard a judge’s instruction, and the law, and wade out into unknown waters in making up their own law—a dangerous proposition for either party. Nonetheless, one cannot fault juries for attempting to reconcile what they perceive as “right” or “fair” with what the law mandates. The problem is that in doing so, they are left without proper guidance and may come away from the experience with a sense that the law is unfair or that the court system simply does not work as it should.

When North Carolina first flirted with contributory negligence in Morrison v. Cornelius, it was more or less the prevailing law of the land.11 Since that time, all but four states have abandoned it, most of those in favor of some form of comparative negligence.12 Comparative negligence allows juries to do legally what some North Carolina juries are doing already; that is, comparing relative fault in deciding the amount of damages in a case.

South Carolina abandoned contributory negligence by judicial decision in 1991. In Nelson v. Concrete Supply Company, Chief Justice Gregory refers in his one-page opinion to a prior opinion by Chief Judge Sanders writing in Langley v. Boyter.13 Sanders opined that “contributory negligence is an idea whose time has gone in South Carolina. It is extinct almost everywhere it once existed. It no longer exists in England, the country of its birth. It survives only in parts of this country, where it is threatened and endangered.”14 South Carolina now utilizes a form of comparative negligence in which juries are allowed to consider relative fault amongst the parties and to allocate it accordingly. So long as a defendant is no less than 50 percent at fault in causing a plaintiff’s injury, the plaintiff is allowed to recover and juries may apportion damages in terms relative to fault. Under South Carolina law, a plaintiff is prohibited from recovery where he or she is more than 50 percent at fault.15 This system allows juries to consider and apportion fault, an idea that is fundamentally fairer than the system at use in our state.

While many have attacked contributory negligence, few have come to its defense. Besides being unfair, there seems to be no sensible rationale that would justify the continued blind adherence to this outdated doctrine. When the Morrison opinion was written, contributory negligence was in wide use.16 That is no longer the case. Comparative negligence is judicially efficient and promotes confidence in the court system by leading to verdicts that are fair and just. Moreover, certain common law doctrines, namely gross negligence and last clear chance, are confusing creatures occasionally used in attempting to overcome contributory negligence. Ridding our courts of contributory negligence would, by necessity, rid the courts of ways of trying to beat it, thus simplifying jury instructions and the overall process.

The decision to allow juries to consider and apportion fault relative to the accident would not affect the admissibility of certain types of evidence. Prohibitions on evidence concerning things like seat belts and collateral sources of payment would remain. When the seat belt rule was enacted, it was the legislature’s intent that evidence regarding whether a person was or was not wearing a seat belt would not be admissible in civil actions. This thinking remains justified in that such evidence is too prejudicial to be considered. More significantly, the failure to wear a seat belt is simply not appropriate to discuss in terms of negligence relative to an accident, because the decision not to wear a seat belt has no bearing whatsoever on who caused the accident. Moreover, other jurisdictions have gone to comparative negligence and correctly maintained the ban on seat belt evidence.17

Consider the following scenario: A plaintiff is on her way home from work, taking her usual route home. After cresting a hill in the roadway, she notices a car in the road ahead of her. An instant later, she realizes that this car is not moving. The defendant is outside the car, with the hood up, working on the engine, while the car sits in the middle of the plaintiff’s lane of travel. There are no hazard lights on the car. There is ample space on the right shoulder onto which the defendant could have pulled his car. Likewise, there are numerous driveways along the road into which the defendant could have pulled his car. Rather, the defendant chose to stop his car in the middle of the road, just over the crest of a hill.

As soon as she realizes the situation, the plaintiff pulls her vehicle to the right and locks up her brakes. She leaves the road, enters a ditch and collides with a utility pole, sustaining significant personal injuries and damaging her vehicle. The defendant’s insurance company and its attorney defend the claim on contributory negligence. Their theory: The plaintiff was going too fast, she was not paying attention, or some combination of the two. The defendant’s expert witness testifies regarding stopping distances, sight lines, and the like. He dabbles in complicated mathematical formulas. The ultimate decision is that the defendant was negligent for stopping his car in the middle of the road to check his oil, but the plaintiff was also negligent. Presumably, she should have seen the disabled vehicle in time to stop or to avoid it without injury. Thus, the plaintiff recovers nothing, and the defendant and his insurance company pay nothing. The plaintiff is stuck with a lingering injury, a totaled vehicle, and medical bills as well.

If this sounds familiar, it is because it is almost the exact same fact pattern as Mr. Butterfield’s horse case back in 1809. It is familiar to the author because this fact pattern is taken directly from a case recently arbitrated before a three-member panel of arbitrators.

The prevailing law of contributory negligence prevented the above plaintiff from recovering for her injuries. A body permitted to consider the same facts under comparative negligence likely would have come to a different conclusion. Erecting a barrier to one’s claim because he or she was momentarily inattentive to the fact that another driver was illegally and dangerously stopped in the road is fundamentally unfair and flies in the face of the underlying theory that people are entitled to have a jury decide cases like these. It is an all or nothing approach that does not allow for a just outcome. Assuming that juries are sophisticated enough to understand certain legal theories but not giving them broad discretion to determine a just and proper outcome is selling them short and doing the state and its citizens an incredible injustice.

It is time for the legislature of this state to do what is long overdue and abandon the archaic doctrine of contributory negligence. Moving to some form of comparative negligence is the only fair way for cases like those above to be decided fairly. Juries are more than capable of apportioning fault and more sophisticated than they are usually given credit for. Since the courts have thus far been unwilling to do so, it is imperative that the legislature revisits the issue of contributory negligence, an unfair concept whose time has come.

1 The four states that continue to recognize contributory negligence as a complete bar to recovery are Alabama, Maryland, Virginia, and North Carolina. The District of Columbia is also a contributory negligence jurisdiction.
2 Morrison v. Cornelius, 63 N.C. 346 (1869), is often cited as the first case adopting contributory negligence in North Carolina.
3 Morrison cites several English cases, including Butterfield v. Forrester, 11 East 60 (1809). Butterfield is considered by most to be the first recorded case applying contributory negligence, although there is some evidence that it saw some use in England prior to 1809. The doctrine was first adopted in the U.S. in Smith v. Smith, 2 Pick. 621 (Mass. 1824). England later followed a trend developed under its law of admiralty and began apportioning fault among the parties as in comparative negligence.
4 Id.
5 Butterfield.
6 Supra note 1
7 Butterfield.
8 Id.
9 Id.
10 Supra note 1. The evolution of English law regarding contributory and comparative negligence is discussed fairly thoroughly in Langley v. Boyter, 284 S.C. 162 (1984).
11 Morrison.
12 Supra note 1.
13 In Nelson v. Concrete Supply Company, 303 S.C. 243 (1991), Chief Justice Gregory’s brief opinion refers to Chief Judge Sanders’ opinion in Langley v. Boyter, 284 S.C. 162 (1984). Langley reasoned against contributory negligence and sought to establish comparative negligence as law. The Supreme Court of South Carolina subsequently quashed the Langley holding (286 S.C. 85 (S.C. June 11, 1985)) and reinstituted contributory negligence until the Nelson holding abandoned it in 1991.
14 Langley.
15 South Carolina is among the states that follow the 51percent bar, meaning that a damaged party cannot recover if he is 51 percent or more at fault, but can recover if he is 50 percent or less at fault. The recovery would be reduced by the degree of fault. Some states follow the 50 percent bar, meaning that a damaged party cannot recover if he is 50 percent or more at fault, but if he is 49 percent or less at fault, he can recover. The recovery is again reduced by the degree of fault. Still other states recognize a pure comparative fault rule, meaning a damaged party can recover even when he is 99 percent at fault. The recovery is again reduced by the degree of fault.
16 Morrison.
17 E.g., South Carolina, Code of Laws of South Carolina, Sec. 56-5-6540.

