JANET & TOXIC SHOCK SYNDROME

Shortly after passing the bar, I became involved in representing a teenage girl that had contracted Toxic Shock Syndrome (TSS) through her use of tampons. Two years later, my then boss and now retired former partner, Jon Kidneigh, and I tried the first TSS case to go to trial in the country against Procter & Gamble before Judge Finesilver. Thereafter, I became a co-founder of Kidneigh & Kaufman and continued to represent women with respect to their TSS claims.

Sometime in 1985, “Janet” (not her real name) came to my office and told me she thought she had been stricken with TSS a year earlier, but that both her doctors in Colorado Springs had arrived at a different diagnosis. Janet had nearly died in the hospital and, even after she went home, several of her toes fell off as the end result of her illness. I felt that I had to do something and I promised Janet I would look into her case.

After I obtained Janet’s medical records, I noted that both doctors had thoroughly considered TSS as being the cause of her problems, but had definitely ruled it out. Yet going through her records in detail made it equally clear to me that she had all of the signs and symptoms necessary to support a diagnosis of TSS.

I then set appointments to meet with each of the doctors at their offices in Colorado Springs. When I sat down with the first doctor I showed him each place in the records where there was a sign or symptom that matched up with the Centers of Disease Control’s (CDC) definition of TSS. When I finished, he readily agreed that he had been wrong and indicated he would write a report changing his diagnosis to TSS, which he did.

I did the same thing with the second doctor, yet he still would not change his mind even though he admitted that the medical records disclosed everything needed to meet the CDC definition of TSS. In his opinion my client had two additional symptoms that were incompatible with TSS.

Upon returning to Denver, I spent several days researching the medical literature and was able to find articles where the authors had concluded that the women they had treated had TSS, although they had also suffered the additional symptoms my client’s doctor was concerned about. I sent the doctor these articles and met with him again.

The result was that he changed his mind and became a stalwart advocate on Janet’s behalf, writing a report retracting his earlier diagnosis in favor of TSS, and never cracking once in a 10 hour deposition taken by the tampon manufacturer. This caused the tampon manufacturer to give up the fight and Janet ended up receiving a fair settlement for all that she had been through.

As an epilogue, I handled a case in the mid-1990’s for a woman, “Deborah” (not her real name), who had contracted TSS. Deborah told me that her case had recently been dropped by a fairly well-known attorney and that her statute of limitations would run out in approximately 2 weeks. In calling her former lawyer I learned that he had discharged her because he felt after having her case for nearly two years that it would be difficult to prove she had TSS since her doctors had not made that diagnosis and there was an issue of misuse.

I decided to take Deborah’s case and I called the attorney for the tampon manufacturer and was able to get him to agree to toll the statute of limitations for three months to see if we could reach a settlement. Then, after acquiring all of Deborah’s medical records and confirming from my review that my client did, in fact, have a case of TSS, I was able to obtain a good recovery for her without filing suit.

"past success cannot guarantee future results"