Legal Review & Commentary: $25 million malpractice verdict against hospital, cardiologist to be reduced to $2 million pursuant to state caps

By Jonathan D. Rubin, Esq. Partner Kaufman Borgeest & Ryan New York, NY

Elizabeth V. Janovic, Esq. Associate Kaufman Borgeest & Ryan New York, NY

Barbara K. Reding, RN, LHCRM, PLNC Clinical Risk Manager Central Florida Health Alliance Leesburg, FL

News: A jury awarded $25 million to a 41-year-old man who experienced a severe heart attack only a few months after being given ibuprofen to treat his heart condition.

According to the law firm that represented the man, it is the largest ever medical malpractice verdict in the state of Virginia and the largest personal injury verdict ever handed down in the county. Pursuant to state law, it is expected the award will be reduced to less than a tenth of the original amount because of a state law that caps medical malpractice damages in the state at a maximum of $2 million.

Background: In January 2010, the plaintiff, then 37 years old, experienced a sudden onset of chest pain that radiated to his jaw and left arm. Plaintiff was treated at two hospitals before the defendant cardiologist examined the results of tests to determine whether arteries near plaintiff’s heart might be blocked. The defendant cardiologist diagnosed plaintiff with a mild infection of his heart that could be effectively treated with over-the-counter medication. The defendant cardiologist also stated that plaintiff’s coronary arteries were normal and clear of any disease.

A mere three months later, plaintiff suffered a massive heart attack. After the heart attack, another cardiologist, working in the same practice with the defendant cardiologist, reviewed plaintiff’s initial visit records from January 2010. Plaintiff claimed that the second cardiologist disagreed with the defendant cardiologist’s original diagnosis.

Plaintiff sued the defendant cardiologist and the hospital where the cardiologist treated him, and he alleged negligence and medical malpractice. Plaintiff claimed that prior to the heart attack he ran his own lawn care business, was athletic, and coached his kids in sports. Following the heart attack, plaintiff stated he could not run to first base without getting severely winded. He also claimed to be at a severe loss for breath after a long conversation or a walk up two flights of stairs.

At trial, plaintiff’s lawyers claimed that he will likely require a heart transplant within five years. They also claimed there is only a 50% chance plaintiff will survive 10 years after a heart transplant, thereby setting plaintiff’s possible life expectancy between 52 to 56 years of age. Plaintiff’s experts contended the January tests showed severe blockages in his arteries that should have required a stent to open the arteries. The defense experts, however, contended the blockages seen in January were far less severe and did not necessitate drastic action.

The jury deliberated for three and a half hours before reaching their verdict. The jury found the defendant cardiologist and defendant hospital negligent and awarded plaintiff $25 million. (Editor’s note: Information on how the award was split was unavailable.) According to the law firm that represented the man, it is the largest ever medical malpractice verdict in the state of Virginia and the largest personal injury verdict ever handed down in the county. Pursuant to state law, it is expected the award will be reduced to less than a tenth of the original amount because of a state law that caps medical malpractice damages in the state at $2 million.

What this means to you: While the monetary award in this case might be reduced pursuant to Virginia law to a cap of less than 10% of the original verdict award, such a reduction does not diminish the punitive effect the initial $25 million jury finding for plaintiff demonstrates. Based on evidence presented at trial, the jury determined plaintiff was entitled to recover damages suffered as the result of negligent action. The $25 million verdict indicates not only compensatory damages were to be restored, but substantial punitive damages were awarded as well.

In reviewing the arguments as provided in the case background, several significant factors are noted. First and foremost, the presentation to two hospitals of a young adult male complaining of radiating chest pain of sudden onset warrants thorough assessment, evaluation, and monitoring to ensure a positive outcome for the patient and diminish the risk of misdiagnosis and/or inappropriate treatment. A young adult male presenting with sudden cardiac symptoms requires risk containment. Initial evaluation and treatment at one hospital prior to transfer to the second hospital, where the defendant cardiologist examined coronary artery test results, supports the need for careful cardiac evaluation, monitoring, and treatment services for this type of patient.

The cardiologist then determined based on test results that plaintiff’s coronary arteries were within normal limits with no signs of an active disease process. An over-the-counter medication is recommended for what is thought to be a mild heart infection. This is an interesting pharmacologic therapy approach for a heart infection. At trial, the testimony of a partner in the defendant cardiologist’s practice states the partner later reviewed the initial records following the patient’s myocardial infarction event and disagreed with the defendant cardiologist’s original diagnosis. This presents an interesting twist with regard to expert witness testimony. The utilization of the testimony of a doctor who is in the same practice as the defendant might or might not enhance expert witness credibility based on whether the partner is in agreement or disagreement with the defendant practitioner. One can only surmise such a diagnosis disagreement between the two partners in this case had an impact on the jury with respect to proving negligence on the part of the defendant cardiologist; i.e., if your own partner disagrees with you, then your initial diagnosis must be presumed to have been in error. This could serve as proof the defendant deviated from the standard practice of competent fellow professionals.

In addition, experts for the defense testified “blockages seen in January,” at the time of the initial diagnosis, were “far less severe and did not necessitate drastic action”. Blockages? The defendant cardiologist previously informed the patient his coronary arteries were normal. There was no mention by the cardiologist to the patient of any blockage at that time; an over-the-counter medication was the only treatment prescribed for the single diagnosis of a mild heart infection. Score yet another point for the plaintiff’s attorneys in proving a breach of the duty to care and the subsequent injury of a massive heart attack three months later in a 37-year-old claimed to be caused by a departure from the standard of care.

As for proving injury, which might include but is not limited to loss of income, physical harm, pain, and suffering, plaintiff claimed a change in lifestyle and loss of physical capability and endurance following his heart attack. It was also claimed his life expectancy is now greatly diminished as a result of the massive heart attack and subsequent heart damage. A 37-year-old father facing a potential heart transplant within five years, followed by a potential 10-year post transplant survival rate of 50%, understandably evokes sympathy in members of a jury. A sympathetic jury tends to award significant punitive damages.

At the center of this verdict are plaintiff and his family. Two million dollars or $25 million, legal cap or no cap, together they will need to adjust to the physical and financial changes in their lives and relationship as a result of the finding of fact regarding negligence. As for defendant practitioners and hospitals, in any case with cap or no cap, whether a verdict for the plaintiff or the defense, positive patient outcomes and risk management strategies must remain priorities in the practice and delivery of healthcare today.

Reference

CL12000094-00, Hampton Circuit Court, Virginia (2013).