Donna Wilkerson
Donna Wilkerson

Prior to 2003[1], medical malpractice was big business in Houston and Donna was right in the middle of it working as a litigation assistant for a medical malpractice plaintiff’s attorney in Houston. She enjoyed the excitement of preparing for and going to trial. There was a lot of travel involved and there was a great deal of client contact. In plaintiff’s work, legal assistants worked the case from start to finish. They investigate leads, gather witness statements, and think critically about the information they uncover. Erin Brockovich was her hero. It was the perfect job for a bright, motivated, personable individual like Donna.

Donna loved her boss, Mike Mallia. Mike was in many respects a typical neurotic, demanding litigator. But these qualities worked for Donna and she frequently rose to the occasion. He expected a lot from others, but others got a lot back from him as well as he delivered on that work ethic. Mike’s office was affectionately named “The Bat Cave” as it was surreptitiously located around the corner from a neat and tidy conference room where he met with clients. However, behind the Bat Cave door was a mess with shit piled everywhere.

He’d call Donna, “Where the hell are the pleadings on the case! I know I’ve seen it but I can’t find it!” Donna would walk in and know exactly where to find it. After five years, she worked her way up to litigation assistant and Mike gave her her own office. In many ways, they took care of each other. He was incredibly supportive of Donna’s children as well, which was her number one priority.

The commute from Donna’s home in Santa Fe, Texas, to Houston is about 35 miles, which in and of itself is pretty bad. To add insult to injury, Houston traffic has been ranked as having the fourth worst traffic in the country – so bad it inspired its own blog: ihatehoustontraffic.com. Between the litigation and the commute, Donna often had to be at work from 7:00am to 7:00pm, with a one-hour commute each way. Like many women, the balance of career and family felt like a daily sacrifice. She felt guilty if she needed to leave work early and she felt guilty if she stayed and worked too late. But her income made the difference between a lot of privileges for her family and having very little. It was a no win situation.

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Donna’s sister Pat was diagnosed with Kartagener Syndrome at the age of 20. Throughout the respiratory system, lay little hairs, or cilia, that pulse back and forth to help us breath and resist infection. Pat’s cilia didn’t pulse like they were supposed to and she got sicker and sicker as time went on. It is an extremely rare disease. For every 32,000 people, one of them will have this disease. For Donna, it was Pat. Pat had been chronically sick since birth with frequent bouts of pneumonia and bronchitis. She was born with a collapsed lung. Her life expectancy was limited and as she got older, the infections became more frequent and more debilitating. An infection that might put most of us in bed for a couple of days put Pat in the hospital and eventually the doctors suggested a lung transplant. She couldn’t walk from one end of the room to the other without an oxygen tank. It was as if her lungs were filling with concrete and hardening with every suffocating breath she took.

Pat was unsure about getting the procedure, but Donna, her sister Linda, and Linda’s husband talked her into it. The surgery was a daunting task not likely to be covered by insurance because it was experimental for her condition. When Pat found out that Duke University hospital could do it, she had to move there six months prior to the operation for respiratory therapy so she could withstand the procedure. She had to go up there by herself. No one, including her husband Bill, could take off that much work. If he did, he would have lost his job and thus the insurance that was making her treatment possible. Everyone took turns visiting her in North Carolina to look after her for a few weeks at a time, but her move there was hard for everyone. In a way, they had to lose her in order to get her back.

Pat and Bill had been married for 17 years. Because Kartegener’s causes infertility, their 13-year-old son Matt was adopted. The day after Thanksgiving, Dr. William DeGroot, head of pulmonology at University of Texas Medical Branch in Gavleston called to let the family know that lungs were available and being sent to Duke University Hospital for Pat’s transplant. For 30 years he had cared for Pat, often coming to her house to treat her when she was too sick to travel to his office. Pat, Donna, and the whole family loved him. Pat had the transplant and by Christmas Pat was improving. As Donna and her husband Wayne were getting ready to catch a plane to see her for New Year’s, Bill called.

“Pat’s antibiotics caused her to get colitis and she is bleeding internally. If they don’t do an emergency colostomy, she’s going to die.”

The plane ride was tense and solemn. Pat made it through the second surgery, but each one took a little more life out of her that never came back. Pat’s temporary residence was in a small hotel-suite, studio apartment of sorts, right across the street from the hospital. Donna stayed for two weeks and enjoyed the fact that they were cooped up for a while. It was cold outside and they had to be careful about venturing out because Pat’s immune system was so compromised. A little viral bug that might do nothing more than irritate a healthy person could kill Pat and every time they did go out, Donna would wrap her up in masks and protective gear to create a barrier between her and all of the things that could be the death of her. Despite the effort it took, it was fun for both Donna and Pat. She was beginning to enjoy food again and just be out of the hospital-like quarters that had become her life. As time went on, the combination of embarrassment and feeling like she was a burden became more and more unbearable to Pat. Her recovery was slow, but in about three months, she was doing about as well as anyone would have expected. Even though she still had to sleep with an oxygen tank, she was breathing better than she had in years and was not showing any signs of rejecting the transplant. By Spring Break, Pat came home.

