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Tom McLennan

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In 2009, during his sophomore year of junior college, Tom McLennan fractured his big toe in a kickboxing accident. Usually, big-toe fractures get a cast and a toe plate and properly heal. But Tom’s primary care physician recommended no treatment at all. The average big-toe fracture takes four to eight weeks to return to normal function; Tom was still in pain a year later.  

He switched to a new primary care doctor and was referred to an orthopedic clinic, where the in-house foot specialist told Tom and his mother, Connie, that the pain was unlikely to resolve without invasive treatment. She recommended an experimental surgery to replace the fractured toe joint with a tissue implant. The implant was made of tissue from a horse’s heart. 

Tom and his mother later learned that there were numerous conservative routes the specialist should have taken – things as simple as modified shoes, compression, or physical therapy — before considering experimental surgery. 

Tom and Connie were not warned of the risks of this experimental surgery. They didn’t know that several similar soft-tissue fillers had been reported to provoke a negative reaction, where the patient’s own immune system rejected the tissue, and it never healed. And it was not until after surgery that Tom learned this was an off-label use of the product – it had never been approved by the FDA, and sales were stopped a short time later. Surgeons had publicly commented on abandoning its use due to issues of tissue rejection. Tom’s doctor didn’t disclose any of this. 

After the surgery, Tom and Connie were shocked when they saw an x-ray that showed the specialist had removed a much larger amount of bone than expected. No doctor they have consulted since has heard of the removal of so much bone for this purpose, or of using horse tissue in this part of the toe. 

Tom agreed to the experimental surgery because he was desperate for pain relief. But after the surgery, the pain was worse than ever. The specialist prescribed him 1,400 narcotics pills in just 90 days. In 2010, he entered the first semester of his junior year as a university transfer student in constant pain and dazed from the cocktail of prescribed painkillers. 

Three months after the surgery, the tissue hadn’t knit his toe back together and he was still in extreme pain. The specialist told Tom the swelling might never resolve. She just recommended more painkillers. 

Exasperated, they found another specialist. He told them Tom had to have the implant removed. To fuse the bones in his toe at this point, they would need to use a bone graft taken from his hip. 

After hearing this news, Connie began contacting attorneys on her son’s behalf. They all agreed that negligence had occurred, but they still would not take her case. She could not understand why. After a month of searching, one lawyer finally explained that the 1975 cap on quality of life damages in cases of medical negligence makes many cases impossible for lawyers to take on. The $250,000 cap prevents college students like Tom, who don’t have lost income because they are just starting their lives, from finding legal representation even in cases of life-altering medical negligence. 

Ten years after the kickboxing incident Tom continues to have pain, and his life is still enormously impacted. He has undergone several additional surgeries and had multiple infections. He suffers from PTSD related to these experiences. 

Connie believes MICRA should be reformed because medical practitioners should be held accountable. No one should go through what her son has – all for a simple toe fracture. She remembers what the lawyer told her: that the cap left victims like her son without any real remedy. 

Californians will have the chance to vote on the Fairness for Injured Patients Act on the November 2022 ballot. The Fairness Act would update California’s medical malpractice damage cap for nearly 50 years of inflation, and allow judges and juries to decide fair compensation in cases involving catastrophic injury or death.  Learn more about this campaign for patient safety.

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A state law that hasn’t changed since 1975 caps compensation for families harmed by medical negligence. The limits apply to lost quality of life, even if a patient loses a leg, a child, or is disabled for life. Click on the picture of the map to find patients by the State Senate Districts they live in.

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