Denise Bradburd’s husband died two years ago when a silver Camaro going more than 100 mph careened out of control on High Point Road, plowed into his Volvo and pushed his car’s engine into his lap.

Richard Bradburd, a 41-year-old sales manager of an auto dealership, was the victim of a high-speed drag race.
The driver of the Camaro, Tony Maffeo, was found guilty in November 1993 of two counts of involuntary manslaughter and sentenced to five years in prison for the deaths of his wife, Ramona, who was riding with him, and of Richard Bradburd.

Last month, a Guilford County jury awarded Denise Bradburd, 44, nearly $1 million. Jurors said they believed she deserved that much from Maffeo and Jeriel Gaydon III, each in their 20s, who turned a stretch of High Point Road into a race track.

Bradburd’s attorney, Lawrence Egerton of Greensboro, says he hoped for a larger settlement. But he says he is satisfied that his client was awarded $928,750.11 to compensate her for what happened to her husband.

As for Bradburd, the civil award does little to ease the emotional pain of losing a husband and the father of her son Jason.

She will always remember that night. It was May 25, 1993, a night of watching “America’s Most Wanted,” of getting worried about her husband and of driving up to a kaleidoscope of red lights and seeing her husband’s wrecked car on the side of the road. This, in her own words, is her story. – Jeri Rowe

Tuesday, May 25, 1993 It was around 8 p.m. when Rich met Jason and me at All American Sports on Spring Garden Street. Sonny Cashion had been working with Jason on his batting for a couple of weeks. The lesson was over when Rich arrived. He and Sonny talked for a while about how Jason was doing. When we left, Jason came with me in my car and Rich drove the Volvo.

Jay and I stopped for a soda. Rich was going to go to Drug Emporium for my prescription. We all met back at the apartment a shot time after 8:30 p.m. There was confusion with the painkiller the doctor gave me for my wrist. Rich called the pharmacy and straightened it out.

About 9 p.m. an “America’s Most Wanted” special was coming on. Rich asked Jay if he was hungry for McDonald’s or for a sub. They both decided on a sub from Subway. Rich stood in the door and told me he was going to get me a salad. He said, “I’ll get you something good.”

I told him the special was coming on and he said he wouldn’t be long and wanted to watch it too. He appeared happy, smiling and all, that I asked him why he was so happy. He said he didn’t know and laughed.

I asked, “Did you have a good day at work?” he laughed again and said, “No, I’ll tell you about it when I get back. Love Ya.”

I almost went after him to find out about his day. I wish I had.

Shortly before 9:30 I started to feel queasy. I thought it might be the painkiller I had taken. I began getting very nervous and worried about Rich. At 9:45 I got dressed and went into Jay’s room. I told him, “Jay, I am worried about Dad. I don’t like him going out at night and I’m afraid something has happened. Come out to the living room and listen for the phone. I’m going to go look for Dad and make sure he is all right.”

Jay looked at me funny and said, “You’re not going out alone. I’m going with you.” I told him to hurry and put on his shoes because I was leaving right now. We drove down High Point Road. We saw police cars and fire trucks, and we heard an ambulance leaving. We were stuck behind a line of cars. After a few minutes, I pulled the car off the road as far as I could.

“Jay, stay here. I have to see if it’s Dad.” He started to get out and I warned him, “Please don’t argue with me. Stay here.” He ignored me and walked behind me, telling me to slow down. “OK, Jay. Maybe Dad is stuck on the other side of this. I don’t know but I feel very scared.” We saw Rich’s car at about the same time. I yelled at Jay, “Stay there.” I could hear him saying, “It’s Dad’s car. It’s Dad’s car.” I ran to the back of the Volvo and looked at the plate. I saw the dealer tag. I couldn’t breathe. “It’s your Dad’s car. Oh my God.”

I didn’t really remember anything for a few minutes. Then suddenly it seemed as if there were a bunch of people holding me.

A fireman and a man whose name I found out later was Derrick were asking me questions. I could barely hear them. I stood staring at that Volvo and all the blood.
I knew then that it was very bad and that Rich would not be with us anymore. My heart felt so heavy. My ears felt closed yet I knew these people were talking. I just couldn’t hear them. Even with all those people I felt helpless and very alone for the first time in 20 years.

The fireman was telling me to go with Derrick. I remember telling him I don’t even know this man. He said the guy was safe and could take us to Moses Cone Hospital, which is where they had taken Rich. I began asking questions. Jason was asking things too.

“How did this happen?” I asked. “It wasn’t your husband’s fault. Two cars (other than Rich’s) were racing and the one in the white Camaro kept going. They are looking for him now.”

I looked over at the car that had hit my husband head-on. There was no front end left on it. It was still smoking from the fire they had obviously extinguished. The whole driver’s side of Rich’s car was caved in. The air bags had come out. There was so much blood on them. There was glass all over the road. The lights from the police cars and fire trucks illuminated everything eerily. Everything seemed to be moving in slow motion. I kept staring at the Volvo. How did he get out of it? Nothing made any sense.

Derrick got Jason and me back into my car and the police to let him through. He told them, “This is the man’s wife and son; the one in the Volvo. I’m taking them to the hospital.”

Derrick kept telling us that Rich would probably be all right and that the air bags may have saved his life. He told us that Rich was conscious when they got him out of the car, but that his legs were hurt very bad.

I asked him how bad. “Very bad,” he said. Time seemed to be at a standstill. When we got to the hospital emergency entrance I went to the front desk. I had to give them information about Rich Doe. That scared me. I thought he had been conscious. Why couldn’t he have given them his name”?

As I was answering their questions, I kept asking them if Rich was OK. They didn’t know. Then someone came and put Jay, me and Derrick in a small room.
I told Jay to call Tim Gales, our apartment’s maintenance man, and to call his brother Mike, one of my adult twin sons from a previous marriage, who lives in Archdale. I couldn’t remember any phone numbers so I told Jay to call Tim and have him get my phone directory from our apartment. I couldn’t think and I couldn’t sit there. It seemed forever and then Mike was there.

It was midnight when Dr. Matthew Martin came into the room. He introduced himself and told me that Rich was not going to make it. “Your husband’s been hurt very bad. He went into cardiac arrest in the ambulance and was resuscitated. Right now he is on the ventilator. We’re going to surgery, but it does not look good.” I signed papers for surgery and also for them to disconnect the life support in the event that there was nothing that could be done. My heart ached, but I knew Rich would not want to be left on any machines. We had discussed that many times. I just never thought I would have to be in this situation.

