Med Mal News

Insurer Agrees to Pay Nearly $3 Million Above Policy Limits

Apparently concerned that it had left itself open to a medical provider's bad-faith suit, Georgia's MAG Mutual Insurance has agreed to pay a winning plaintiff the full $4.9 million judgment awarded, in spite of the fact that the clinic's combined insurance policies with the company placed a $2 million ceiling on its liability.

The medical malpractice case was brought by the family of Ok Hui Smith, a Korean War refugee who married an American soldier, became an American citizen and raised a family with him. At the age of 78, Smith sought treatment from her primary care physician for a toenail fungus. Her doctor prescribed Nizoral, a potent drug that, according to the FDA, should not be used to treat mild fungus complaints because of its potential for causing liver problems. Smith had been taking the drug for 4 ' months when her liver and kidneys failed; her doctor had checked her liver function just once during treatment. The doctor admitted his fault and a jury was asked only to decide damages. The defense asserted that, because of the decedent's advanced age, damages should be lowered, but the plaintiff side argued quality of life. David Krugler, the Smith family's attorney, explained: “Mrs. Smith was an extraordinary person. She learned English, became a U.S. citizen, became a master seamstress, gardener, cook. … We believed strongly in the family and the case. We knew the jury would get the value of this woman's life and that the loss of that life was really tremendous. They got it.”

Krugler opined that MAG Mutual agreed to go above the policy limits because the insurer repeatedly rejected the plaintiffs' offers to settle the case for $2 million.

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Med-Mal Case Drags On in Florida

Florida Circuit Judge Jerald Bagley has been instructed to conduct a new hearing concerning the fee dispute between a woman and those she sued for medical malpractice. The plaintiff, Janneral Denson, was in her second trimester of pregnancy when, returning to the United States from Jamaica in 1997, customs officials stopped her, suspecting she was smuggling drugs. Denson was therefore handcuffed to a hospital bed and forced to take prescription-strength laxatives in order to produce stool samples that the authorities could test for drugs. Nothing illegal was found. A few days later, Denson went into premature labor and delivered a baby weighing less than four pounds. She brought suit for medical malpractice in 1999 against the public hospital operator Public Health Trust of Dade County, where the handcuffing and testing was done, as well as against two of the hospital's nurses and physician John Bennett. The case went to trial in November 2012, but ended with a mistrial after Dr. Bennett improperly discussed the case with another doctor who was a trial witness ' and did so within the hearing of jurors. The doctors also had another conversation with defense counsel in the bathroom, where they were overheard by a juror.

Denson sought attorney fees after the mistrial was declared, but Judge Bagley dismissed the motion without prejudice. A second trial failed to progress over a shortage of jurors, while a third trial ended with a $264,000 award for Denson and $165,000 for her son. Denson then renewed her motion for sanctions, this time seeking more than $200,000, to cover attorney fees for all three trial. This time Judge Bagley agreed with Denson and awarded $208,702. Now, however, a state appellate court has sent the issue back to Judge Bagley, saying Dr. Bennett's misconduct during the first trial did not extend to the second and third trials. It's now nearly 20 years after the complained-of malpractice, but this case is not over yet.

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