Multi-Million Dollar Verdicts: Time for a Second Opinion

Documentation of the increasing number of million-dollar verdicts in professional malpractice litigation exists at both the state and federal level. For example, in January 2001, John H. Reed, director of the Pennsylvania Catastrophic Loss Fund, recognized that Philadelphia juries had “in recent months awarded a string of record-setting, multi-million-dollar verdicts, while physicians in counties surrounding Philadelphia are apparently being sued in Philadelphia courts in increasing numbers because of the ease with which plaintiff attorneys can shift trial venues.” Within the 12-month period preceding Reed's report, three verdicts had been returned in Philadelphia County in the amounts of $49.6 million, $55 million and $100 million, in medical malpractice cases. There were 33 medical malpractice verdicts in Philadelphia that exceeded $1 million in 1999. The “ripple effect” of such verdicts extended to settlement negotiations.

As a result of these verdicts, says Reed, the cost of settlements has also gone up, with the average amount paid per case rising 15% to 20% statewide. Physicians and hospitals are increasingly afraid of taking cases to trial in Philadelphia, Reed notes, because “[f]ear of the economic death penalty has had a chilling effect on the exercise of the right to trial in even highly defensible cases.” See www:physiciansnews.com/cover.

Philadelphia County, and the Pennsylvania experience in general, are by no means unique. In September 2002, the Washington State Medical-Education and Research Foundation documented an “exodus of physicians from the state [which] appears to be growing,” clearly “driven by a dramatic rise in the size of jury awards.” “The Impact of Medical Malpractice Insurance and Tort Law on Washington's Health Care Delivery System,” (Washington State Medical-Education and Research Foundation, 2002). This exodus of physicians from the State of Washington was not the only result of the escalating jury verdicts. The report further documented that “more physicians are retiring, and at a younger age … medical practices are finding it more difficult to recruit new physicians to the community [and] increasingly, medical practices are being forced to restrict the types and numbers of patients they can accept.” Id.

In Massachusetts, of the top ten jury verdicts during 2002, the largest verdict — of $21.38 million — was returned against three physicians in a birth trauma case that resulted in permanent brain damage to the child. See “Corporate and Employment Law Litigation Dominates Massachusetts Court,” http://www.lawyersweekly.com/ resources/pressrelease

Nationwide Verdicts

Nationwide in 2002, three of the top ten jury verdicts were returned in medical malpractice actions — $94.5 million returned by a Brooklyn jury in a birth trauma action; $91 million returned by another Brooklyn jury in a suit over a child born with cerebral palsy; and $80 million in which, for the second time in less than 2 years, a New York attorney sued the same pair of obstetricians and won a multi-million dollar verdict against them. “Top Ten Jury Verdicts 2002,” www.lawyersweeklyusa.com.

The American Medical Association, basing its analysis on figures compiled by Jury Verdict Research, analyzed a database of 22,000 malpractice cases in 2000 that indicated median jury awards — excluding settlements — hit $1 million in that year. The Medical Society of the State of New York employed an even higher figure in its “fact sheet” on medical malpractice, contending that the average verdict in 2001 was $6 million, according to Jury Verdict Reporter, another reporting service. “Doctors, Patients At Odds over Malpractice Suits,” www.poughkeepsiejournal.com/projects/malpractice.

Another significant aspect of this phenomenon is the availability of such information, from the plaintiff's Bar, published on easily accessible Web sites. One such location boasts of “numerous multi-million dollar malpractice verdicts, including an infant brain damaged by unnecessary premature delivery — $43 million.” “The Chochran Firm,” www.cochranfirm.com/cases.html. A well-known Philadelphia firm provides detailed references to more than two dozen medical malpractice cases with combined total verdicts in the hundreds of millions of dollars. See www.klinespecter.com/cases/med_mal.html. Given this experience, should the defense community be doing more to avoid future verdicts of this magnitude?

Revisiting Pretrial Protocol and Procedure

Counsel experienced in the defense of medical malpractice cases generally retain medical defense experts early in the litigation, to assist with the course of discovery and interpretation of medical records. The insight and expertise provided by such consultants is often a factor in the formulation of discovery requests. None of this is new; it is clearly standard operating procedure in the defense of medical negligence claims.

