Local Woman Who Represented Self In Med-Mal Suit Gets Second Crack At Allegedly Wayward Doc

The old saw that he who represents himself in court has a fool for a client carries weight with us, having seen the usually sorry outcomes of such endeavors.


But an Arizona Court of Appeals decision filed last week gives a local woman hope that her self-composed lawsuit against a board-certified physician in obstetrics and gynecology remains alive.

The panel unanimously overturned an earlier ruling by a Maricopa County Superior Court judge that dimissed the suit filed in 2009 by Cynthia McShane-Powers against Dr. Bradley Folkestad.

McShane-Powers filed her appeal herself, facing off against the powerful law firm of Jones Skelton & Hochuli, which represents the doctor.

The lower-court judge, Edward Burke (now retired) had dismissed the original lawsuit because the woman had failed to provide a sufficient preliminary expert opinion affidavit as required by law.

Two of the three appellate judges agreed with Burke, but sent it back because he hadn't given her enough time to produce the affidavit. The third judge, Andrew Gould, disagreed with his colleagues about the affidavit, writing in a dissent that it wasn't necessary under the facts as he read them. 

Those facts, as described in the appellate court's 18-page decision, briefly go like this:





In April 1998, Dr. Folkestad performed abdominal surgery on McShane-Powers at Arrowhead Hospital for a hysterectomy and prolapsed bladder. The woman later alleged that a surgical sponge or towel had remained in her body after the surgery (though she wouldn't know it for years), causing her great pain.

The doctor performed a second surgery later in 1998, but the pain allegedly continued. Yet another surgery in 1999 (done by another doc) seemed to resolve those pain issues.

But in 2005, joint pain and migraine headaches began to plague McShane-Powers. Her primary care doctor took x-rays of her sinuses, which, according to the court record, allegedly revealed "some type of gauze/textile."

Subsequent x-rays showed the presence of the gauze in different parts of her body, including (weird!) her foot.

McShane-Powers contends that the gauze was a remnant from the first surgery back in 1998, and had migrated around her body over time.

She blamed Dr. Folkestad, who denied any wrongdoing, claiming that the Arrowhead Hospital nursing staff was responsible to removing the gauze and, in any case, the stuff could have been left inside the woman during one of the subsequent surgeries.

(McShane-Powers didn't sue the hospital or anyone else.)

She claimed that the doctor's negligence was obvious because "doctors are supposed to see that the sponge count is correct" before completing the surgery.

But two of the three appellate judges agreed with Judge Burke (and with Dr. Folkestad), noting that "a surgeon is so occupied with the details of surgery that he does not oversee the sponge count and must rely on nurses for that task."

That said, the majority said that the judge should have given McShane-Powers more time to sort out the expert-opinion affidavit issue.

Judge Gould, who strongly sided with the woman, pointed out that "whether or not this presents a compelling case of medical negligence is not before us...The issue before this court is not medical causation. [The issue is] whether Dr. Folkestad should have left the gauze in Powers' body in the first place."