Are recent big ED verdicts the wave of the future?

Jurors will award higher damages if displeased by ED conduct

A California jury awarded $11 million to a man because ED physicians failed to diagnose an infection that led to stroke and paralysis.1 A Rhode Island family was awarded $21.5 million in an ED malpractice case involving a woman's complications from pneumonia.2 A Tampa, FL, jury awarded $30 million to a woman who lost both legs and most of her hands due to negligent ED care after complications from surgery.3

These large ED verdicts, all from 2007, may seem to be bellwether cases that portend a change in jury opinions. On the other hand, a recent report says that ED claims have decreased, with claims per 100,000 visits dropping to 3.4 in 2006, down from 5.8 in 2001.4

It's hard to speculate what twelve individual jurors were thinking when they rendered a plaintiff's verdict, says Dwight W. Scott, Jr., an attorney with the health care division of Houston, TX-based McGlinchey Stafford. Jurors could be sending a message to health care providers, punishing the perceived wrongdoers, or trying to award amounts sufficient to sustain the injured party for a lifetime.

"Without specific knowledge and post-verdict interviews of the individual jurors, it's impossible to say," says Scott. "It is quite possible that the jurors intended a message to be sent. However, every case is different."

What makes for a big verdict?

All medical negligence claims against EDs generally involve the same elements—that the physician owed the patient a duty, that the standard of care was breached in treating the patient, and that the breach caused the patient to suffer damage. There can be several elements that play into a large award, but the single biggest driver is the amount of the plaintiff's economic damages, says Blake Delaney, a health care attorney in the Tampa, FL, office of Buchanan Ingersoll & Rooney.

Juries often are asked to make an injured person "whole" by rendering an award sufficient to provide the necessary levels of care for that person for the remainder of his/her life. "Care over a lifetime is expensive," says Scott. "Imagine a 30-year-old man now paralyzed due to the alleged negligence of a health care provider. That man will likely require some level of round-the-clock care for the rest of his life."

Damages involving a permanent disabling injury to a young child at birth also may include care over a lifetime. "Jurors are likely to be asked to provide an award sufficient to sustain the child's health care needs for a long, long time," says Scott.

If the plaintiff is going to require medical and/or nursing care for many years as a result of the ED physician's negligence, the award can get "very high, very fast," says Delaney. In the above $11 million award case, the patient was paralyzed as a result of an ED physician's conduct.

The cost of around-the-clock nursing care, combined with a life expectancy of, for example, at least 15 more years, can easily produce a verdict in excess of $5 million without even accounting for pain and suffering or other non-economic damages.

"Another example is a case in which the plaintiffs, parents of a baby who was allegedly injured in the ED, are demanding in excess of $70 million in economic damages, based primarily on the fact that the child has a life expectancy of approximately 70 years," Delaney says.

The reality is that cases in which patients die often produce lower verdicts than cases in which patients live, albeit having suffered paralysis or some other life-altering condition, says Delaney. "Another factor that can drive large economic damage awards is the amount of money the plaintiff would have been expected to earn for the rest of his life," he says.

An award can escalate very quickly, for example, if a plaintiff's projected loss of income is $100,000 per year—over 20 years this would add $2 million to the verdict.

Two other factors that can play into a jury's award are the ED physician's level of carelessness and the amount of sympathy for the patient. An ED physician does not need to have intentionally injured the patient to be liable for medical negligence; merely failing to act reasonably is sufficient. "However, in cases where the ED physician does act intentionally, or at least recklessly, juries will frequently show their displeasure with that conduct by awarding higher damages," says Delaney.

Sometimes these higher awards are in the form of punitive damages, but other times juries simply award a high amount of non-economic damages, such as for pain and suffering, as a form of "quasi-punitive damages."

In the $21.5 million Rhode Island case, for example, the victim had gone to the ED three times in four days, each time complaining of symptoms, before eventually dying.2 "This is appalling conduct to an average juror, who would expect the patient to be taken care of the first time, or at worst the second time," says Delaney. "But when a patient must voluntarily return to the hospital a third time, the implication is that the hospital really didn't want to treat this person."

Had this patient died during her first visit, even if the death were preventable, the jury award probably would have been less, he says. The case also is a good example of the way in which sympathy for the plaintiff can increase non-economic damages. "The death of an immigrant woman in her 30s with three young children is a much more sympathetic case than the death of a 65-year-old homeless man," says Delaney.

How much goes to the patient?

"The unfortunate reality of lawsuits is that the attorneys' fees and costs can consume much of a multimillion dollar jury verdict award," says Delaney. "At the end of the day, a plaintiff who has just been awarded a $10 million verdict might take home only $6 million."

Unless statutory or constitutional provisions provide otherwise, a typical medical negligence attorney's fee runs from 33% to 40%. The costs of the lawsuit are added on top of that, and they depend largely on how extensive the expert testimony in the case was. Some cases might incur only $20,000 in expert witness costs, while others might incur $250,000.

The amount received by the plaintiff would not be subject to taxation, but if the award is intended to cover economic damages over a long period of time, then the money will be redistributed through a structured settlement so that the plaintiff does not actually receive the full amount upfront. "A structured settlement broker will typically work with a financial institution to hold the money and distribute it in certain increments at certain intervals over a certain duration," says Delaney.

However, a growing number of states are capping non-economic damages awards, which would limit the role of the ED physician's carelessness and the amount of sympathy generated by the plaintiff in a jury verdict award. "But even in those states that have non-economic caps, there is never a cap on economic damages," notes Delaney.

State legislatures have attempted to limit liability in medical malpractice matters to certain levels of financial recovery. "Typically, however, claims for future economic damages such as lost income and future health care needs are legislated to be outside of those statutory caps," says Scott. "Therefore, large verdicts are still possible, even in 'tort reform' states."

References

1. Case number 05CC12937, Superior Court for Orange County, California.

2. O'Sullivan v. Stengel and Newport Emergency Physicians Inc., Superior Court for Providence, Rhode Island.

3. Case number 03-CA-007481, Hillsborough County Circuit Court, Civil Division.

4. Larcher G. 2007 Hospital Professional Liability and Physician Liability Benchmark Analysis. Aon Global Risk Consulting, Chicago, 2007.

Sources

For more information, contact:

  • Blake J. Delaney, Buchanan Ingersoll & Rooney, 401 E. Jackson St., Suite 2500, Tampa, FL 33602-5236. Phone: (813) 222-8137. Fax: (813) 222-8189. E-mail: blake.delaney@bipc.com
  • Dwight W. Scott, Jr., McGlinchey Stafford, 1001 McKinney St., Suite 1500, Houston, TX 77002. Phone: (713) 335-2127. Fax: (713) 520-1025. E-mail: dwscott@mcglinchey.com