I asked to see Rich. Dr. Martin took me in. I saw my husband lying there with his left arm over his head, broken and out of shape. He had never been sick since I’d known him. It was a shock to see him lying there with the ventilator and bags of blood and fluids attached. The only place I could touch him was on his forehead. He was so very cold. It reminded me of when Mama died last year. At the funeral I had kissed her forehead and she was cold.

This was Rich. I felt my breath rush out of me. I told him, “Rich, I’m here. Please don’t give up. I need you. I love you so very much. I’m going to stay here while you go to surgery. You try hard and fight this. I love you.”

I didn’t know if he could hear me. I found out weeks later from Dr. Martin that he had been given a drug that paralyzed him from the neck down. He heard, but couldn’t respond. I looked up at Dr. Martin and he walked out with me. I grabbed the lapel of his hospital jacked and begged him, “Please don’t let Rich die. He’s a good man. Please?”

He looked at me for what seemed a long time and gently told me, “I’ll do everything I can.”

“I’m sorry,” I said. I realized I still had his jacket. I let go and told him I knew he would do his best. A woman took Jay in. I asked Dr. Martin if it was OK for Jay to go. I told him he was only 12 years old. He said it was. When he came out of his Dad’s room, he was crying and his face was white. He looked faint. I don’t know why, but I had to get out of that room. I told Mike, Jay and Derrick I was going outside. The woman said she would watch Jay and stay with him. I wanted to stay with Jay, but I just had to get out of there. Mike and Derrick came with me.

I prayed, as I never had before. Just let Rich live. I will take care of him. Please just let him live. Please, God, help us now. There were a couple of people standing outside the hospital smoking. The woman came over to us and asked if we were involved in the accident on High Point Road. She then said she was the mother of Tony Maffeo, the driver of the car that crashed Rich. There was a man with her. She didn’t introduce him to us.

I told her the doctor had said that Rich would probably not make it. She said her daughter-in-law, Ramona, who was with Maffeo when he crashed, was hurt very bad and was possibly brain dead; they didn’t know why her son had raced that night. She said that Tony and his wife had just gotten married.

It is a blur, but I kept thinking, “It was your son’s fault.” I just didn’t say it out loud. Then something happened because they hurried inside.

A white Camaro drove up and two young kids got out and went inside. They were with Maffeo’s mother. Mike went over and got the license plate number. He gave it to the security guard and then to the policeman. I went back in, got Jay and we all went up to the waiting room by surgery and ICU. Jay fell asleep in the lounge. I went back to the room and began waiting for Mike. The hospital chaplain came over and asked me if there was anyone he could call. I asked him to call Rev. Mark Key in High Point.

Reverend Key got there. Soon after, Dr. Martin came out of surgery. He told us that he had sewn a tear in Rich’s liver. His chances were not good. Rich was still losing a lot of blood. They paged Dr. Martin. I felt my heart sink.

Dr. Martin looked at us, then ran back into surgery. It was close to 2:25 a.m. when he returned.

He said: “He’s dying. Hurry.” The emptiness and sorrow that came over me were unbearable. It was a deep sadness that I had never felt before. Somewhere I would have to find the strength to say goodbye to Rich. I ran next to Dr. Martin.

“Dr. Martin, is he in pain? I don’t want him in any more pain.” Dr. Martin shook his head. He never answered me. Mark and Mike were behind us and I ran alongside Dr. Martin. He was saying, “He was given 15 units of blood, platelets, everything. There is too much trauma.” A nurse met us at the doctor at ICU and said, “He’s not ready.” Dr. Martin told her, “It’s OK. She’s already seen him.”

He hurried us into Rich’s room. I went over to Rich. “Why is his neck so swollen?” I asked. Dr. Martin explained that fluids were collecting in his tissues. I had no idea what he was talking about. I bent down to Rich’s ear and I said, “Rich, I love you. I’ll take care of Jason. Don’t worry. We’ll be together again, I promise. I’ll always love you. Rest, honey.” Again, all I could kiss and rub was my husband’s forehead. His forehead was colder than before. Dr. Martin went over to the ventilator and said, “I’m going to turn this down.”

There were so many tubes and bags of blood, all empty now. Mark said, “Denise, join me in prayer.” We stood holding hands. Mike, Mark and I prayed. Jay was asleep in the lounge. Mike was crying. I was numb. After praying I stood caressing Rich’s forehead while Dr. Martin turned the ventilator down more. Rich’s heartbeat on the monitor was slow and sporadic. Then the line went flat. I looked at the clock. It read 2:59 a.m.

I asked Mark, “Is Rich gone?” Mark replied, “I believe he is, Denise.” He looked like he was about to cry. Mark led us out of the room. I felt like I was leaving Rich behind and I wanted to go back to him. Yet, I knew it was over. (I know now from the death certificate that Rich actually died at 2:35 a.m.)

Dr. Martin was still there with us. He asked, “What will you be doing with the body?” I just shook my head. “I mean, which funeral home will his body be going to?” I just shook my head. “I mean, which funeral home will his body be going to?” I told him I didn’t know any funeral homes. Mark then said, “Is Cumby in High Point all right with you, Denise?” I nodded.

Outside or Rich’s room there was a police officer. He asked me some questions, but to this day I don’t remember what they were. I felt I wanted to run, to hide. I couldn’t breathe and I felt faint. There were so many questions running through my head. Some I said out loud. “How do I go on after being with Rich nearly half my life?” I knew I had said this question aloud. I heard myself. Then I said, “Mark, I don’t know how to do this. I need some air. I’ve got to tell Jay. I can’t think right now.”

In my head I was telling myself: You promised Rich. You’ve got to do this right. No matter what happens you promised Rich that you’d be all right and that you’d take care of Jay. Now do it and do it the way he would have. He isn’t here now and you cannot fall apart. I was outside again. I smoked and tried to pull myself together before I woke up Jay. I wasn’t crying. I didn’t feel I could.

“He’s only 12 years old. I’m so scared.” Again, I was thinking. But I must have said the thought out loud because I heard Mark say, “I’ll tell him.” I shook my head and said, “No, Mark, I have to.” He nodded. “I’ll stay with you.” We went back upstairs. Mike and Mark stayed in the waiting room and I went into the lounge to get Jay.

“Come on, honey.” He didn’t say a word. He just looked dazed and confused. I carried his sneakers with me and he sat in the chair in the waiting room and began putting them on. I bent down to my knees and looked him in the eye. I told him in as soft a voice as I could muster, trying not to let my voice crack, “Jay, Daddy didn’t make it. He died a little while ago.” He just stared at us. Then he got up, but he was not steady on his feet. I wondered if he was awake. We went down the stairs and a nurse rushed up to give me a bag with Rich’s belongings in it. It contained his walled, a $20 bill, his automatic teller card, a receipt from a cash withdrawal; his shoes and a pair of socks that I’m sure were put in the bag by accident. They were cut and had blood and tissue still on them.