There seemed to be a natural extension for Donna to take care of Pat. In those years after her mother’s death, Pat was her surrogate. She was a mom, a sister and a best friend all wrapped up in one. She was the warm extension of Mama’s existence. Her selfless aura filled the ghostly imprint left by her mother’s absence and Donna was happy to return that love and nurturance in kind. The time spent with her sister was a gift to Donna; a bittersweet notion of a life teetering on the edge of death. If Donna could just care for her enough to make her well then maybe she wouldn’t go falling down that abyss. There is an appreciation that comes from this type of caretaking. It culminates into a lump in the back of your throat that is no more a signal of crying than it is of laughter. It is just a reminder of the tenuous nature of life. Your senses are heightened. You pay much closer attention. Nothing else in the world matters. Layer this on top of losing your mother tragically at the age of 11. It is a powerful thing.

Pat and Donna’s father never visited Pat in North Carolina. He always denied loving his children differently, “I love all you girls the same.” Few parents would outwardly admit otherwise. But Donna knew that if she had been the one in and out of the hospital, he would have been by her side every step of the way. Pat always struggled with the feeling that her father’s love fell short for her. He was hardheaded and never able to admit when he was wrong. This attitude started to build on itself and after a while turned into such a protective stance of denial of the problem that it was nearly impenetrable. Donna always thought this was unfair and as much as she was the beneficiary of her father’s favoritism, in the end it was Pat that she trusted with her deepest struggles.

Once Pat returned to Texas, everyone was hopeful for the first time in a long time. The thinking was that the surgery had bought Pat another 10 years of life expectancy. But three weeks after she returned home, she got sick again. It started as a cold and progressively worsened to pneumonia. She was hospitalized and intensive care for much of her two-month stay.

Donna visited her on an almost daily basis. On one visit, they had a long talk about Donna’s life and the direction she was headed.

“You know you have to promise me that you’re going to slow down.” Pat was fully aware of how Donna’s work as a litigation assistant kept her away from her family and worked her fingers to the bone. “I look at you and I see myself 20 years ago. Your career is really important to you and moving up the ladder is really important to you Donna, but it doesn’t really matter. What matters is your family first and your friends second. All this driving back and forth from Santa Fe to Houston and back, rolling down the highway on two wheels like a bat out of hell to get to Daniel’s practice. You’ve got a babysitter taking him to practice and by the time you show up, it’s almost over and it’s just not worth it. Slow down. None of this other stuff really matters.”

“Don’t talk like that. You are going to shake this like you’ve shaken it before. Everything is going to be ok.”

“No it’s not. I’m dying, Donna. I’m not shaking it this time. I’m 51 years old. You know how people say it’s not the quantity of time, it’s the quality of time. Well, that’s a bunch of bullshit. It’s both. Please promise me you are not going to be a slave to your job for the rest of your life. I want you to try to make that change for me because it’s going to make a big different in your life.”

There is no way to look at someone hooked up to machines, breathing through a respiratory with tubes coming out of them and say, “You’re wrong about that.” Donna made what she thought at the time was an empty promise at the deathbed of her sister. A few weeks later, Pat was gone.

But what Donna thought was an empty promise seemed to haunt her. After Pat’s death, Donna dreaded getting up in the morning for work. What used to be a fulfilling exciting job turned into an exercise. She started to wear the same outfit for days in a row, she didn’t have the energy to put on her make-up, it was as if the grieving she was too young to experience for her mother had culminated into overwhelming grief to the death of her sister. She couldn’t stop crying, not even at work. When she would get to work, she would miss her family so much she had a hard time concentrating on her job. Her home, her husband Wayne, and her children Daniel and Hannah, were the only sense of security she felt and being apart from them terrified her. When someone grieves so deeply, it strikes a reaction in those around them and not everyone can understand. Donna’s friends needed her to “snap out of it” and realize that “life goes on.”[2]

By August, even Wayne had had enough. In an attempt to get away, the family took a vacation to the Dixie Dude Ranch in Bandera, Texas, the same place Pat and Bill used to take their son Matthew. It was close enough to town that Pat didn’t have to fly and she could sit out on the log cabin porch with her oxygen tank and enjoy the scenery with only a few steps to head back inside to rest if she needed to. This was Wayne’s opportunity to plead with Donna, “You either need to go to the doctor or something bad is going to happen with this marriage. You are angry and you think that you’re okay and you think that you’re not depressed, but I’m telling you, you’re depressed and you’ve got to get some help.”

