Med-Mal cases down -- is 'tort reform' the cause?

Pennsylvania - New Jersey - New York - Nationwide

By Emily Heller
SPECIAL TO THE NATIONAL LAW JOURNAL

The 15 medical malpractice cases in the Top 100 jury verdicts of 2003 were a mixed bag of tragedies that may (or may not) have been affected by efforts to limit tort rights.

The verdicts totaled $545.5 million. While that's a robust sum, its nearly $178.6 million less than in the previous year's top verdicts, even though 2003 had two additional cases.

Some attorneys and med-mal experts contend that trend spotting is a pointless parlor game leading to faulty conclusions. Verdicts were fast-driven, they say.

Others see shrinking verdicts and blame "tort reform," which, they say, includes damage caps in 27 states and indirectly affects juries everywhere.

Juries are holding back under pressure from tort reformers complaining that med-mal awards are out of control, said Thomas R. Kline, a partner at Philadelphia's Kline & Specter. The firm had two cases in the Top 100 with verdicts of $20 million and $22 million. Gomez v. Daneshvar, City Medical Center and Perkins, No. ATL-L-2281-99 (Atlantic Co., NJ., Super. Ct.), and Gallagher v. Temple University Hospital, No. 2001-002643 (Philadelphia Co., Pa., Ct. C.P.).

The dampening effect of tort reform is distinct in Pennsylvania which enacted restrictions-but not damage caps-in 2002, Kline said. Restrictions include new requirements to file med-mal cases with affidavits of merit" or statements by experts that the action is not frivolous. The result, he said, is fewer filings and fewer smaller plaintiffs' verdicts.

"Those are clear and quantifiable trends in Pennsylvania-a bellweather state in medical malpractice," he said.

The health care factor

Tort law changes may be spreading, but they're not reducing the biggest verdicts, which are driven by the cost of medical care, said Les Weisbrod of Morgan & Weisbrod in dallas. He was plaintiff's counsel in a Texas case resulting in a $31.2 million verdict.

Truck driver Edward Millichamp III alleged that he became a quadriplegic because neck fractures suffered in a rollover accident went undiagnosed in a hospital emergency room. The jury awarded $7.5 million for the future cost of his medical care. Millichamp v. Mendelson, Toppins, No. 01-1793-E (Dallas Co., Texas, Dist. Ct.).

Verdicts can run particularly high in cases involving babies brain-damaged during childbirth, Weisbrod noted.

That may explain why 2002 med-mal verdicts totaling $724.1 million, were higher than in 2003. Of the 13 cases in 2002, 10 involved infants. The 2003 list had only three.

Weisbrod said tort reform is not cutting into verdicts. On the contrary, he said, a jury in a serious case will award a big verdict because it's not a frivolous suit like the ones they keep hearing about.

For example, the Millichamp trial came just two weeks after Texas voters approved a ballot proposition authorizing a $250,000 noneconomic damage cap in medical malpractice cases.

Weisbrod said many of the Millichamp jurors claimed to be conservative Republicans, yet awarded $5.25 million for pain and suffering.

In another example, a New York jury awarded $112 million-No. 18 in the top 100-to elevator mechanic David Fellin, 23, who suffered a burst cerebral aneurysm while working in a hospital. His suit alleged that the facility's delay in diagnosis and treatment caused brain damage and quadriplegia, said plaintiff's counsel Robert J. Bohner of Garden City, N.Y. Fellen v. Long Island College hospital, No. 4129/93 (Kings Co., N.Y., Sup. Ct.).

This was a retrial. A $42 million verdict in 2000 was overturned, said defense counsel Richard V. Caplan of Aaronson Rappaport Feinstein & Deutsch in New York. The second jury decided that plaintiff should receive home care costing $76 million, not less costly nursing home care, Caplan said.