Outside the hospital, Tony Maffeo’s mother saw us. She asked, “How’s your husband?” I stopped walking and turned around to face her. The two kids from the Camaro were with her as well as the man I had seen earlier. I stared at her, trying to think. Then I just said, “He died.” My voice cracked. Her face crumbled and she covered her mouth and said something I couldn’t hear for certain. I just stood there staring at them. The man came up to me and hugged me and then she did. Or maybe it was her and then him. I am not sure. I felt stiff. I couldn’t feel for them with any sensitivity. I felt drained. All I could think was: Your son killed my husband.

I looked at the two kids, a boy and a girl. They wouldn’t look back at me. They continued to look at the ground. I walked away. I said to myself (I thought), “I’m sorry. I’m trying, but right now I feel so angry.” Mark said to me, “It’s all right. So do I.” I realized I had spoken out loud again. Mike got into the driver’s seat and Jay in the back. We pulled away from the hospital, and I heard Jay crying. He cried, “Mom, I was so mean to Dad.” And he began to sob. “No Jay,” I said, “All sons and fathers argue. You and Dad loved each other. He knew it, now you know it.”

I guess I said the right thing because his crying seemed to stop, or maybe I stopped hearing him. As the three of us drove, we tried to figure out where we were. We made it, but I’m not sure how. We came into the apartment. Everything was dark. Jay said, “Mom, I’m so tired. Can I go to bed? Come with me and leave the lights on.” I tucked him in and he fell right to sleep. It scared me. I wondered if he was all right. I went to the kitchen and made coffee. Mike called Les in Connecticut, his twin brother, and told him. It was 4 a.m. Then I called Scott, Rich’s younger brother. He said, “Ah, Denise, please don’t tell me that.” He began to cry.

I went into Jay’s room and sat next to his bed while Mike went to get my friend Maryann Crawley to stay with me. I could hear him sleeping. He would screw up confusion. I sat there praying for the Lord to see us through this and to help me be strong for our little guy. “Mom?” Jay looked up with sleepy eyes. “I’m right here.” “Don’t leave me.” I assured him I was going to sit right there with him. I heard his soft breathing that told me he was asleep again. Maryann and Mike came in. I don’t know what she said, but the next thing I remember was the phone ringing and ringing, which it continued to do for days. I began to vomit and cough and choke. I thought my head would explode. Maryann was asking Mike if the doctor gave me anything to sleep or for nerves. He told her no. It was getting light out. She put a cold cloth to my head and we sat drinking coffee and smoking cigarettes. The phone continued to ring. I wouldn’t answer it. Either Mike or Maryann did. Then people began knocking. I sat feeling frozen. I thought: This is all a nightmare, and I will wake up. God, please wake me up. Don’t let Rich be dead.

Thursday, May 27, 1993 It was early when my brother Beau came over. The phone was still ringing. It was the funeral home. Beau told me we had to make arrangements. Beau, Rich’s brother Scott and I went to Cumby’s. I picked out the casket. The man told me that the casket had to be wide because Rich had broad shoulders. I picked out the vault. I never knew you needed one. The final goodbye was going to be at the church, Covenant Methodist in High Point. Rich had been the audio technician for the church and I asked for someone to sing. Rich had liked that so much at the Sunday services. Family and friends would be able to come to the viewing Thursday night, then Friday morning would be family. There would be a church service Friday at 1 p.m. followed by burial at Guilford Memorial Park. We left Cumby’s and went to Guilford Memorial Park and I picked a family plot for Richard and me. We came back home.

I ironed Rich’s clothes for the final time. I picked out his favorite striped shirt, Beau picked out the tie, and I got out the lamb’s wool jacket that I had liked on him so much. We had bought that jacket five years before. He never liked to shop for himself. A pair of brown pants and brown socks made it complete. Beau and I brought the clothes into Cumby’s. I also had made sure that they had Rich’s wedding ring, watch and the silver cross that he always wore. I was thinking that I wished Rich had gotten the watch that we had looked at the week before. He thought it was too expensive. I was going to get it for him on Fathers Day. Now I couldn’t.

On the way home Beau said, “Dee, you have to find an attorney and it needs to be done now.” Back at home, he went through the phone book and placed a call. We got back into the car and he looked at me, “Hon, I hate for you to have to go through this, but it has to be done.” We arrived at Lawrence Egerton’s office. Mr. Egerton asked me, “What can I do to help you?” I replied, “Make sure Tony Maffeo is punished. He killed Rich. Can you try to find the other Camaro?” He told me then that he would see if he couldn’t get a second-degree murder charge against Maffeo. And he would also hire a private investigator to find the other driver.

Beau and I left his office and went to Kmart for clothes for Jay and myself. We had nothing to wear to a funeral. Beau picked everything out for me. The viewing was difficult. Rich’s neck on the left side was still swollen like it was on Wednesday morning. He didn’t look like the man I knew. The nightmares began that night. I see Rich trapped in the car, screaming for someone to please help him. I dream of the hospital and that damn ventilator hissing. I wake up sweating; crying and wishing this would all go away.

The power brokers obsessed with tort reform really have the jargon down. They travel the country with overheated stories about runaway juries and jackpot justice. The way they tell it, sinister lawyers and opportunistic plaintiffs are on the hunt, preying on virtuous corporations, hospitals and doctors in search of that big payout from the lawsuit lottery.

President Bush has been complaining about "junk and frivolous" lawsuits for years. So it's interesting to hear the following from the Center for Justice and Democracy, a consumer advocacy group:

"It may be hard to understand why `tort reform' is even on the national agenda at a time when insurance industry profits are booming, tort filings are declining, only 2 percent of injured people sue for compensation, punitive damages are rarely awarded, liability insurance costs for businesses are minuscule, medical malpractice insurance and claims are both less than 1 percent of all health care costs in America, and premium-gouging underwriting practices of the insurance industry have been widely exposed."

In looking at medical malpractice cases, I've been amazed by the cold-blooded attitude so many people have taken toward patients who have been seriously, and sometimes grotesquely, harmed. Referring to a Wisconsin woman who had both of her breasts removed after a laboratory mix-up mistakenly indicated she had cancer, a doctor from South Carolina told a Congressional subcommittee:

"She did not lose her life, and with the plastic surgery she'll have breast reconstruction better than she had before."

Last week I interviewed a woman in Minerva, Ohio, whose abdominal aorta was somehow ruptured while a doctor was performing a tubal ligation. In a discussion of her malpractice suit, the woman, Deborah Rayburn, said the foul-up was not immediately detected. When it became clear that she was in serious trouble, another doctor was called in. "He ended up cutting me open," she said, "and he clamped the aorta."

Ms. Rayburn, who has two children, was unable to work for 18 months. The surgery left her with a scar from chest to groin, and she said she still experiences frequent abdominal pain.

When Ms. Rayburn filed suit, she said, she was made to feel as though she had done something wrong, as if seeking compensation was in some sense an affront to the system.

As a trial date approached, she said, she felt pressured by all the parties involved to agree to a settlement, which she did. She would have preferred to go to trial, she said, not because she was looking for a big payday, but because all the details of her case would then have come out publicly.

And that is one of the essential points that is overlooked by the tort reform zealots: the problem when it comes to malpractice is not the amount of money the insurance companies are making (they're doing fine) or the rates the doctors have to pay, but rather the terrible physical and emotional damage that is done to so many unsuspecting patients who fall into the hands of careless or incompetent medical personnel.

