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April 01, 2012

Sidebar: Saints

In a world of war, hatred, and suffering, goodness exists.

Kenneth P. Nolan

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Like pilgrims approaching Lourdes, clients trek into our imposing offices searching for a cure. They arrive when disaster, disgrace loom, hopeful that our words, our wisdom will provide healing. Through our guidance, we remove this burden and make it our own. We insist that clients follow our direction, for if they do, the gloom that envelops their lives, their businesses will surely become bright, soothing light.

Rarely during contested litigation do we seek our clients’ advice, consult with them on strategy. We are the professionals, after all. They are civilians—uneducated in law, procedure, trial. During these intense battles, we concentrate on discovery, depositions, the latest appellate court ruling. Clients are ignored, for we have a motion on and we must persuade the judge to rule in our favor.

On occasion, after a case ends and the file is closed, I hear a sound, glance at an image, and former clients come to mind. I remember those I represented and wonder whatever happened. In those too rare moments of reflection, I realize that some clients radiated goodness and generosity. They endured the horrifying accident, the unexpected death, the endless suffering with grace and resolve. During the lawsuit, I was too frenzied, too focused on winning. Yet, now that these clients are but a distant memory, I realize how much they taught, not through posturing or bombast, but through quiet acts of heroism.

This is one such story.

Shortly after I was admitted to the bar in 1978, a classmate, Eddie Lopez, referred his cousin who believed that her daughter’s severe disability was caused by the doctor’s negligence during birth. I interviewed the family, obtained the medical records, and sat with a nurse who guided me through the labor and delivery chart. We hired experts who agreed with the validity of the claim. After a few years of contentious litigation and with a jury in the box, we settled. My first million-dollar win.

As soon as the stipulation of settlement was placed on the record, the
partner trying the case disappeared. I searched the courthouse until he eventually reappeared and mumbled something about the bathroom. The next day, as I thumbed through the Daily News, I saw an article about the Gonzalez settlement, with a picture of our clients. A similar article appeared in the New York Post. The partner merely shook his head and laughed when I asked how the press learned of our victory.


Deluged by Calls

Our office was deluged by calls from families with similar handicapped children. This was the early 1980s before obstetrical medical malpractice became a full-blown specialty. In addition, in those ancient times, the New York statute of limitations for infants began when the child turned 18 and ran to age 21, so the pool of potential plaintiffs was large.

I visited many a home, sat on couches with plastic slipcovers, heard about the lengthy labors, doctors arriving at the hospital late, the mother ignored for hours before undergoing a frenzied forceps delivery with doctors shouting orders and a nurse rushing with the newborn to the neonatal intensive care unit. So I learned obstetrics—the techniques of delivering a baby, how to read fetal monitoring strips, and the signs of fetal distress. One case involved the Ryan family whose son was a teen when they came to see me sometime in 1983.

The Ryans were from the West Indies with proper manners and dress, along with lilting accents that I had trouble understanding because I was used to the universally acclaimed language known as Brooklynese. Like most immigrants, Mr. Ryan worked two jobs while his wife remained home to care for their five children including their severely handicapped son. Johnny couldn’t talk or walk, but that didn’t deter the Ryans from providing unconditional love and care.

I first met Johnny when I climbed the stairs of the family’s small, brick walk-up in a crime-ridden, mostly burned-out neighborhood. Johnny was 16 and large, sitting in his wheelchair. Whenever I first met a child like Johnny with twisted limbs and spastic movements, my initial reaction, truthfully, was one of selfishness. Yes, my heart ached for the child and drove my determination to help the family. But I was secretly relieved that this burden was theirs, not mine. Evil thoughts would slither into my mind: Maybe it would have been better had these children—images of God—never survived the botched delivery. I hated these feelings and vowed to banish them, to keep them from darkening my soul, but they stubbornly returned whenever I sat in a similar living room taking notes and glancing at a child who will never sing a nursery rhyme.


Evaluating the Merits

By the time Mr. Ryan contacted me, I was proficient at evaluating the merits of the claim. So I went through my routine of obtaining records, consulting experts, including a pediatric neurologist who would examine the youngster to detail damages and to solidify causation. These exams occurred at the doctor’s office on Long Island, so I would pick up my clients at their home, pile into my car, and drive to the suburbs.

Johnny was nearly fully grown, and getting him up and down the narrow tenement stairs was not easy. Mr. Ryan’s solution was to carry him by placing him over his shoulder like the proverbial sack of potatoes. Whenever Johnny left the apartment—to go to the doctors, to the store, to sit on the stoop in the sun—Mr. Ryan, not a large man, lifted his son and his 140 pounds onto his shoulder and labored up and down those many steps. All without complaint and with inherent cheerfulness.

We litigated Johnny’s case against an experienced defense lawyer. If he had money, he would tell you, and if it was within his authority, he would settle. If you wanted a dollar more, he would try it. No bravado, no lengthy negotiations. After a deposition, he told me he could make an offer, and in 1986, we settled. With part of the proceeds, we structured the settlement so that the Ryan family would receive a monthly stipend for the rest of Johnny’s life to ensure that funds would always be available for his care.

Happy with the result, I immediately turned to other cases, my young family, and the maelstrom that made those years pass much too quickly. I heard from the Ryan family once or twice over the many years. The structured payments were overseen by the Guardian Department in the bureaucratic Surrogate’s Court, and when issues about access to the funds periodically arose, I assigned them to those more patient in my office (which was everyone).

I recently received a call from Mr. Ryan telling me in a grieving voice that Johnny had died. With an estate to open, I met with Mr. Ryan—older now, but still in shirt and tie—and some of his children. Mr. Ryan’s sadness and that of his children was palpable. I had expected words of sorrow but also a flicker of relief—that after 44 years, the family would take comfort in God’s goodness and be grateful that their burden of caring for Johnny—all day, every day—was over. There was none of this heartless sentiment.

“Johnny was a blessing, Mr. Nolan. A blessing,” said one sister as the others nodded in agreement. “He was.” This was from a woman who devoted her life to her brother, caring for him—along with her parents—since she was in her teens. This was her vocation, her only job ever. Her daily existence was to love and look after her brother. She didn’t have a cell phone, wasn’t on Facebook, and didn’t need a Prada purse.

“The doctor said that people like Johnny usually don’t live this long. But he did because we took such good care of him,” she added proudly. And now she will continue her works of mercy by taking care of her parents who are in their 80s. But not alone. Her siblings will be there as well, even the grandchildren who have the same Ryan DNA—generosity and love.

I was ashamed, of course, of my cynicism, my weakness. I saw only sacrifice while they saw humanity. They eagerly showed me Johnny’s small room and the lift that was used to get him in and out of bed. “Wasn’t he so handsome?” they remarked as they pointed to his photo. They said that he made them happy when he would reach and hug them if they sat close to him. He made them laugh when he would slap their hands away if he didn’t want something. I saw a wheelchair; they saw a person with dignity and worth.

They never complained about life’s unfairness during the litigation 25 years ago and didn’t complain now, except to state that Johnny was taken much too soon. They will miss their son, their brother, their blessing.

In a world of war, hatred, and suffering, goodness exists. It may be difficult to notice as we focus on the material, on the celebrated. But goodness is there, often silent, often hidden. It’s on bucolic family farms and rough inner-city streets. Look for it, find it, practice it. It will change your life.


Kenneth P. Nolan

The author, a senior editor of Litigation, is with Speiser, Krause, Nolan & Granito, New York City.