In the late 1980s, we did a 50 state survey through lawyers around the country. Today, they still exist, in some instances. This one is a 50-State Survey of Damage Caps and the Collateral Source Rule.
Comparing mesothelioma cases damages in the UK to similar damages in the US usually produces some amazement. A January 13, 2017 UK trial court ruling is online here, and well worth reading for comparative purposes. The case involves a successful entrepreneur, now in mid-70s, and fated to die of pleural and peritoneal mesothelioma from tradesman work on boilers in his early twenties. The court delayed ruling on damages, which plaintiff’s counsel at Leigh Day characterized as a win for plaintiff in a February 8, 2017 blog post. The arguments about economic loss are all about numbers in the low 6 figures. As described in paragraph 19 of the order, “[t]he figure of £90,000 was agreed as the correct assessment for pain, suffering and loss of amenity.”
A new study highlights an irony as to the value (or not) of damages caps in medical malpractice cases as a tool for adjusting the supply of physicians in geographic areas or medical specialities. The new study finds no empiric support for the caps, with high confidence intervals. There is irony in the report because defense side “tort reformers” often are the first and loudest in demanding “proof” through reliable long term epidemiological studies.
The report is online: Damage Caps and the Labor Supply of Physicians: Evidence from the Third Reform Wave, Am Law Econ Rev (Fall 2016) 18 (2): 463-505. doi: 10.1093/aler/ahw009 (paywall). the abstract explains:
Nine states adopted caps on non-economic damages during the third medical malpractice reform wave from 2002–05, joining twenty-two other states with caps on non-economic or total damages. We study the effects of these reforms on physician supply. Across a variety of difference-in-differences (DiD), triple differences, and synthetic control methods, in both state- and county-level regressions, we find, with tight confidence intervals, no evidence that cap adoption leads to an increase in total patient care physicians, or in specialties that face high liability risk (with a possible exception for plastic surgeons), or in rural physicians.”
Advocates of damages caps in medical malpractice cases seldom, if ever, confront the gross unfairness of leaving on one person the economic burden of a medical error. That risk instead can and should be spread to many since actuaries say they can predict the general patterns of medical treatments and error rates, and can provide even more precise predictions if provided with more detailed information. See, for example, this 2009 article in Contingencies (ISSN 1048-9851), which is published by the American Academy of Actuaries, 1100 17th St. NW, 7th floor, Washington, DC 20036. One of the authors is “Kevin L. Bingham, a senior manager at Deloitte Consulting LLP in Hartford, chairperson of the Medical Malpractice Subcommittee and an official spokesperson for the American Academy of Actuaries in Washington.” The other author is John Lucker, , who “is a principal at Deloitte Consulting LLP in Hartford and national co-leader of Deloitte’s Advanced Quantitative Services Practice (Data Mining & Predictive” [Services]).
In view of those realities, occasionally I publish examples of high value medical malpractice verdicts and/or settlements. Here’s a new example from Cook County from the July 1, 2015 issue of the Chicago Daily Law Bulletin (paywall). In light of the educational point of this post, I take the “fair use” liberty of republishing the full article in case anyone wants to cite it or fact check it with the involved lawyers.
“$23M settlement for childbirth injuries
By John Flynn Rooney
Law Bulletin staff writer
A suburban hospital and doctor will pay $23 million to the estate of a mother who suffered a stroke after childbirth and is now a quadriplegic.
The settlement is a record in Illinois for a birth-related injury to a mother.
Cook County Circuit Judge James N. O’Hara entered an order on Friday approving the settlement — the bulk of which will be paid by Westlake Hospital in Melrose Park — and dismissed the lawsuit involving the estate of Faviola Ochoa.
On June 21, 2010, Ochoa, then 34, was admitted to Westlake in labor.
Following blood testing performed shortly after Ochoa’s admission, she was diagnosed with HELLP syndrome, a severe form of pre-eclampsia — a dangerous pregnancy complication consisting of high blood pressure and high levels of protein in her urine.
HELLP syndrome causes ruptured blood cells, elevated liver enzymes and low platelet levels.
As Ochoa’s labor progressed, she developed hypertension. After delivering a healthy baby boy, Ochoa continued to experience periodic severe hypertension, and her platelet levels fell to below normal.
She received an anti-hypertensive medication. But she suffered a stroke early on June 22.
She was then transferred to Rush University Medical Center for surgery to relieve bleeding on the brain.
Ochoa suffered brain damage due to a lack of oxygen and was rendered a quadriplegic, said Thomas G. Siracusa, a Power, Rogers & Smith P.C. partner who represented Ochoa’s estate with fellow partner Joseph W. Balesteri. She’s unable to speak, relies on a ventilator to breathe and can only eat using a feeding tube.
“She suffered a hypertensive bleed that could have been avoided with adequate management of her blood pressure,” Siracusa said.
At the time of the delivery, Dr. Joseph J. Furlin was Ochoa’s obstetrician.
In 2011, a lawsuit was filed on Ochoa’s behalf in Cook County Circuit Court. The hospital and Furlin were named as defendants.
The complaint alleged that the hospital’s staff nurses and nursing supervisors failed to follow the chain of command to ensure that Ochoa receive the proper medical care she required.
Furling allegedly failed to administer the proper doses of anti-hypertensive medication and failed to address Ochoa’s decreasing platelet levels.
Marilee Clausing and Charles C. Bletsas, partners at Hall, Prangle and Schoonveld LLC, represented Westlake Hospital. Clausing could not be reached for comment.
Furling was represented by Mark M. Burden and Michael J. Borree, both partners at Donohue, Brown, Mathewson & Smyth LLC. Neither could be reached for comment.
Attorneys for the hospital and doctor argued that Ochoa’s blood pressure never reached the levels that required treatment or placed her in danger of bleeding.
The parties settled the case in early April after two mediation sessions with Donald P. O’Connell, the former chief judge in Cook County.
Westlake Hospital will pay $22 million toward the settlement with a combination of self-insurance money and proceeds under an insurance policy. Furling will pay $1 million — his insurance policy limit.
The settlement is a record for a mother injured in childbirth, said John L. Kirkton, editor of the Jury Verdict Reporter, a division of Law Bulletin Publishing Company. The previous high settlement for a birth injury to a mother was $15 million last year in a Cook County Circuit Court wrongful-death case.
Ochoa, her husband, Jose, and their four children live in an apartment building in Melrose Park. Ochoa’s husband and her sister are her current primary caregivers.
The settlement will allow Ochoa to receive 24-hour care and regular physical therapy sessions, Siracusa said. The family plans to move into a handicapped-accessible home.
“This (HELLP) is a syndrome that requires intensive monitoring and aggressive management,” Siracusa said. “A wait-and-see approach can have devastating consequences.”
The case is Jose L. Ochoa, et al., v. Joseph J. Furlin, et al., 11 L 3900.