“I don’t need you to tell me that I am depressed. I’m going to be fine.” But she knew she was depressed. She had already tried the easy way. She got a prescription for Paxil, which did the trick superficially – it made her so indifferent it didn’t matter what happened to her. She finally realized what Pat was talking about. For the first time she leaned in to the fact that at any point, without notice, poof. You’re life is changed forever.

The kids and Wayne went horseback riding while Donna had a little time by herself. Texas Hill Country is scruffy. The green from cedar trees and live oaks is different than the green from Sycamores and it is muted and dirty from dust and lack of rain. When the sun sets in the West Texas sky, the color is not much different than other parts of the world. But against the muted green and brown, the color is vibrant, loud, and noticeable. That evening, Donna and Wayne sat on the porch of their Dude Ranch log cabin in a pair of old rocking chairs. The red paint that once covered them had chipped away so long ago the remaining paint was clearly going nowhere. Looking out in that moment of peace and reflection, Donna realized it was time to admit that her mother’s death had made an enormous impact on her and Pat’s death just brought that fact into clearer focus and then magnified it like glass on an ant. It was hot, burning, and she had to get out from under it. Donna had to be present in a place that she couldn’t be anymore and still hold on to a piece of that experience. She had to learn to be with them and be without them, all at the same time. As she sat on the porch with Wayne and her children, she realized this was what Pat was trying to tell her. This is all that mattered….being in that quieted space with family and love and time on your hands. She knew then, she had to make a change.

********

Whatever notion was put in her head that day in Bandera was solidified a few months later when the planes hit the twin towers. No closer than she was from New York City in Houston, Texas, she was no less impacted as the news unfolded. By the time she got to work, in the theater district on the top floor of the Lyric Office Center in downtown Houston, she had the same thought many of us did across the country. What am I doing here? I need to go pick up my kids and go home. Mike gave everyone the choice to go home if they needed to, no questions asked. It was settled, she needed to get home. If ever anything were to happen to her children, it seemed ridiculous to factor in an hour’s drive just to get to them.

By then, her friends knew she was looking for a job and one day one of them called her to tell her about an ad in the Houston Chronicle for a job in Galveston as a judicial assistant. Despite concerns that it might not pay as well, Donna decided to look into it. Galveston was a 20-minute commute. The point person in the court was (name temporarily withheld for confidentiality), a woman Donna had had frequent contact with through her law firm job because Maryanne managed all of the cases that came through the Federal Court. Whenever Mike litigated a Federal case, Maryanne was the person to call if there were any questions about scheduling, the docket, or anything else that might come up. Donna called (name temporarily withheld for confidentiality) and asked her if the job was still open. It was, but it was closing tomorrow. If she was interested, she needed to get her resume’ in by the end of the day. (name temporarily withheld for confidentiality) offered to deliver it straight to Human Resources for her if Donna could fax it to her right away.

After about 10 days, Donna got the call that she was chosen for an interview. There seemed to be divine forces at play. She hadn’t even really worked on her resume’ before she sent it in. She hadn’t applied for any other jobs. She’d been looking, thinking, exploring, but this was the first time she’d reached out for one. Who knows, had (name temporarily withheld for confidentiality) told her the deadline was weeks away instead of the next day, Donna may have put it aside and forgotten all about it until it was too late.

Donna’s first interview was with Steve Lowe, a Human Resource Manager for the court. An older, personable man with thick coke bottle glasses, his job was basically to explain what the job entailed and weed out inappropriate applicants. The next week, Donna got the call. They agreed to match her salary, which in the past year had been quite good due to bonuses Donna received from Mike winning several civil litigation cases that year, including his biggest jury verdict of his career. Steve simply told her to bring them proof of her income and the administrative office in Washington D.C. would match it. Typical of most women in job negotiations, Donna tried to give them an out, explaining that her annual salary for the year 2001 was larger than previous years because of this win, but it didn’t matter to the court. Donna was going to be making more money and be working 20 minutes from home, not to mention all of the benefits a solo practitioner lawyer cannot afford: 8am – 5pm hours, annual leave, sick leave, health insurance, a matching 401K plan, life insurance, vision, dental, long-term disability insurance, and insurance benefits for her husband and children as well. It was just what Pat had wanted for her and she knew she must have had a hand in it.