What is needed is a nationwide crackdown on malpractice, not a campaign to roll back the rights of patients who are injured. This is another utterly typical example of the Bush administration going to bat for those who are economically and politically powerful against those who are economically and politically weak.

Despite claims by the insurance industry, there is no evidence that soaring malpractice premiums are the result of sharp increases in the amounts of money paid out for malpractice claims. And, tellingly, industry executives are generally careful not to say that the tort reforms sought by the Bush administration will result in premium reductions.

This is all about greed. What tort reform will lead to, not surprisingly, is an unwarranted burst of additional profits for the insurance industry, which is why the industry is sinking so much money into its unrelenting campaign for "reform."

It would be helpful if the nation's many good doctors would blow the whistle on the insurance industry and its exploitive practices, and on the members of their own august profession who violate that essential maxim, "First, do no harm."

Chris Shively, a Charlotte construction manager, developed back pain in the 1990s. A neurosurgeon at Gaston Memorial Hospital diagnosed a herniated disk in his lower spine.

The disk was pressing on his nerves, but Shively managed the pain for a few years with muscle relaxers and painkillers. By 1998, however, he needed surgery, and his doctor was nearing retirement.

He was referred to a new surgeon: Dr. Richard P. Greenberg, freshly recruited from Arizona to a neurosurgery practice in Gastonia. As he went for his surgery that September, Shively had no clue about the history of the man about to operate on his spine.

Greenberg was essentially blind in one eye and therefore lacked the depth perception that many experts say is critical for operating in sensitive places such as the spine or nerves. According to court-ordered examinations, he was colorblind in his other eye, a condition that can make it difficult to distinguish between nerves and blood vessels or between healthy and unhealthy tissue.

And Greenberg had a lengthy history of malpractice lawsuits and settlements in Arizona. Six times his insurers had paid to resolve malpractice cases, four of them for $300,000 or more.

Greenberg's vision problems would exclude him from getting a license as a commercial pilot, a bus driver or a commercial truck driver. He would have failed physical entrance exams for the military or police forces. But he had been licensed by the N.C. Medical Board and approved by Gaston Memorial Hospital to perform the delicate and high-risk practice of neurosurgery. He continues to have those privileges today.

The medical board, which licenses and disciplines doctors, has been criticized for being slow to discipline doctors with histories of drug or alcohol abuse. But Greenberg's record shows that multiple cases claiming malpractice can escape the board's attention -- particularly if the doctor practiced in another state.

Several other institutions charged with protecting patients also cleared Greenberg to work, including the medical school in Virginia that trained him in neurosurgery and the medical board of Arizona. He was also given the green light by the hospitals that gave him permission to operate.

Like most of Greenberg's patients, Shively knew nothing about Greenberg's sight or his problems with previous surgeries. If he'd had any inkling, Shively said, he would not have consented to the surgery that he contends Greenberg botched.

"Lord, no," he said in a recent interview. "Absolutely no, no question." Shively, 43, eventually sued Greenberg. Several people, including Greenberg's partner and fellow neurosurgeon, testified in depositions that Greenberg didn't operate on the correct part of Shively's spine. His left foot is paralyzed. He walks with a brace and lives with constant back and leg pain.

Greenberg, 61, is licensed in four states and still has operating privileges at the Gastonia hospital, although he recently left his practice there and has set up a solo practice in Shelby. In an interview, he said that his surgery on Shively was done properly and that Shively did well for 17 months afterward.

Greenberg said he had succeeded at every level: in medical school and in his residency, where he spent six years learning neurosurgery in a hospital setting. He passed oral and written examinations and was certified by the American Board of Neurological Surgery.

He said that neurosurgery was very difficult and required precise work and that trial lawyers were ready to pounce on every case that didn't come out perfectly. He said his insurance companies settled cases he wanted to fight in court.

Greenberg said that he performed 300 to 400 surgeries a year and that his impaired vision had no effect on his surgical abilities.
"I don't think that folks who see out of two eyes can understand that someone who is monocular can adapt and do a good job," he said. "I don't think that it's possible to do an internship and a residency in neurosurgery and be chief resident ... if you are incompetent."

Greenberg's training

Richard Paul Greenberg grew up in Brooklyn, studying biology at City University of New York. He attended medical school in Italy at the University of Bologna, and then did an internship at New York Medical College for a year, records show.

Greenberg went to the Medical College of Virginia in Richmond for his six-year residency, where he chose neurosurgery as his specialty. Greenberg told Dr. Donald Becker, the chief of neurosurgery, that he had been blinded in his right eye at age 3, when another child poked a wire in his eye.

Greenberg assured Becker that he had adapted to the use of one eye and that his brain picked up clues for depth perception, according to Becker's testimony in an Arizona lawsuit.

Becker testified that he had been concerned about the lack of depth perception, as were others on the faculty. But Becker often played squash with a friend who had one eye, and the friend regularly beat Becker.

"When Dr. Greenberg told me that there would be no problem for him, I personally had an orientation to believe him," Becker testified.

Greenberg also got a doctorate in physiology in Virginia, and he told Becker he wanted to be an academic neurosurgeon: He would teach, conduct research and perform neurosurgery. For a while, that looked to be his career path; Greenberg published dozens of medical articles during the 1970s and early '80s.

As was customary for residents in their last year, Greenberg was a chief neurosurgical resident. As a resident surgeon, Greenberg was "mediocre to average," Becker testified.

After teaching at the Medical College of Virginia for two years, Greenberg moved to Tucson, Ariz., in 1983. He taught briefly at the University of Arizona then opened a private practice.

The record in Arizona

Neurosurgery is a high-risk practice in which surgeons operate on some of the body's most important parts, the brain and spine. Complications are always possible.

A number of Greenberg's surgical patients developed problems; 22 filed malpractice lawsuits in Arizona, seven of which eventually ended with payments to patients.

Only one other neurosurgeon in Tucson had a similar record: Dr. Ronald Bernstein, Greenberg's former partner, who was sued 16 times during that period. In 2003, the Arizona Medical Board banned Bernstein from any direct patient care.

By comparison, the other 13 neurosurgeons practicing in Tucson during this period were sued an average of less than four times each, according to a search of Pima County court records.

The number of lawsuits and settlements, even when high, aren't evidence of incompetence, according to Dean Harris, a professor of health-care law and ethics at the UNC-Chapel Hill School of Public Health.

"That's a red flag to investigate, an indictment but not a conviction," Harris said. "I would care much more about disciplinary action taken by a medical board."

In 1991, the Arizona Medical Board investigated 11 complaints of malpractice against Greenberg. The board ordered Greenberg to get a second written opinion before performing certain neck surgeries. The following year, the board wrote Greenberg a letter of concern for the error he made when operating in 1989 on a patient from Willcox, Rosella Karafotias.

Never to polka again

In 1987, Karafotias was a bookkeeper for an accountant. She was also an avid ballroom dancer and in line to become the next state president of the Emblem Club, the ladies auxiliary for the Elks Club.