Similarly, case presentations before mock juries are a valuable teaching tool. Often, two or more mock juries will be “empanelled,” to provide the defense with an opportunity to present its case in alternate fashions, in order to identify the more effective technique and message for trial. The expense of preparing for and presenting a case to a mock jury panel is not insignificant. However, when the potential verdict is in the seven- and eight-figure range, the investment is often warranted.

If a mock jury is empanelled, and a case presented to the jury, it is imperative that defense counsel have the capability of monitoring the jury deliberations. Only by direct observation of the deliberations — by means of a two-way mirror or similar technique — will counsel and his or her client gain the maximum benefits of the jurors' thought processes, gaining important insight into the themes that were and were not effective.

Of course, this is familiar ground to attorneys experienced in the defense of high profile claims. With the benefit of hindsight, cognizant of the verdict history summarized above, we know that cases that received the most exhaustive and careful pretrial preparation may yet fail to persuade the ultimate trier of fact. As stated previously, many of the high-profile verdicts involve defense counsel of the highest caliber. If that is the case, what more can be done in the future?

The Second Opinion

It is my personal belief that the stakes are too high (and the potential risks of such magnitude) for those of us in the defense community to satisfy ourselves with adherence to the accepted techniques and strategies of the past. The continued vitality and viability of individual health care practices, professional groups and even long-established hospitals may extend only so far as the next court date. For many years, the physicians we represent have been familiar with the practice of seeking a second opinion from a well-respected consultant or specialist in their fields of practice. Assuming a client or carrier willing to bear the expense, much could be gained by having a comparable legal review completed by an experienced health care law practitioner, at a reasonable period of time in advance of a trial date.

Practitioners in law, medicine and other fields often give witness to the benefits of having a “fresh face” review the problem at hand and present independent views, unaffected by the case or event history that preceded the consultant's involvement. Indeed, is this not exactly the role a panel of jurors will fulfill? Considered in this light, it would seem there is much to be gained by inviting a knowledgeable health care attorney to conduct an independent assessment of a significant or dangerous case, and provide his recommendations, sufficiently in advance of trial to allow for appropriate consideration of his views.

Understandably, defense counsel originally retained for the case may be reluctant to share their work product with a potential competitor for the client's business. However, the potential use of independent consultants in this manner flows in both directions; the trial lawyer whose work is reviewed today may be the independent consultant for the next case.

It may effectively be argued that use of mock juries and mini-trial presentations serves the same purpose as independent analysis by a skilled medical malpractice attorney. Certainly the potential benefits may overlap and, if anything, the fact that a mock jury panel involves multiple independent reviewers may well provide the defendant health care provider with all the insight necessary to secure an eventual verdict in its favor.

No “mock” juror can bring to bear, however, the expertise of a trial lawyer who has successfully represented health care providers in the trial arena. Experienced counsel who have taken cases to verdict and who have established an effective rapport with jury panels, resulting in successful outcomes over a period of years, bring to each case an understanding of the trial system that's beyond the knowledge and experience of lay persons. When all efforts to resolve the difficult and dangerous case have failed, health care providers and their insurance carriers entrust their reputations and their assets to trial counsel.

With so much at stake, why not prepare the case in the most thorough and painstaking manner possible? The experienced defense lawyer, confident of him/herself and of his/her abilities, should have little to fear from a trusted colleague's independent review of his/her work. Indeed, where the independent analysis affirms the strategy and preparation of original counsel, both that counsel and the client enjoy significant reassurance that their path is correct and all that could be done to prepare for the battle has been done.

Few health-care providers confronting the reality of trial proceedings in cases involving serious injury or death fail to recognize the possibility of a multi-million dollar verdict being returned in favor of the plaintiff. In 2003, 15 of the top 100 verdicts reported nationwide by Verdictsearch resulted from medical malpractice actions, with the range falling between an award of approximately $19,465,000 to an incredible $112 million in a case involving the alleged failure to diagnose an aneurysm, which led to the patient's quadriplegia and significant brain damage. See www:verdictsearch.com/news/top100.

