Case never should have gone to trial, lawyer says

The $78.5 million verdict against Pottstown Memorial Medical Center in Philadelphia could have been avoided. Letting the case go to a jury was a mistake for the hospital, says Herbert S. Subin, JD, partner with the law firm of Subin Associates in New York City.

The $78.5 million is not necessarily too large considering the devastation wrought on the entire family of the injured child, he says, but the hospital probably could have gotten away with paying less.

"A lot of times nobody has the guts on the defense side to say 'hey, we have to pay tens of millions of dollars because we really caused that much damage,'" Subin says. "Sometimes the people involved would rather have it to go a jury because they can pin all the blame on a crazy jury, rather than being the one who decided that a large settlement was appropriate. The risk is that you get a monster verdict like this."

The jury placed all the blame and liability on the hospital and none on the physician, who during the trial pointed the finger at the hospital and claimed that his incorrect diagnosis was caused by the hospital providing faulty equipment. That testimony could be expected from a physician who did not want to be blamed for such a tragedy, but Slayden says the verdict does not necessarily mean the jury believed him entirely. Nonetheless, the jury did not want to make a lone physician liable for even part of such a huge award.

"That seems to me to be a jury that didn't want to stick a doctor with such a huge verdict because it could bankrupt him, so they nailed the hospital with it," he says. "You may have a situation where they decided this kid deserved a lot of money and that verdict would have a lot more impact on the doctor than the hospital, so they went for the deep pocket. That does happen."

The doctor must have been the plaintiff's most compelling witness, Subin says.

"I'm sure they turned the doctor into a secondary victim by having him testify that he was provided antiquated equipment by the hospital and he did the very best he could, but was horribly misled," Subin says. "He probably told the jury how terrible he felt when he realized that the faulty machinery had led him astray."