This blog looks at medical malpractice jury verdicts and explains/speculates why the verdict came out as they did. This medical malpractice claim in New York involved a lawsuit by a woman in her 60s against a radiologist for the failure to diagnose breast cancer. The case settled for $1.6 million.
Value of Breast Cancer Misdiagnosis Claims
An appellate court in Florida affirmed a defense verdict in a medical malpractice lawsuit. Plaintiff alleged that the doctor was negligent in failing to diagnose and treat the decedent’s cervical cord compression, a condition which eventually caused the man to suffer from quadriplegia.
Plaintiff made four arguments on appeal. The one I found interesting was the idea that the doctor’s lawyer made an “impermissible burden-shifting argument” on the issue of the doctor’s negligence when he argued that the plaintiff failed to present testimony from any neurosurgeon that he would have done anything different in treating the patient. Florida law is clear that a plaintiff is not required to prove that the subsequent treating physician would have acted differently in order to prevail at trial.
Certainly, under Maryland and Florida law, lawyers may not in opening or closing statements make comments that mislead the jury as to the appropriate burden of proof. But the court disagrees (as do I) that this is what the doctor’s lawyer was doing in his closing statement.
Medical malpractice verdicts are at historical new lows, according to Public Citizen. Their new report tracks malpractice verdicts from National Practitioner Data Bank (NPDB). The NPDB began tracking medical malpractice payments in 1990. The number of malpractice payments made on behalf of doctors in 2010 was the lowest on record. The total number of payments made on behalf of doctors fell to 10,195 in 2010; down from a high of 16,566 in 2001.
No one is suggesting that there is 33% less medical malpractice than there was in 2001. Clearly, doctors and malpractice insurers are winning the public relations war, which is leading to lower verdicts and more damage caps. Will the tide turns again? Historically, the public’s tolerance for injustice to victims of malpractice and injury generally waxes and wanes.
Last week, Rod Gaston culminated a long fight for our clients by obtaining a $2.5 million verdict in a wrongful death medical malpractice case in Montgomery County.
I’m honestly more proud of this letter from the client (which I’m publishing with permission), than the verdict:
Dear Rod,
A rare medical malpractice trial where the issue was on damages: the hospital admitted fault and the jury awarded a modest – by medical malpractice trial standards where the injuries are usually catastrophic or the loss of a loved one – verdict of $250,000 which was affirmed on appeal in South Carolina.
The defendant made an interesting argument on appeal, arguing that the trial court should have excused “all potential jurors who owed a debt” to the hospital. The trial court removed the four venire members against whom the hospital held civil judgments but denied the hospital’s request to remove others whose debts to AnMed were in default. It is incredible how many people owe debts to the hospital. I can see a juror or two. The hospital asked the appellate court for a bright-line rule to categorically exclude from jury service all prospective jurors who are in debt to a party in the lawsuit.
Appellate courts have bright-line rules. So they relied on the catchall “Does any member feel like they have any interest, sensitivity, bias, or prejudice which would prevent you from being a fair and impartial juror in this case?”
Plastic surgery malpractice cases are extremely difficult to win not because malpractice in plastic surgery is rare but because it is incredibly difficult to prove. We have never taken a plastic surgery malpractice case and probably never will.
So credit is due to a New Jersey plaintiffs’ medical malpractice lawyer who won a jury verdict in an eye surgery case. The case involves a blepharoplasty, eyelid surgery that basically makes your eyes look younger.
Defendant’s medical malpractice lawyer showed the generosity of spirit for which malpractice defense lawyers are known, when he pointed out in a statement after the verdict that the woman had plastic surgery on 10 previous occasions. What exactly is this lawyer’s point? You just lost a case – a zero offer case, by the way. After getting beat, do you really have to go after the plaintiff? What exactly is the point that is made here? She had 10 good procedures so what is one bad one? She should not be getting more plastic surgery? Than why did this doctor agree to do it? Oh, who cares? The important thing was to try to publicly embarrass the Plaintiff. Well, then, mission accomplished.
A hospital leaves a 4-inch-long piece of plastic tubing inside an infant boy at birth. The child may have a permanent injury. What should the verdict be? How much is that medical malpractice lawsuit worth?
If a potential client called our law firm and asked that question, I would say I have absolutely no idea. There are just too many details you would need to know. To start, does it mean the child may have an injury? Do you know? If you don’t, what are the odds the injury is permanent? Another incredibly important question: was the child in pain and if so, for how long? What are the past and expected future medical bills? Why did this mistake happen? Who made it?
The first paragraph is a fact pattern of a case that was decided recently in Washington State. The jury awarded $257,000 in this malpractice lawsuit against the hospital.
Good doctors commit malpractice less often than bad doctors. But sometimes, very meritorious medical malpractice lawsuits in Maryland are brought against very good doctors who made a very unfortunate mistake.
In Florida last week, an appeals court affirmed a $2.15 million verdict that has ballooned to $4.3 million because the case is 17 years old. The verdict was against a hip specialist who has operated on the likes of New York Yankees slugger Alex Rodriguez, Miami Dolphins quarterback Jay Fiedler, golfer Greg Norman, hockey star Mario Lemieux, and Olympic skater Tara Lipinski. Pretty impressive group.
But in this case, a young woman cannot walk without a cane because the doctor gouged the smooth lining of her hip joint trying to repair an injury in 1997.
An Illinois woman who lost her unborn baby and a small intestine after being admitted to a hospital was awarded an $11.5 million judgment Tuesday by a DuPage County jury. The jury deliberated for about five hours before awarding awarding the mom $10.5 million for her injuries and $1 million for the death of her unborn child (presumably her husband was a plaintiff in this claim as well).
The hospital named in the lawsuit showed real class after the verdict was announced:
We are disappointed with the verdict, but continue to respect the jury system. [The Hospital] is committed to providing the finest care to all of its patients. We wish the best for [the plaintiff and her husband].
Maryland Medical Malpractice Attorney Blog