Recognition of the numerous multi-million-dollar verdicts that have been returned against health care providers, both corporate and individual, is not intended as a criticism of the skilled defense lawyers who were involved in these cases. The fact that a defendant involved in a case of potentially catastrophic damages entrusts the trial of so serious a matter to one or more lawyers reflects the highest degree of trust between attorney and client, and in most if not all trials, further reflects years of successful litigation experience by defense counsel. Nevertheless, given the significant number of seven- and eight-figure verdicts returned over the past decade in medical malpractice litigation, it is perhaps incumbent on all of us who specialize in the defense of such matters to re-examine our approach and consider whether all that could be done has, in every case, been done.

The Scope of the Problem

Documentation of the increasing number of million-dollar verdicts in professional malpractice litigation exists at both the state and federal level. For example, in January 2001, John H. Reed, director of the Pennsylvania Catastrophic Loss Fund, recognized that Philadelphia juries had “in recent months awarded a string of record-setting, multi-million-dollar verdicts, while physicians in counties surrounding Philadelphia are apparently being sued in Philadelphia courts in increasing numbers because of the ease with which plaintiff attorneys can shift trial venues.” Within the 12-month period preceding Reed's report, three verdicts had been returned in Philadelphia County in the amounts of $49.6 million, $55 million and $100 million, in medical malpractice cases. There were 33 medical malpractice verdicts in Philadelphia that exceeded $1 million in 1999. The “ripple effect” of such verdicts extended to settlement negotiations.

As a result of these verdicts, says Reed, the cost of settlements has also gone up, with the average amount paid per case rising 15% to 20% statewide. Physicians and hospitals are increasingly afraid of taking cases to trial in Philadelphia, Reed notes, because “[f]ear of the economic death penalty has had a chilling effect on the exercise of the right to trial in even highly defensible cases.” See www:physiciansnews.com/cover.

Philadelphia County, and the Pennsylvania experience in general, are by no means unique. In September 2002, the Washington State Medical-Education and Research Foundation documented an “exodus of physicians from the state [which] appears to be growing,” clearly “driven by a dramatic rise in the size of jury awards.” “The Impact of Medical Malpractice Insurance and Tort Law on Washington's Health Care Delivery System,” (Washington State Medical-Education and Research Foundation, 2002). This exodus of physicians from the State of Washington was not the only result of the escalating jury verdicts. The report further documented that “more physicians are retiring, and at a younger age … medical practices are finding it more difficult to recruit new physicians to the community [and] increasingly, medical practices are being forced to restrict the types and numbers of patients they can accept.” Id.

In Massachusetts, of the top ten jury verdicts during 2002, the largest verdict — of $21.38 million — was returned against three physicians in a birth trauma case that resulted in permanent brain damage to the child. See “Corporate and Employment Law Litigation Dominates Massachusetts Court,” http://www.lawyersweekly.com/ resources/pressrelease

Nationwide Verdicts

Nationwide in 2002, three of the top ten jury verdicts were returned in medical malpractice actions — $94.5 million returned by a Brooklyn jury in a birth trauma action; $91 million returned by another Brooklyn jury in a suit over a child born with cerebral palsy; and $80 million in which, for the second time in less than 2 years, a New York attorney sued the same pair of obstetricians and won a multi-million dollar verdict against them. “Top Ten Jury Verdicts 2002,” www.lawyersweeklyusa.com.

The American Medical Association, basing its analysis on figures compiled by Jury Verdict Research, analyzed a database of 22,000 malpractice cases in 2000 that indicated median jury awards — excluding settlements — hit $1 million in that year. The Medical Society of the State of New York employed an even higher figure in its “fact sheet” on medical malpractice, contending that the average verdict in 2001 was $6 million, according to Jury Verdict Reporter, another reporting service. “Doctors, Patients At Odds over Malpractice Suits,” www.poughkeepsiejournal.com/projects/malpractice.

Another significant aspect of this phenomenon is the availability of such information, from the plaintiff's Bar, published on easily accessible Web sites. One such location boasts of “numerous multi-million dollar malpractice verdicts, including an infant brain damaged by unnecessary premature delivery — $43 million.” “The Chochran Firm,” www.cochranfirm.com/cases.html. A well-known Philadelphia firm provides detailed references to more than two dozen medical malpractice cases with combined total verdicts in the hundreds of millions of dollars. See www.klinespecter.com/cases/med_mal.html. Given this experience, should the defense community be doing more to avoid future verdicts of this magnitude?