She had some nagging pain in her right leg, where a nerve was pinched just under the surface of her skin near her hip. She was referred to Greenberg, who scheduled an operation to free the nerve and relieve the pain. But she awoke to paralysis, not relief.
"I woke up and my leg was completely dead," Karafotias said in a recent interview. "I couldn't feel the sheet, which I felt with the other leg."

Greenberg came to see Karafotias the next day. She was sitting in a chair while the sheets on her hospital bed were being changed, she recalled.

"He lifted my leg up by the ankle, let it drop, and left the room," Karafotias said. "He didn't say a word."

Karafotias said that at a later office visit, Greenberg told her a problem with a blood clot had caused the injury.

The nerve that was to be released lies just under the skin, but Greenberg had injured her femoral nerve, which lies deep in the leg and hip, according to the Arizona Medical Board and sworn testimony from a neurosurgeon who reviewed records for the patient in another lawsuit.

Eventually, some muscles in the back of her leg partially recovered. She began to walk with a walker, and now gets around with a cane. She can walk only by throwing her right leg from the hip, she said. Sitting in a chair, she can't lift her foot.
"He crippled me for life," she said.

Karafotias wanted to continue her job at an accountant's office, but she couldn't carry binders and use a cane at the same time. She couldn't walk across the room to answer the phone. She couldn't wait tables at the Elks Club Friday night dinners, where all the tips she earned went to local charities such as the food pantry or Goodwill Industries.

A lifetime of jitterbugs and polkas, dating to her years growing up in Seattle, abruptly ended.

"I just wish I could dance," she said. "I'm 77 years old, and I don't have anything else wrong with me."

Karafotias sued. She can't talk about the resolution of the case, but according to court records from other cases, Greenberg's insurance company settled the lawsuit with a payment of $300,000.

In an interview, Greenberg denied Karafotias' account of his visit the day after the surgery. But he and his lawyer said federal privacy laws prohibited him from discussing the case further.

Damage but no lawsuit

Several of the 22 suits filed against Greenberg in Arizona were not pursued and later were dismissed. But Greenberg's insurers paid to resolve seven of those cases. And not everyone who was injured sued.

Greenberg performed back surgery in 1994 on Donald Holmes, a heavy-equipment operator in Tucson, to repair a disk.
"Hell, it made it worse," his widow, Virginia Holmes, said in an interview. "He got so bad, he couldn't walk."

Greenberg clipped the sheath around Donald Holmes' spinal cord, according to Virginia Holmes and the affidavit of a neurosurgeon who reviewed Holmes' medical records for the plaintiff in another lawsuit. Holmes' spinal column began to leak spinal fluid, one of the risks in spinal surgery.

Holmes went home. His spinal column continued to leak. The incision became infected. Greenberg made frequent trips to the couple's house to try to close the wound, according to Virginia Holmes and the doctor who reviewed the medical records.
"He came and put clamps on," Virginia Holmes said. "Finally he put stitches in to hold it."

After three months, Greenberg put Holmes back in the hospital and operated again. Holmes went home, and the spine kept leaking. A mass 4 inches in diameter accumulated on Holmes' back, and Holmes woke up one morning with his bed drenched in spinal fluid. Virginia Holmes took her husband to the emergency room, where a doctor injected some of Holmes' own blood into his spinal cord to form a temporary clot. The spinal column then healed.

Virginia Holmes said Greenberg came to the home because "He didn't want anybody to know he screwed up."

Holmes died in 2002 after eight years of constant pain, Virginia Holmes said. He was bedridden from the back pain and chronic heart disease and unable to walk in his last four years. The couple considered filing a lawsuit but didn't. "We just took our lumps," she said.

Holmes was shocked that Greenberg was still practicing medicine. "Oh my God," she said. "Oh my Lord."

Holmes' allegations are false, Greenberg said. But he declined to discuss the case further.

A plaintiff digs deeper

In 1993, Dona Jones worked as an office clerk in the public schools in Marana, Ariz. She had lower back pain that radiated into her right leg, and she had some numbness in her right heel. She was referred to Greenberg, who performed lower back surgery.
She emerged from the operation a wreck, Jones' lawyers said in a lawsuit. She had severe, chronic burning pain in her legs and back that she described as "living hell." She began daily use of Percocet and morphine. She lost control of her left foot, which was fine before the surgery. She also lost control over her bladder and bowels, alternating between incontinence and constipation, and she had to catheterize herself to urinate, court records say.

Dr. Martin Cooper, the chief neurosurgeon at the Cedars-Sinai Medical Center in Los Angeles, examined Jones and her medical records at the request of Jones' lawyers. He concluded that Greenberg had damaged the bundle of nerves at the bottom of her spinal cord. Jones had lost a vast amount of blood during the surgery, more than 2 liters. Excessive blood loss interferes with a doctor's vision in the area of an operation.

Greenberg testified in the Jones case that his patients typically lost 2 to 6 liters of blood during these kinds of operations. The average for similar surgeries is about half a liter, according to articles from professional journals such as Spine or Neurosurgery Online. An average adult has about 5 liters of blood.

Greenberg's insurance company eventually settled the case with Jones for $470,001 to $480,000, according to the National Practitioner Data Bank, a federal database that tracks malpractice payments and disciplinary actions against doctors.
It was the seventh time insurers had paid on Greenberg's behalf.

But Jones' lawyers went further. They also sued St. Mary's Hospital in Tucson for allowing Greenberg to practice despite his history of malpractice. They won court orders to dig deeper into Greenberg's and the hospital's medical records.

The hospital identified a number of patients with complications, as did two surgical nurses who examined Greenberg's files. Other patients, such as Donald Holmes, responded to a newspaper ad looking for former Greenberg patients.

In all, the nurses identified charts of at least 70 of Greenberg's patients with paralysis or nerve damage, according to a sworn statement from a surgical nurse at University Medical Center in Tucson. The number didn't include any of the cases in which patients sued. The nurse, who specialized in reviewing cases for complications, was working for Jones' lawyers.

Greenberg said the allegation of the number of injured patients was "ridiculous."

"I am unaware of that entirely, and I think that is grossly inaccurate," he said in an interview.

Five years after Dona Jones' surgery, at a deposition in Charlotte, Jones' lawyers discovered that Greenberg was essentially blind in one eye; they later learned that colleagues at St. Mary's Hospital had known of his vision impairment for years. A judge ordered an independent medical examination, which revealed that Greenberg was also colorblind.

In an interview, Greenberg said he can see red.

The surgical director at St. Mary's said he knew about Greenberg's vision because Greenberg adjusted only his left eyepiece when using microscopic glasses for surgery. A secretary said she was told not to use colored highlighting markers on documents, because Greenberg couldn't see them.

No doubts for doctor

Testifying under oath in Jones' lawsuit, Greenberg said his vision posed no problems for his patients.
"I can see fine, I can operate fine with no problems, and it isn't an issue," Greenberg said. "I can read, and I haven't found [my vision] to be a handicap."

Greenberg testified that he didn't reveal his vision problems to patients: "I don't think that it is relevant." He said in an interview that he told patients about his vision problems if they asked.

