Our Services: Screening cases
Damages and Awards in Medical Malpractice Cases
 The
voice at the other end of the phone says, "My mother
was terribly hurt at the hospital. Will you take my malpractice
case?" How should the attorney or the office staff
taking this call respond? Medical malpractice cases are
among the most complex and costly in the plaintiff personal
injury law firm. Careful screening of these cases will avoid
much fruitless work and expense. This article will focus
on the evaluation of damages as well as recent award trends
in medical malpractice cases.
One model of screening the
medical malpractice case suggests that the attorney should
evaluate the four components of liability in their order:
duty of the healthcare practitioner to the patient, breach
of this duty, proximate causation of damages and damages.
A more useful model is to first evaluate damages, before
even addressing duty, breach of duty and causation issues.
Given the estimated $25,000-$100,000
cost of bringing a medical malpractice case through five
or more years of litigation before trial, it is essential
to understand the damages alleged by the plaintiff. The
severity and permanency of the injuries must both be considered.
Some of the questions to ask when the phone call comes in
as described at the beginning of this article include: What
happened to your mother? Who said she was injured? How old
is your mother? Is she working? Did she lose work as a result
of the injury? Have the injuries been permanent? What is
her current condition? What was her health before the incident?
High damages cases
Significant injuries
are relatively easy to identify during the initial screening.
An analysis of plaintiff verdicts in medical malpractice
cases1 showed that between 1994-2000 the most
frequently claimed injury was other, followed by death.
Birth injuries, cancer diagnosis, delayed treatment, (incorrect)
diagnosis and medication errors resulted in the highest
verdicts. The highest median award was given for severe
brain injury ($4,280,000). Median award refers to the middle
value or the norm among awards arranged in ascending order.
The median compensatory award
in 2000 was $1,000,000, up from $700,00 in 1999.
Low damages cases
Clearly the low to moderate damages cases outnumber
the significant damages claims. These claims can eat up
the resources of a law firm, with sometimes disappointing
results. Low damages cases tend to fall into several categories:
Podiatric or chiropractic:
Unless the person has a loss of a foot or part of afoot,
or develops paralysis as a result of chiropractic manipulation,
these are low damages case.
Minor treatment injuries:
Minor treatment injuries, such as suturing a wound and leaving
behind glass or embedded objects, or loss of a toe, are
low injury cases.
Eye cases: Eye cases include the common allegation of a bad outcome
after cataract extractions. Eye cases that are difficult
to defend include loss of vision due to prolonged use of
corticosteroids, failure to diagnose glaucoma, failure to
diagnose a penetrating foreign body, and failure to diagnose
an infection. Eye records are challenging to interpret and
therefore can complicate the screening of these types of
cases.
Dental cases: Dental
cases include loss of a tooth or nerve injuries following
extraction of a tooth or surgery. In teeth cases, the expenses
of the treatment must be balanced against the expenses which
would have been incurred had the malpractice not occurred.
Osteomyelitis of the jaw after dental surgery is an example
of a high damages claim for this category of malpractice.
Like eye records, dental records are usually difficult to
read.
Surgical scarring or bad results from plastic surgery such as a face lift or tummy
tuck may occur. The jury may feel little sympathy for these
patients. An exception may be deformity of the face caused
by failure to diagnose a postoperative infection or an error
in surgical technique. The pursuit of these claims is frequently
hampered by the difficulty in finding affordable plastic
surgeons willing to act as expert witnesses.
Burns, unless they are to exposed parts
of the body such as the face or hands, are low value cases.
Time limited damages with
no permanency such as a brief overnight admission to the hospital following
a medication error, or anger over the treatment provided
by the healthcare provider are low damages cases.
Bad outcomes in very sick
people are difficult cases to litigate.
Damages of significant intensity (such as death or amputation)
may lose their impact when the patient was critically or
terminally ill. These cases are time consuming and costly
to screen, given the costs of obtaining the volumes of medical
records and the time needed to wade through the medical
chronicles. These cases may additionally be complicated
by the difficulty in convincing the plaintiff that while
the outcome was severe, the case would be complex and expensive
to pursue, with no guarantee of success.
Bad outcomes not affected
by missed or delayed diagnosis such as terminal cancer
or chronic incurable diseases and difficult to litigate.
A delay in diagnosis may have had no impact on the patient’s
prognosis. These cases require careful screening to determine
the nature of the condition and the availability of effective
treatment.
Moderate damages
Moderate damages
cases, as defined by the typical size of the award, in the
last decade resulted in median verdicts ranging from $355,000-$668,000.
These included (in order of lowest to highest median award):
negligent supervision, negligent surgery, nonsurgical treatment,
lack of informed consent and medication errors. Medication
errors resulted in a median award of $668,000, the highest
of the moderate damages awards.
If the case meets the criteria
of having sufficient damages to warrant further investigation,
consider using a medical professional to screen the case
to look for plausible explanations for the damages. Determine
in advance if the screening professional will act as an
expert witness for you or will be in the role of gatekeeper.
Since the screening professional’s hourly fees are
usually lower than those of an expert witness, it is economical
to use the screener to identify the cases without merit.
The screening professional (doctor or nurse) should be experienced
in recognizing the valid cases and not hesitant to identify
the claim without merit. Although identification of the
value of the damages in the claim is a vital first step,
the screener cannot stop there. Recognition of the critical
link between proximate cause and damages, knowledge of the
applicable standard of care, and the ability to identify
the plaintiff who lacks jury appeal are equally important.
Med League Support Services Inc.
provides screening of medical and nursing malpractice cases
and expert witnesses.
Contact our office
for more information.
1. Shannon, J. and Boxold,
D., Medical Malpractice: Verdicts, Settlements and Statistical
Analysis, LRP Publications, Horsham, PA, 2002.
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