At the same time, Wayne’s job had been increasingly insecure for years. He had been working as a subcontractor through the union and every time there was a layoff, Wayne didn’t have work. When someone works for the union, they don’t go non-union. In addition, as a subcontractor, work was unpredictable. He was constantly looking for a more permanent job. At some point, he had gotten a job at a Houston pipeline company owned by Enron. There were constant mergers, acquisitions and takeovers that ultimately laid the groundwork for Enron’s fall. Every time there was a buy out, his stock was threatened and his job was in jeopardy. Because of this, the responsibility for health benefits was on Donna’s shoulders and having a reliable, good paying job made all the difference. A job with the Federal court would take the pressure off everyone.

After her background check was clear, it was time to interview with the Judge. She bought a brand new suit, completely based on the fact that it looked like something Jackie Kennedy would have worn and she wanted to look Presidential – like she deserved to work for someone who had been personally appointed by the President of the United States, which the Judge was in 1990. The eight-story Galveston Federal Building is both a Post Office and courthouse. As Donna approached one of the main entry doors, one of the carved eagles seemed to peer down at her, still, the symbol of strength, wisdom and perspective, while remaining the most powerful bird of prey.

The post 9/11 courthouse had tight security and Donna would have to have special security clearance if she were to get the job. Standing in her Jackie O suit, marble walls surrounding her, the security guards escorted her to the 6th floor where the Judge’s chambers were located. Standing in the dimly lit hallway, she pushed a button and a faceless, nameless person buzzed her in. She walked in. The judge’s chambers was exactly what she pictured in her mind. A large bright window lifted the darkness of the hallway, and law books lined the shelves on the wall. The whole experience made her feel official and important, no small emotion for a country girl from Santa Fe, Texas.

The Honorable Judge Samuel B. Kent’s secretary, Gerry, sat at her desk smoking a cigarette, despite the fact that smoking wasn’t allowed in a federal building. The ceiling tiles above her desk were yellow with cigarette smoke, but the Judge smoked cigars and Gerry smoked cigarettes and that was all anyone needed to know. Gerry was a salty, older woman. Not warm or friendly, but matter of fact and to the point, she said. “You’re Donna?”

“Yes.”

The judge’s chambers were set up like a small apartment – a short, narrow hallway to a kitchenette to the left and a waiting room, decorated like a living room, straight ahead. Gerry’s desk was at the far end of the waiting room with wall-to-wall royal blue carpeting and two English style antique settees facing each other. It was a place to entertain people or conduct business – or both. Just in front of Gerry’s desk was the door to Judge Kent’s office. His door was closed. Donna was terrified. Gerry was not the most comforting person in the world and Donna was certain Judge Kent was going to be this very official, professional, stiff kind of guy. All of a sudden, the Judge opened the door. He stature fit the building he was housed in, towering over Donna’s small 5’5” frame and he was sporting a beard. “Hey! You must be Donna! I’m Judge Kent.” He stuck his hand out and shook Donna’s hand and she followed him in his office. His office was a continuation of the fine English antiques of waiting room. Instead of drywall, the walls were done in walnut wood paneling and the ceiling had a gold leaf vine and purple border running the perimeter – all of Kent’s choosing.

“I cuss like a sailor and you know, that’s just somethin’ that if you get this job you just goin’ to have to put up with that.” She never cussed until she met Wayne and now she was just as good at it and it didn’t bother her. His folksy Texas practicality and story telling was comforting.

Kent told Donna about a previous law clerk that was supposed to have been a good friend of his – a friend that helped him through the death of his wife from cancer and someone the Judge thought he could trust implicitly. When this friend had moved on to a new job, he explained, “He went up and told everybody that I drank too much and acted like a fool. I couldn’t believe that he had betrayed me that way, and he had been with me – you know, it would have been a huge problem. Needless to say, we’re not friends anymore. I’m done with him and I told him what a sorry bastard he was for doing that. But anything like that, talking out of turn about this court, I will never let that happen to me again. Disloyalty to the court is an immediate grounds for dismissal.” The court and the Judge are one and the same.

Kent put his feet up on his desk. Donna examined the soles of his boots. He took a puff off his cigar. “The only other grounds for immediate dismissal is how you conduct yourself. Anything that you do to cause embarrassment or bring embarrassment to this court will also get you fired.”

Donna listened to every word, nodded her head and motioned with her body language that she took every word very seriously.