When Greenberg applied for and renewed his license with the Arizona Board of Medical Examiners, he was asked if he had any physical conditions that could affect his ability to safely practice his specialty. His answer in 1996: "No." In an interview, Greenberg said he always answered honestly.

"The way the question is worded, it would ask if you have any impairments so you can't practice your profession, I would always say no," Greenberg said. "I can."

Greenberg denied cutting Dona Jones' nerve. And Greenberg and his lawyers continued to say that he was competent. He graduated from medical school and completed his neurosurgical residency, had a license and was credentialed by several hospitals, they pointed out.

Second opinion

Greenberg was backed up by Dr. Barrett Katz, a neuro-ophthalmologist from George Washington University retained by Greenberg in the Jones lawsuit. Greenberg lost his vision at a young age, and his nervous system adapted, Katz testified. "These are false, phony issues, specious," Katz said in an interview. "I know three ophthalmologists who have one eye who perform delicate surgery."

Jones' lawyers took testimony from Becker, the chief of Greenberg's neurosurgical residency. Becker had gone on to become chief of neurosurgery at the UCLA School of Medicine for 16 years. Becker said he had known Greenberg lacked vision in one eye, but he didn't know he was colorblind.

"It's difficult to say what you would have done 25 or 30 years ago, but today I definitely would not admit a person who had one eye and was colorblind in that one eye to a neurosurgical training program," Becker said.

"If it is indeed true that a person has loss of depth perception and is completely colorblind ... I do not think that person should be performing surgery at all," Becker testified in October 2002.

That same month, Dona Jones died of a heart attack, nine years after the surgery and seven years after filing her lawsuit. Her husband, Cleo Jones, later settled with St. Mary's Hospital for an undisclosed sum.

By that time, Greenberg had performed hundreds of surgeries in North Carolina. Among his first patients: Chris Shively.

GASTONIA -- By 1998, Dr. Richard P. Greenberg had settled six malpractice lawsuits in Arizona. His wife had tired of the desert. And he heard from an old friend starting a new surgery practice in North Carolina.

Dr. Steven Gudeman, whom Greenberg had taught at the Medical College of Virginia two decades before, was opening an office in Gastonia, just west of Charlotte, and was looking for doctors with expertise in spinal surgery.

There were many reasons to move to Gastonia, Greenberg would later say in an interview and in depositions. He would have a wider range of clients and fewer elderly patients than in Tucson. It was closer to Virginia, where he did his residency. His wife wanted to be closer to family on the East Coast.

North Carolina offers other advantages. It makes less information about doctors available to the public, and it's more difficult to file a malpractice suit in the state. Greenberg has been sued 22 times in Arizona, with his insurers paying six times by 1998, the largest payment being $450,000.

Greenberg applied for and received a medical license in North Carolina in 1997. On the application, doctors are asked if they have been told in the past five years that they are impaired as a result of a medical condition.

Greenberg, essentially blind in one eye and colorblind in the other, circled "NO."

The doctor said his impaired vision does not affect his surgical skills.

"They are asking about my professional abilities," he said in an interview. "I would say no, I don't have a handicap."

Greenberg said that he had adapted to a lack of depth perception. He compared his vision to that of surgeons who work with an endoscope for surgery in the abdomen, knees or shoulders. They view the area on a TV screen and have no depth perception. "Those people have the same vision as I do," he said.

The N.C. Medical Board didn't know about Greenberg's vision. And board officials won't say what they knew about his malpractice payments in Arizona.

Greenberg was responsible for informing the board about prior malpractice payments when he applied for a license. David Henderson, executive director of the medical board, said the agency opened an investigation of Greenberg after fielding questions about him from The News & Observer.

Henderson said that the board, in general, wants to know if doctors have fully disclosed their physical limitations and malpractice history when applying for a license.

"If we had a doctor who didn't tell us everything, and we can confirm that, the likely outcome would be charges authorized by the board," Henderson said.

Since he started practicing in North Carolina, Greenberg's insurers have settled three more cases -- one in Arizona, two in North Carolina. The medical board knew nothing of those three cases, Henderson said. Insurance carriers were responsible for notifying the board of those payments.

The three settlements brought the total of malpractice payments made for Greenberg to nine.

Background checks

Greenberg took a job at the Neuroscience and Spine Center in Gastonia, which was set up by Gudeman, his former student. They had stayed in touch over the years. Greenberg had listed Gudeman as a reference when he renewed his license in Arizona and when he applied for his North Carolina license.

Gudeman was a rising star. He had been the chief of neurosurgery at UNC Hospitals in Chapel Hill until Gaston Memorial Hospital recruited him in 1997 with an incentive package reported to be worth $750,000.

Greenberg says that Gudeman knew about his vision problems. Gudeman declined to be interviewed for this article, but he did answer questions in a 2002 deposition in a lawsuit against Greenberg filed by Charlotte contractor Chris Shively.
Gudeman testified he knew about Greenberg's blind eye, but not about his colorblindness.

Gudeman said he had checked out Greenberg at a professional meeting by asking colleagues from the Tucson area about him. The response, Gudeman testified, was "just a standard neurosurgery practice."

Gudeman testified that he knew about Greenberg's malpractice history only from what Greenberg told him: "Two or three cases that -- and I can't recall the specifics of them, but cases that seemed like reasonable situations where suit was brought against him. Nothing that seemed out of the ordinary from, from his description of them."

Greenberg had his license, and he had a job. To perform surgery, he had to be credentialed by Gaston Memorial Hospital.
National standards for hospitals hold that a surgeon should have at least $1 million in insurance. And they require the hospital to verify the doctor's competence at the time of application.

Wayne Shovelin, the CEO of Gaston Memorial Hospital, said his institution reviewed Greenberg before giving him hospital privileges.

"Everyone does it," Shovelin said. "Everybody credentials everybody."

Shovelin said he checked Greenberg's references and was aware that Greenberg was blind in one eye and colorblind in the other. What did the hospital do to check his competency?

"Get real, guy. He went through medical training," Shovelin said. "He went through medical school, residency. He's board certified."

Chris Shively's spine

Greenberg joined the hospital staff in the summer of 1998.

Chris Shively, a general contractor who now lives in Charlotte, was scheduled for surgery Sept. 25. Greenberg had confirmed the diagnosis of Shively's previous doctor: Shively had a herniated disk at the "L4-5 level," the cartilage that acts as a shock absorber between the fourth and fifth lumbar vertebrae.

After the surgery, Shively continued to have some back pain, and he saw Greenberg. "His comment was just, 'Well, some people play tennis in six weeks, and some people don't,' " Shively said in an interview.

That made some sense to Shively. He had had a back problem for six years, and it would take time for nerves to heal.

In early 2000, the pain began to get severe. He suspected another bulging disk and made another appointment with Greenberg. He never made it. Standing at a planning table one day at work, reviewing some blueprints, he felt a pop that reminded him of popping a knuckle. He felt his legs going numb. He drove home immediately. Parked in his garage, he used his cell phone to call his wife to come downstairs and help.

His legs were paralyzed, he said.

His L4-5 disk, the disk that Greenberg said he had fixed, had ruptured. X-rays, MRIs and CT scans showed Shively never had surgery at the L4-5 level. Greenberg performed the surgery on a different disk, leaving the herniated and deteriorating L4-5 disk untreated.

