Justice for All?

By Dana Gentry

Wednesday, Nov. 12, 2008 | 5:17 p.m.

Anya Shapiro Duke is a survivor. She escaped her native Russia on foot during the Nazi invasion but she never thought the real fight of her life would consume what should be her golden years.

Duke says she was blinded by a medical procedure in 1991. The medical screening panel found no probable merit to her claim but Duke sued Dr. Roger Simon, who she says failed to perform a diagnostic ultrasound.

Judge Nancy Saitta (now a Nevada Supreme Court Justice) threw out the case five minutes into Duke's opening statement in 2000, citing Duke's obligation to state in opening statement what evidence will follow. No such obligation exists in Nevada law and the Supreme Court reversed and remanded the case in 2003.

Judge Kenneth Cory dismissed the case next on a technicality and again Duke, representing herself, prevailed on appeal to the Supreme Court. She goes back to District Court, this time before Judge James Bixler, in April 2009.

We asked Dr. Simon's attorney, David Mortenson, to join us but he declined. However, he did send the following statement:

-Anyone who wants to enter into a discussion about this case should read the pleadings and briefs from the Medical-Legal Screening Panel in 1994 to familiarize themselves with the medical care. It was mandatory to present to the Panel which was instituted to attempt to stop frivolous cases from proceeding. Their opinion was in favor of the Defendants, Drs. Simon & Parker ("No Probable Malpractice"). Mrs. Duke will claim that, like everything else, it was all lies and rigged. The Panel's judgement was not binding and a Plaintiff could still proceed to District Court, which she did. NRS states that if the Plaintiff doesn't prevail, they are responsible for all subsequent costs if the Panel ruled for the Defendants. That is why there is a judgement for costs in place for defending Dr. Parker as he was dismissed from the case in 1998. This judgement remains unpaid.

- The plaintiff will state her situation is unique as she can't get a lawyer. In fact, she's had multiple attorneys. They've all dropped out once they learned about the case. What does it say when you can't find an attorney for a malpractice case?

- The plaintiff will claim she's a victim of the "Legal Abuse Syndrome." Google it and you'll find the only person using the term is her local therapist, Karen Huffer, who invented it. Who is the victim here - the plaintiff who proceeds against all professional legal advice, or the defendant, a highly respected local sub-specialty physician who tried to prevent a blinding condition from taking its natural course? 5 - 10% of retinal detachments simply can't be repaired, and Mrs. Duke's detachement was one of them.

- The plaintiff's expert witness was provided to her then attorney by none other than Mr. Howard Awand. Without the last minute involvement of Mr. Awand, the case would have been dismissed in 1995. He now refuses to come to Nevada to testify aganst Dr. Simon.

Thanks, Mr. Mortenson.

-It's true the panel found no merit to Ms. Duke's claims. As Mr. Mortenson knows, the screening panel was abolished by the 2002 Legislature which found it was not effective.

-Ms. Duke does not claim her situation is unique. To the contrary, Ms. Duke says she knows of other cases where attorneys have stipulated away important evidence, often rendering the case unprofitable to subsequent attorneys. What does it say when you can't find an attorney to take a malpractice case? Sadly, it often reflects the value of the case to the attorney (or lack thereof) rather than a lack of merit.

-Any journalist (and probably any attorney) can tell you about the person who perceives himself as a victim of injustice. Too often they are dismissed by the media and opposing counsel as crazy.

The triggering event, be it alleged malpractice or a child custody dispute, often becomes almost secondary to the perceived injustice in court. They are consumed with their litigation and certain the system is mired in conspiracy. As Jon points out on tonight's program, in a small town like ours it's often much too easy to connect the dots, warranted or not.

The fact Ms. Huffer is the first to coin the phrase seems irrelevant. Call it what you will, the syndrome exists.

-Mr. Mortenson says Ms. Duke's expert witness, obtained through Howard Awand, is not available to testify.

Maybe he's talking with the FBI.