A Tale Of Two Cases: Is There Justice in Our Legal System?

A mother arrived at the hospital overjoyed to give birth to her first child; a baby boy. What happened next began eight years of grief for the new mother and child. Prior to delivery, the woman was advised by her obstetrician that the child weighed at least 10 pounds. However, the doctor failed to share the risk factors of carrying a large fetus; he failed to advise that she should consider a C-section rather than a “natural” birth. According to a malpractice lawsuit that was filed after the birth, during her “natural” delivery, the baby’s shoulder became lodged against the mother’s pelvic bone. The doctor pulled too hard on the baby’s head and neck, and caused him to suffer permanent damage to the nerves in his right arm. The child has been left with limited use of his right arm; the arm is shorter and smaller in diameter than his left arm.

After 8 years and three surgeries, this family finally had its day in court, and a Cook County jury awarded $3 million dollars for the doctor’s medical malpractice. As indicated above, this child does not have full use of his right arm and it will never be the size of his left. How many more surgeries will he need? How many physical therapy sessions? This boy must accept and live with permanent limitations for the rest of his life. Can any amount compensate for a life-long disability? For a lifetime of pain and suffering? Every day for the past eight years, parents and child are reminded of a day that should have been one of their happiest. Does a verdict, following an eight-year, contentious, battle, suddenly make things alright? This family has endured eight years of medical related debt because the case did not settle, eight years of constant work loss to care for the child, to take him to this doctor, this hospital, this physical therapist. And, this is a verdict, not a settlement; this family has not collected a dime. What if there is an appeal in the case? How many more years will they have to wait ? How much longer will they suffer, physically and financially, due to the negligence of one doctor? I presume there is satisfaction with a hard-earned verdict, but when will this family finally have closure?

Let’s examine another case that took five years to reach a verdict. A Michigan man was injured in 2004; he slipped and fell while working as a crew member on a ship. After being released from the hospital, he was transported on an 18-hour long bus ride. Apparently a knee immobilizer combined with a lengthy bus ride caused the development of a deep vein thrombosis that led to other complications. In May 2009, he was awarded $1.8 million by a Michigan jury. Over a year later, he still has not been compensated; and, if he is, it must come from a different jury and for a different amount, because the award has been reversed by the Court of Appeals as the result of an improper jury instruction. The appeals court has remanded the case for a new trial and directed the trial court to properly instruct the jury on the liability of vessel defendants. A new trial date is still pending.

In this case, victory has been snatched from the injured plaintiff on a technicality. If the jury instruction was, indeed, improper, than the result is a correct one, even if it delays justice for the injured man. But, his accident is now over six years old and he still awaits reasonable compensation for an injury that was not his fault. He has undergone years of income loss, years of pain and suffering, years of treatment and therapy. And, he has experienced the satisfaction of proving his case and his damages in court, only to have it slip away due to a technicality. If a mistake was made in the instruction, then the system has corrected that error; will the judge’s mistake cost this man significant money? Would the correct instruction have changed the result? This plaintiff could receive more or less compensation than the $1.8 million in a re-trial; we will never know what the original jury would have done with the proper instruction.

Like the birth trauma mother and child described above, this man has not received a dime for his years of suffering. Both victims have been on an emotional and financial roller coaster. Sadly, these two cases are not unique. Many victims of personal injuries never receive the compensation they deserve. A serious injury can turn one’s life completely upside down. Injuries may be temporary or life-long, but may still affect one’s inability to work, care for one’s self, or perform daily functions, once considered “easy”, those we all take for granted. And what about the hard cost of an injury? Medical expenses and wage loss have a significant effect on one’s standard of living. If an injury victim is unable to earn a living and, on top of that, is forced to use what money his/she has in savings to pay the medical bills, prescription drugs, therapy, how does he/she and a family survive the long, legal battle? Fortunately, my industry, the lawsuit funding industry, has provided some relief to those who have waited an obscene amount of time for simple justice.

In the birth trauma case, it would seem that justice has prevailed. But, has it? Does the same fate that snatched a verdict away from our ship’s crew member await this mother and son? The crew member thought justice had prevailed only to have it taken from him. Now he must endure the entire process, a second time. How much longer will these plaintiffs suffer without compensation, without justice? Could either or both receive nothing, after all of these years? After battling so hard, for so long?

Reports of the crew member’s original verdict were commented on by members of the public; many felt that the award was excessive for a knee injury. Fair enough; people are entitled to their opinions. But this man was injured six years ago; this woman’s botched delivery occurred eight years ago. These cases, and the vast majority of cases that survive our civil justice system are not examples of what the tort reformers would call “jackpot justice”. To be sure, there are high-sounding verdicts, sometimes seven or eight figure verdicts. However, like our two subject plaintiffs, those who receive these types of verdicts fight long and hard for them and are seriously injured or disabled, often going years without compensation or any financial support. They sought no “jackpot”. They are not game show contestants who need only ‘spin the wheel’ to obtain their fortune.

These are serious matters, serious injuries or death; people’s health is at stake. Personal injury case involve real lives and deaths, real changes in life quality. And, in the cited cases, both plaintiffs must fight on. The same body of law that produced a $1.8 million verdict has taken it away. The “high” became a “low”. The same body of law that produced the $3 million birth trauma verdict permits the doctor to appeal that verdict. Consider the pain and suffering, the mental and emotional anguish the injured parties and their families have endured . The law cannot give the child a ‘normal’ life; it cannot give return the maritime worker to the good health and life he had before his injuries. It can only offer compensation for lost earnings, medical expenses, disability, disfigurement, and pain and suffering. But when? Even if the ultimate outcome is a ‘win’ for both plaintiffs, for any plaintiff, winning will not occur without a long, hard struggle. Plaintiffs don’t ‘win’ just because they receive compensation for a serious injury. Most would gladly trade what they ‘win’ for an opportunity for a ‘do over’, an opportunity to prevent the injury from ever happening in the first instance.

‘Jackpot justice’? This is a catchy term invented by greedy insurance companies, the US Chamber of Commerce, and large businesses that would have the public believe that sizable verdicts are not earned. They would have the public believe that injury victims who receive large verdicts are not real people who have suffered serious, even catastrophic, injuries or death. Do the math: If our disabled birth trauma victim lives to the average life expectancy of 73, he will have $112 per day to live, approximately $41,000 per year. And, he will have more medical obligations and less chance of employment than a comparable healthy person. Similar equations will more than justify the verdict that was snatched from our maritime worker.

So, the proper question to ask when discussing the civil justice system is not whether there is “jackpot justice”; this ‘tale of two cases’, with many more like them, proves that such nonsense does not exist in today’s legal system of ‘delay, deny, confuse and refuse’. The real question is this: Does the system ever really provide “justice”?

Mark Bello has thirty-three years experience as a trial lawyer and twelve years as an underwriter and situational analyst in the lawsuit funding industry. He is the owner and founder of Lawsuit Financial Corporation which helps provide legal finance cash flow solutions and consulting when necessities of life litigation funding is needed by a plaintiff involved in pending, personal injury litigation. Bello is a Justice Pac member of the American Association for Justice, Sustaining and Justice Pac member of the Michigan Association for Justice, Business Associate of the Florida, Tennessee, and Colorado Associations for Justice, a member of the American Bar Association, the State Bar of Michigan and the Injury Board.