Like a lot of old-fashioned Texans, Alvin Berry is the kind of man who bears the pain and indignities of life with good grace. At 73, Alvin has never been a rich man, but in his youth he managed to maneuver himself from the rolling plains of Central Texas to the industrialized eastern corner of the state, where he worked his way up to maintenance superintendent at a chemical plant in Texas City. After he retired, he moved to a small ranch near Izoro, in Lampasas County, on property inherited by his wife of almost fifty years, Carla Jean. Despite the twinkle in his eyes and his love of a good story, Alvin is not a frivolous man: He wears his snowy-white hair parted in the middle and brushed back, Depression-era-style, is an elder of his church, votes Republican, and, for most of his life, never dreamed of involving himself in something as crazy as a lawsuit.
But Alvin also has, in common with many Texans, a keenly developed sense of fairness, and something happened two years ago that struck him as just plain wrong. He had endured several surgeries: a hip replacement in 1999, which required additional surgery in 2000, and in 2002, a triple bypass, after which he experienced uncontrolled bleeding and heart failure; the doctors had to open him up again right on his hospital bed. Alvin made no complaint; as Carla Jean pointed out, those doctors had saved his life. But then, in 2003, Alvin got some lab tests with disturbing results. He’d been having kidney stones, and now his prostate-specific antigen test showed an elevated score. He didn’t like that; the nurse at the chemical plant had been a stickler for this test, so he knew that a high score could indicate cancer. His family doctor was worried enough to send him to a urologist, and that is when the trouble started. Don’t worry, Alvin recalls the doctor telling him. Kidney stones can elevate your PSA. Go home. Relax.
But five months later, in September, Alvin still had stones, and when he took Carla Jean in for her physical, he asked a nurse to check his PSA. It was up again, to 86 from 12.6. He called his urologist, who, a little more brusquely, told him not to worry. But Alvin couldn’t stop worrying. In November he got it checked again; now his level was 166. “ Then he got all excited,” Alvin says of his doctor, who immediately ordered a biopsy.
The news wasn’t good: Alvin had prostate cancer, and it had already spread to his bones in twenty places. Right away the doctor put him on daily medication and a $4,000 injection three times a year. The money wasn’t a big problem—Alvin had insurance—but he couldn’t help stewing about his predicament. “If he’d caught it earlier, it wouldn’t have been in my bones,” Alvin says. It bothered him too that the doctor hadn’t looked him in the eye when he’d delivered the bad news and that he’d never said he was sorry, even as he gave Alvin, at best, five years to live.
“I’ll tell you what upset me so much,” he says today. “Other than that, I was in pretty good health. We had a ranch out in the country, goats and cattle.” Because Alvin didn’t want his wife to be left alone in the middle of nowhere, they sold the house and part of the ranch and moved into a modest brick home atop a hill in Copperas Cove, outside Killeen. He tried to control his anger, but he felt his final years had been stolen from him: “That doctor thought he was right and the world was wrong. He didn’t give me the opportunity to make the decision of what to do with my life.”
Personally, Alvin had always been against lawsuits. He thought there were too many of them, and he didn’t think people should be able to win multimillion-dollar awards for situations they could have prevented, like the smokers who sued tobacco companies. Alvin had voted for Proposition 12 back in 2003, which amended the Texas constitution to limit noneconomic damages (usually pain and suffering) in medical malpractice cases to $250,000. “I think there are too many frivolous lawsuits,” he says. “But you ought to have the right to sue if you’ve been wronged.”
Alvin sure didn’t think what had happened to him was frivolous, and he didn’t want to give his doctor the chance to be so arrogantly dismissive of anyone else. So on a sunny Saturday in April 2004, he found himself in a Hillsboro coffee shop with a pretty auburn-haired lawyer named Kelly Reddell.
Kelly had good news and bad news. The good news was, in her opinion, that Alvin had definitely been the victim of malpractice. The bad news was that it would probably take up to two years to litigate, and if he won the case, Alvin would take home substantially less than the maximum of $250,000 the state of Texas had decided an injury like his could be worth. “Is this something you are ready to sign on for?” she asked.
Alvin was surprised that someone who seemed as sharp as Kelly could be so misinformed. He had paid attention to the campaign for Proposition 12, and supporters said that damages for the likes of pain and suffering were capped at $750,000, not $250,000. “I voted for it,” he said.
“You voted for it?” Kelly asked, eyeing him levelly.
“Yeah,” Alvin said. He was proud of it. A $750,000 cap struck him as more than fair.
His soon-to-be attorney gave him a sad, patient smile. That $750,000 cap he’d seen advertised on TV and in the papers, she explained, was available only when there were multiple defendants whom a plaintiff could sue for $250,000 each, such as a doctor and a couple of hospitals. Otherwise, the cap on noneconomic damages for a retired person with no income amounted to only $250,000. (Medical