“You have some huge shoes to fill.” As he told Donna about Gerry and the great job she had done, the conversation started to meander to personal stories and experiences that often led back to themes of who he could trust and all of the people that had wronged him unfairly and without cause. “I’m not like those sons of bitches out there in Houston, you know? Those motherfuckers….” He had a rocket docket and got the job done, all by himself and the folks in Houston were pretentious bastards he wanted nothing to do with. He looked out the window. “I wouldn’t go to Houston even if it meant to fuck Jennifer Aniston. This is the only way I’d have it is to be the sole sitting judge in this district court in Galveston.” He laughed to himself and his gaze turned back to Donna. “We got a good gig down here. Life is good down here in Galveston. I am the government. The Emperor of Galveston. You know,” he said, with reflection and satisfaction, “it’s good to be King.”

Donna kind of liked that he was a rebel. It made him relatable. While she had a sense that so much of what he talked about in the interview was completely inappropriate for a first interview with a potential employee, she thought, “He’s a federal judge. He can say and do whatever the hell he wants.” Kent made it absolutely clear that that’s the way it would be too.

Sometime around Thanksgiving of that year, Donna got another call from Kent. He offered her the job and told her he wanted her to start in December. Donna was thrilled to get the job, but was concerned about the start date. Mike had a big malpractice case litigating in December and she knew that leaving at that time would really put him in a bind. She relayed this to Kent adding, “There’s nobody else that knows the case and it would be leaving him in a lurch.”

“Do you want the job?” There was no suggestion of her having time to think about the offer, let’s talk again in a few days, or if you need more time its’ okay. Kent certainly had no concern for Mike Mallia’s situation. It was as if Kent never heard that part of the conversation. It was now or never and it was the best job offer Donna had ever gotten. She knew it and he knew it.

After a pause, Donna said, “Absolutely. This is great news. I would love to come work for you. I’m so excited. Thank you so much. I’m really, really happy.” And she was.

“Okay. I’ll see you on December 17.” And click. Kent hung up.

Gerry called Donna the next day to get Donna’s address “Gerry, I just got to thinking I don’t believe I can start the day Kent wants me to because I have a trial that I’m committed to and I’m pretty sure that it’s going to go and I just don’t think that’s a good week. Is it possible we could move my start date forward one more week?”

“I don’t know, Donna. I’ll talk to Kent about it and I’ll call you back.” About an hour later Donna picked up the phone. “Kent said absolutely not. Besides, I am retiring and you are going to have to shadow me for a week before I go to even know how to do this job.”

It was not in her DNA to leave someone in a lurch. Quitting two weeks before trial was like pulling out someone’s car battery and expecting them to race the Daytona 500. She felt horrible about it. But this was the job of a lifetime. She drafted a letter to Mike to tell him the news. For a week, he didn’t speak to her. Then he walked in to Donna’s office. “Donna, I can’t even tell you, this is an opportunity for you that you can’t turn down. As bad as I hate to lose you, you know I got to let you go. I was pissed off at first with this trial coming up, but it’s the opportunity of a lifetime.” With the weight of anger off his shoulders, “Besides, it’ll be good to have a connection down there in federal court,” and he managed a smile of encouragement.

 

[1] In 2003, the state of Texas enacted a $250,000 cap on medical malpractice claims for non-economic damages or what most of us think of as “pain and suffering.” Since then, it has rarely been financially advantageous for lawyers to pursue malpractice claims. Defendant attorneys usually represent insurance and hospital corporations with deep pockets who can bury a private practice attorney with so much discovery work that the margin of financial recovery is too slim to risk the temperamental nature of juries, who tend to be biased towards doctors. In the old days, they were worth the risk because the payout for one egregious case could pay for what might have been lost in a smaller, riskier case. Since 2003, an egregious, even fatal departure from the standard of care might only cost the doctor about a year’s salary. On the other hand, it costs the law firm attempting to litigate it an easy 3-6 months worth of work and expenses which often include expensive experts and a great deal of personnel time. Given that an attorney’s take is about 30-40% of the settlement, the cost/benefit analysis rarely makes sense anymore.

 

 

[2] This only served to deepen Donna’s attachment to her grief and loss and see those statements not as helpful gestures, but as the distancing words of an uncomfortable group of people with their own issues around grief and loss. Statements like this help the person making them create distance from their own fears. Watching someone grieve this intensely is sure to trigger all kinds of defensive responses in others. The human capacity to be in denial about mortality is an amazing psychological process. Without it, we wouldn’t strive for more or take chances in life. We would instead become despondent. So in order to preserve this denial, we have to distance ourselves cognitively and emotionally by insulating ourselves from people and experiences that remind us of just how fragile we are. Unfortunately, for the griever, they need people around them who can at least tolerate their grief and at best join with them in it so that can feel a sense of attachment to others as they let go of their attachments to those they have lost.