Revisiting Pretrial Protocol and Procedure

Counsel experienced in the defense of medical malpractice cases generally retain medical defense experts early in the litigation, to assist with the course of discovery and interpretation of medical records. The insight and expertise provided by such consultants is often a factor in the formulation of discovery requests. None of this is new; it is clearly standard operating procedure in the defense of medical negligence claims.

Similarly, case presentations before mock juries are a valuable teaching tool. Often, two or more mock juries will be “empanelled,” to provide the defense with an opportunity to present its case in alternate fashions, in order to identify the more effective technique and message for trial. The expense of preparing for and presenting a case to a mock jury panel is not insignificant. However, when the potential verdict is in the seven- and eight-figure range, the investment is often warranted.

If a mock jury is empanelled, and a case presented to the jury, it is imperative that defense counsel have the capability of monitoring the jury deliberations. Only by direct observation of the deliberations — by means of a two-way mirror or similar technique — will counsel and his or her client gain the maximum benefits of the jurors' thought processes, gaining important insight into the themes that were and were not effective.

Of course, this is familiar ground to attorneys experienced in the defense of high profile claims. With the benefit of hindsight, cognizant of the verdict history summarized above, we know that cases that received the most exhaustive and careful pretrial preparation may yet fail to persuade the ultimate trier of fact. As stated previously, many of the high-profile verdicts involve defense counsel of the highest caliber. If that is the case, what more can be done in the future?

The Second Opinion

It is my personal belief that the stakes are too high (and the potential risks of such magnitude) for those of us in the defense community to satisfy ourselves with adherence to the accepted techniques and strategies of the past. The continued vitality and viability of individual health care practices, professional groups and even long-established hospitals may extend only so far as the next court date. For many years, the physicians we represent have been familiar with the practice of seeking a second opinion from a well-respected consultant or specialist in their fields of practice. Assuming a client or carrier willing to bear the expense, much could be gained by having a comparable legal review completed by an experienced health care law practitioner, at a reasonable period of time in advance of a trial date.

Practitioners in law, medicine and other fields often give witness to the benefits of having a “fresh face” review the problem at hand and present independent views, unaffected by the case or event history that preceded the consultant's involvement. Indeed, is this not exactly the role a panel of jurors will fulfill? Considered in this light, it would seem there is much to be gained by inviting a knowledgeable health care attorney to conduct an independent assessment of a significant or dangerous case, and provide his recommendations, sufficiently in advance of trial to allow for appropriate consideration of his views.

Understandably, defense counsel originally retained for the case may be reluctant to share their work product with a potential competitor for the client's business. However, the potential use of independent consultants in this manner flows in both directions; the trial lawyer whose work is reviewed today may be the independent consultant for the next case.

It may effectively be argued that use of mock juries and mini-trial presentations serves the same purpose as independent analysis by a skilled medical malpractice attorney. Certainly the potential benefits may overlap and, if anything, the fact that a mock jury panel involves multiple independent reviewers may well provide the defendant health care provider with all the insight necessary to secure an eventual verdict in its favor.

No “mock” juror can bring to bear, however, the expertise of a trial lawyer who has successfully represented health care providers in the trial arena. Experienced counsel who have taken cases to verdict and who have established an effective rapport with jury panels, resulting in successful outcomes over a period of years, bring to each case an understanding of the trial system that's beyond the knowledge and experience of lay persons. When all efforts to resolve the difficult and dangerous case have failed, health care providers and their insurance carriers entrust their reputations and their assets to trial counsel.

With so much at stake, why not prepare the case in the most thorough and painstaking manner possible? The experienced defense lawyer, confident of him/herself and of his/her abilities, should have little to fear from a trusted colleague's independent review of his/her work. Indeed, where the independent analysis affirms the strategy and preparation of original counsel, both that counsel and the client enjoy significant reassurance that their path is correct and all that could be done to prepare for the battle has been done.