"There had been so much bone overgrowth on the herniated disk that when it ruptured, it threw parts all in the spinal column, literally, like blowing a piston in your car," Shively said.

Greenberg was out of town at the time. Gudeman operated twice over the next two days, fusing the vertebrae and, more important, removing all the debris from the spinal canal. Shively began to recover feeling after the second operation, in which Gudeman used an instrument to comb the nerves clean.

Gudeman didn't want to answer Shively's questions about the surgery performed by Greenberg, Shively said. Talk to Greenberg, Gudeman said.

Shively tried, to no avail. "To be candid, I went in and asked, 'What in the [expletive] did you do? What did you do to me?' He wouldn't respond to me. He was just blank. He couldn't say anything."

Going to court

Shively filed a lawsuit in Gaston Superior Court. The allegation was simple: Greenberg had operated on the wrong body part.
When performing the surgery, the "standard of care" -- what any reasonable doctor would do -- calls for a neurosurgeon to locate the herniated disk by touch, mark it with a needle or other metal object and then use an X-ray to confirm it was in the correct location.

Greenberg testified that he had done so, using an expensive mobile X-ray machine known as a C-arm. But there was no record of this in the charts, no mention of the radiologist or X-ray technician, no form ordering the machine brought to the operating room, no billing records for the use of an expensive machine that hospitals charged for by the minute.

Greenberg's dictated report said he located the spot by sight and touch, and it made no mention of an X-ray.

Greenberg's defense did not just rest on whether he took the X-ray. He denied that he ever intended to operate on the L4-5 disk. He had always intended to operate on the L3-4 disk, he said in sworn testimony.

But all information in the charts had Greenberg operating on the L4-5 disk.

In sworn testimony, Shively's lawyers walked Greenberg through 15 sets of medical records: Greenberg's post-surgery dictation, his letters, his office notes, his notes before and after surgery, radiology and anesthesia reports and nursing notes. Every record was wrong, Greenberg testified. He had meant to operate at L3-4. "I made a mistake in dictating L4-5. ... It was an error. ... It should be L3-4."

Greenberg said he learned about all these errors in the medical charts after Shively's disk ruptured in March 2000. When he was questioned under oath in April 2002, two years later, he said he had done nothing to correct the charts. Gudeman, the doctor

who recruited Greenberg to Gastonia, contradicted his colleague when he testified. Gudeman had helped Greenberg on part of the surgery. Gudeman was adamant that Greenberg intended to operate on the herniated L4-5 disk.
And Gudeman said no X-rays were taken in the operating room.

"I remembered asking him where the X-ray was," Gudeman testified. "Dr. Greenberg's comment to me was that he had an educated finger; he just counted up from the sacrum."

Greenberg said in an interview that his former colleague's account was false and said he had no idea why Gudeman testified as he did. Greenberg and his lawyer, Scott Stevenson of Charlotte, said Shively's lawsuit was "specious," even though the settlement was Greenberg's most expensive. They said that Greenberg operated on a diseased disk and that Shively did well for 17 months after the surgery.

Greenberg moves on

Greenberg's insurance company settled the case with Shively in 2003. Meanwhile, another Gastonia man sued Greenberg for malpractice, charging that Greenberg delayed an operation that Greenberg himself noted was an emergency situation. That lawsuit ended in a confidential settlement this spring.

In May, Greenberg left Gudeman's practice.

In June, he set up a solo practice in Shelby called Cleveland Spine and Neurological Surgery. Greenberg said he has applied for credentials at the Cleveland Regional Medical Center in Shelby.

When first contacted by The N&O, Greenberg asked a reporter not to write about him.

"If you mention me in the newspaper, I'm dead meat," he said. "I can't explain away my entire history."

In a later interview, Greenberg said any newspaper attention will hurt a physician. He said he is still considering practicing in Shelby, but he may also retire.

The number of payments by Greenberg's insurers rose to nine with the settlements in the two North Carolina cases. In a similar time period of practice in North Carolina, Gudeman has not been sued; neither has another neurosurgeon partner. Another neurosurgeon who practiced in Gastonia had four suits filed against him in 30 years, records show, one of them filed during the period when Greenberg was practicing in the state.
It's harder to sue in North Carolina than in Arizona. Before filing a malpractice suit in North Carolina, an injured party must first find a North Carolina doctor in the same specialty willing to testify about the malpractice. In Arizona, a plaintiff can wait a year after filing a lawsuit to locate an expert witness.

There's little reliable public information about doctors' malpractice payments in either state. Although the lawsuits are public, most are settled confidentially out of court. The Arizona Board of Medical Examiners lists on its Web site the number of malpractice payments made on behalf of a physician, but the site listed "0" for Greenberg. After The N&O inquired last week, the board changed the number to "1".

North Carolinians who want to check the record of a doctor can go to the N.C. Medical Board's Web site at www.ncmedboard.org. But that site doesn't list malpractice payments by doctors; it only shows whether the doctor has been disciplined by the medical board.

The site shows that Greenberg has a clean record.

Entrusted with tracking doctors

Several groups charged with protecting the public have information about Dr. Richard Greenberg. Here's a summary of what they do and what they did:

* THE N.C. MEDICAL BOARD is a state agency that licenses and disciplines doctors. The board is investigating Greenberg but has no file of discipline on him to date. The board said it knew nothing of the three malpractice settlements paid by Greenberg's insurers since he began practicing in North Carolina in 1998.

The medical board is proposing several changes to protect the public. The board's executive director has proposed that doctors report any malpractice payments when renewing their license annually. Currently, the board relies on insurance companies to report the payments.

The board also plans to require that out-of-state doctors submit a report from the National Practitioner Data Bank when applying for a North Carolina license. The databank report would list malpractice payments made on behalf of the doctor and disciplinary actions taken against the doctor in other states.

* THE ARIZONA MEDICAL BOARD: Like its North Carolina counterpart, the Arizona medical board licenses and disciplines doctors. In May 1991, the board sent Greenberg a letter of concern after Greenberg injured the femoral nerve of Rosella Karafotias. In October 1991, Greenberg entered into an agreement with the board that for a period of three years he would get a second written opinion before performing certain elective surgeries on the neck.

* THE NATIONAL PRACTITIONER DATA BANK is a federal institution that since September 1990 has collected information on malpractice payments and disciplinary actions taken against doctors by medical boards and hospitals. Hospitals and medical boards can access the databank, and doctors can look up their own records. The public can only get information that doesn't identify a doctor; by comparing details of settlements, The News & Observer could identify some of the payments made on behalf of Greenberg.

* A HOSPITAL MEDICAL EXECUTIVE COMMITTEE gives a doctor "privileges," or permission to practice and operate in a hospital. The hospital is supposed to verify that the doctor is competent at the time of his application.
Greenberg has been granted privileges by Gaston Memorial Hospital in Gastonia and several hospitals in Tucson, Ariz., including St. Mary's Hospital and Northwest Medical Center. Greenberg said he has never had his privileges curtailed by any hospital; he now is seeking privileges at Cleveland Regional Medical Center in Shelby.

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