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.

FRIDAY, DECEMBER 15, 2000

(202) 514-2007

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TDD (202) 514-1888

TENNESSEE-BASED NATIONAL HEALTHCARE CORPORATION

SETTLES MEDICARE FRAUD CASE FOR $27 MILLION

WASHINGTON, DC – National Healthcare Corporation (NHC) will pay the United States $27 million to resolve allegations under the False Claims Act that the company submitted falsely inflated reports to Medicare, the Justice Department announced today. The government alleged that beginning in 1991 the company submitted nursing home cost reports that falsely claimed that facility staff members spent more time caring for Medicare patients than they actually did in order to collect additional money from the federal health care program.

The complaint against NHC alleges that the company submitted cost reports that included false claims for reimbursement. NHC, headquartered in Murfreesboro, Tennessee, owns, leases or provides services to 105 nursing homes nationwide.

"Today’s settlement by the Justice Department demonstrates the government’s determination to combat health care fraud by providers," said David W. Ogden, Assistant Attorney General of the Department of Justice’s Civil Division.

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(Data are for U.S. for year indicated)

Number of nursing homes: 18,000

Number of beds: 1.9 million

Number of current residents: 1.6 million

Average length of stay (current resident): 892 days

Number of discharged residents: 2.5 million

Average length of stay (discharged resident): 272 days

Occupancy rate: 87 percent

Source: The National Nursing Home Survey: 1999 Summary, tables 1, 11, 39

Wrong Insulin Dose, Other Neglect Results In $1.05 Million Nursing Home Verdict
By Gregory Froom

The estate of a diabetic woman whose blood sugar plummeted after she was injected with another patient’s insulin has won a $1.05 million verdict against the Upstate nursing home where she resided.

The estate claimed that the 85-year-old patient suffered increased dementia after an incorrect insulin dose administered by nursing home staff sent her into hypoglycemic shock, or extremely low blood sugar.

A Spartanburg County jury ordered the facility, White Oak Manor, to pay the woman’s estate $50,000 in actual damages and $1 million in punitives. The verdict was handed down in November.

The case is Clark v. White Oak Manor, Court of Common Pleas No. 04-CP-42-1932. Judge J. Derham Cole presided at trial.

The plaintiff’s attorney, Gary W. Poliakoff of Spartanburg, said the jury’s finding that White Oak Manor was reckless in its treatment of the patient made the punitive award permissible.

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Estate Settles Nursing Home Neglect Claim Over Dehydration
Plaintiffs Claimed Facility Failed To Address Fluid Intake, Urinary Infection
$300,000 Mediated Settlement

Principal injuries (in order of severity): Dehydration, malnutrition and UTI causing death.

County where tried or settled: York

Case Name and Number: Barley et al. v. White Oak Manor – York, Inc. et al., York County Court of Common Pleas Case No. 2004-CP-46-987 & -988.

Date Concluded: July 13, 2005

Name of Judge: Hon. John C. Hayes, III

Amount: $300,000.

Attorneys for plaintiff: Anthony L. Harbin and John P. Griffith of Anderson

Other Useful Info: The decedent was admitted to the defendants’ nursing home in June 2000 with multiple health problems and chronic conditions. The plaintiffs alleged that the defendants were aware of his high risk for dehydration. The decedent also lost a significant amount of weight during his stay in the nursing home, according to the plaintiffs’ case report. In June 2001, decedent began to experience greater weight loss and poor oral intake. This increased his risk factor for dehydration, but the defendants failed to care plan and implement interventions to monitor him more closely to prevent dehydration from occurring, according to the plaintiffs. Defendants failed to ensure that decedent was receiving at least the minimum amount of fluid intake to prevent dehydration and failed to treat his UTI causing his death, the plaintiffs alleged. The decedent was ultimately admitted to the hospital for dehydration and a urinary tract infection and he died two days later. The hospital records stated that decedent was "clinically dry." The decedent was survived by his wife, one minor child and one adult child.

The defendants settled without admitting any liability, according to the settlement order.