Profession

Judge: Mega-verdict spawned by passion

A column analyzing the impact of recent court decisions on physicians

By Tanya Albert amednews correspondent— Posted Oct. 11, 2004.

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Doctors fed up with jury awards they see as over the top are going to like one Ohio judge's response to what's believed to be the largest medical malpractice award in the state's history.

He threw out the verdict and called for a new trial.

In a 13-page opinion, trial court Judge Robert M. Lawther said the award was excessive and that it was given "under the influence of passion and prejudice." He also said the plaintiff's attorney used theatrical tactics throughout the trial that helped him win "a clearly unjustified verdict."

"There may be a future case in Ohio in which the plaintiff is severely injured, facing a lifetime of constant pain and disability, permanently bedridden, deprived of a large income enjoyed before the malpractice with a family he can no longer support and facing daily exorbitant costs of special medical care," the judge wrote. "In such a case a verdict in the amount of $30 million or more might be well justified. In the opinion of this court, the evidence herein does not show that this is such a case."

The emphasis was Lawther's, as he wrote that sentence in bold with an underline.

This is exactly the kind of decision that physicians -- who are struggling to pay for or obtain medical liability insurance -- say they want to see more judges making in extreme cases.

Trial judges do hold the power to reduce jury awards or order new trials when they think it's justified. But experts say that power is rarely used.

Marc Groedel, one of the Cleveland lawyers who represented the physician and medical center defendants, said it's only the second time he's seen a new trial ordered in his 20 years defending medical malpractice cases.

"It doesn't happen very often," Groedel said. "What Judge Lawther did was a brave and commendable thing." And, he said, it was justified.

The trial

In May, a jury in Cleveland awarded $30 million to 17-year-old Walter Hollins. After a three-week trial, jurors decided in a 6-2 vote that the boy has cerebral palsy and severe retardation because of negligent prenatal and postnatal care in 1987.

Doctors knew that Hollins was an intrauterine growth-retarded baby, and in the 39th week of pregnancy Cleveland obstetrician-gynecologist Ronald Jordan, MD, sent Hollins' mother to Mt. Sinai Medical Center for testing, according to court records.

Dr. Jordan decided that a Caesarean section was the best option and he met Hollins' mother at the center and delivered the baby about two hours later, court records show.

Hollins argued that he would have been born without medical problems if he had been delivered one hour earlier. Dr. Jordan and Mt. Sinai claimed the ob-gyn's decisions met medical standards given the situation and that the child's injuries occurred before the mother was admitted to Mt. Sinai.

Lawther called the verdict "a close call" given the 6-2 vote and said it depended upon which medical expert the jury believed in the case.

Civil cases don't require a unanimous decision, and the jury ultimately awarded $15 million for economic damages to pay for the boy's medical care and another $15 million in noneconomic damages to compensate him for pain and suffering, physical disability, disfigurement and interference with the normal activities of life.

But when Dr. Jordan and Mt. Sinai raised questions about the trial's fairness and verdict's size, Lawther agreed that a new trial was needed.

A question of fairness

Usually judges don't interfere in jurors' decisions, but Lawther said there were several major grounds to order a new trial in this case: Excessive damages, irregularities in the proceedings that prevented a fair trial and misconduct by Hollins' lawyer, Geoffrey Fieger, most well-known as the lawyer who defended Jack Kevorkian, MD.

First, Lawther wrote, the plaintiffs asked for nearly triple the economic damages than they originally said they would.

It surprised the defense, and Lawther said he should have had a sidebar that the defense requested during trial to keep the jury from hearing. Instead, "very damaging testimony and medically unsupported figures were presented by surprise," Lawther said.

The defense received a report from the plaintiff's expert economist in January calculating Hollins' lifetime health care costs between $4.3 million and $6.4 million. At trial, the expert testified it would cost between $13 million and $14 million to care for Hollins. The plaintiffs had added in the cost of two caregivers that no doctor or expert had recommended, according to court records.

Further Lawther said it was even harder to "understand and to justify" the $15 million noneconomic award.

"The award of $15 million for noneconomic damages in this case is so out-of-line and unjustified that it must have been the result of passion and prejudice," Lawther wrote, in bold, in his Aug. 25 opinion.

He said there was no evidence that Hollins is in regular, continuing pain and that the jury simply seemed to match the economic award when it decided how much to give Hollins for pain and suffering. The judge said fairness and common sense dictate the figure should have been lower.

For example, Lawther said a $3 million noneconomic award invested at 5% would have given the boy $150,000 annually.

"Such an income should be sufficient to provide wonderful facilities for his comfort and for recreational opportunities over and above the medical and custodial care provided by the economic damage portion of the verdict," Lawther said. "Returning a verdict of $15 million for noneconomic loss shows that the jury simply lost its way."

A question of conduct

The judge also said a new trial is called for because he should have questioned the jury about a trial story that ran in the Cleveland Plain Dealer just before jury deliberations.

And, he said, a new trial needs to occur because of the way Hollins' attorney Fieger behaved.

"Some lawyers believe that conducting a trial in a theatrical way, being overbearing, discourteous and rude is the key to success," Lawther wrote.

He said the plaintiff's lawyer seemed to hold that opinion. "In this case, that approach seems to have helped him achieve a clearly unjustified verdict. His theatrical and discourteous demeanor throughout the trial seemed to emulate TV trials in which lawyers can do and say whatever comes to mind."

Lawther said the lawyer would interrupt the doctor's and health center's lawyers without objecting properly and that his approach to the case was "misleading, unprofessional and frequently outrageous."

Fieger has appealed the trial court judge's decision for a new trial. He did not return numerous phone calls requesting an interview or copies of his appeal.

In his opinion, Lawther noted the plaintiff's brief defended Fieger by saying that the allegations of misconduct occurred when the jury could not see it. The plaintiff also said that Fieger's conduct was acceptable in showing "ability, enthusiasm and zealous advocacy."

Lawther, though, disagreed with that defense and said theatrics "best left to movies and television" went too far.

In one example, Lawther said the lawyer inappropriately tried to appeal to the jury's natural sympathy by speaking as if he were Harris before being born: "Please, please nurses. I'm a little baby. I want to play baseball. I want to hug my mother. I want to tell her that I love her. Help me. Please help me to be born."

The bigger picture

Experts in a number of states said it is uncommon for trial judges to vacate verdicts, and it is only slightly more common at the appellate level.

Some said there are times when reductions or new trials are called for, and they would like to see trial judges use their discretion more often.

"There are cases where it is warranted for jury awards to be reduced," said Bob Fields, Texas Medical Liability Trust's executive vice president for claims operations. "The courts are reluctant to do it."

California medical defense lawyer Robert S. Luft said judges who reduce awards or order new trials in cases where the evidence shows that the award isn't justified can help keep physicians' insurance premiums more reasonable and help keep consumer health care costs down.

"Excessive damages against health care insurers, physicians and hospitals do increase, to some extent, the cost of health care," Luft said. "Judges should use their discretion."

For those physicians and others who agree, the Ohio case is a great example of something they hope trial judges increasingly will do in the future.

Tanya Albert amednews correspondent—

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