Here is an interesting case where a plaintiff received a sizeable verdict, but was denied full adjudication by a jury of his/her peers because of a legislatively capped recovery.
A Texas jury awarded a man over $6.8 million against a hospital that let him go totally and permanently blind within two days following cardiac bypass surgery. In 2008, a 50-year-old school maintenance supervisor underwent open heart surgery at Heart Hospital Baylor Plano. The patient woke up fine from surgery, but by the next day he started losing his vision. The nurses failed to timely and accurately report his symptoms and condition, according to the lawsuit. When they did, the critical care doctor erroneously believed that medication or anesthesia was causing his eye problem and failed to consult an ophthalmologist or proceed with a medical intervention in time to be effective. By the time a specialist was called, it was too late. The man was completely blind. He had suffered an anterior ischemic stroke of the optic nerves.
The last demand before trial was $4.4 million, but the hospital refused offering a mere $750,000. Defense offers usually dictate whether a case goes to trial and this offer, under these tragic circumstances, was ridiculously inadequate to compensate this unfortunate individual for a lifetime in the dark.
The case went to trial in June 2016 and lasted one-and-a-half weeks. The jury found the hospital 95% liable, and the critical care doctor was held 5% liable. Due to damage caps on non-economic damages in Texas, the focus at trial was placed on economic harm, consisting of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses attributed to the malpractice. The jury also awarded non-economic damages of $1.7M, but that amount will be reduced to about $335,000 as a result of the cap, according to the plaintiff’s attorney.
So, in the real world, your world, the non-legal world, what does this mean for this unfortunate victim of medical and hospital negligence? This lawyer did an outstanding job for his client in a system that is heavily weighted in favor of hospitals and doctors. He has an absolute right to proudly report this verdict. However, while he describes how the legal system, in this case, worked to provide the plaintiff badly needed financial assistance, it is important to scrutinize this verdict and look for the ‘real’ outcome, the outcome that results from tort reform. Let’s evaluate this verdict so that the public understands that there is no such thing as “jackpot justice” or a “runaway jury” even when the result is $6.8M.
Because Texas has a legislative cap on non-economic damages (that means that your elected state officials voted to restrict your right to collect for pain and suffering in a serious personal injury accident) the plaintiff’s attorney correctly focused upon economic damages in his presentation to the jury. This means that the medical providers, care providers, household providers and the attorney will be fully compensated for their service. The defense attorneys bill by the hour; their rates for a week and a half in trial are even higher. They made a ton of money. The doctor and the hospital got a tort reform bailout from the legislature, so the insurance company will pay the vast majority of the verdict, if not all of it. The insurance company makes a substantial profit when premiums (profit) are weighed against benefits (damages payouts). So, the doctors, hospital and insurance company did fine, especially in light of the tort reform cap.
Let’s assume the plaintiffs’ attorney is paid 1/3 of the recovery. Was he overpaid? Keep in mind that he carried the case, at his own expense, through 8 years of discovery, motions, court appearances, pleadings, depositions and investigations. He faced a real risk that the case would fail and carried that risk for 8 long years. I submit that his contingency fee is quite reasonable under these circumstances. So, out of all of the participants of this trial and this sizeable verdict, whose outcome is questionable, you ask? It is the victim who gets the short end of the stick; not because the attorney didn’t do a great job, but because the system, rigged by years of tort reform, rewards the perpetrators, not the victims.
Let’s evaluate the plaintiff’s share of the recovery: I will assume that he was employed at the time of the malpractice, so the verdict likely includes his wage loss, past, present and future, calculated at present value of his earnings over his expected earnings capacity or lifetime. Sounds fair, right? However, had this malpractice not occurred, he would not have become disabled; he would have been able to work and be productive throughout his work life, and he would not have needed this substantial compensation. All the wage loss component does is make him even against what he would have earned, but for the accident. Are you with me? And, as previously indicated, the balance of the large damages award with go to providers.
The key element of a verdict, the difference maker in a victim’s life going forward, is compensation for pain and suffering. It is this component that helps him live out his life in some semblance of dignity, without seeking public assistance. He didn’t ask for this injury or medical outcome; he did not go to the hospital seeking to become blind in exchange for compensation.
What was the jury’s award for pain and suffering? According to the linked report, the jury awarded $1.7 million. That certainly sounds like a substantial number. If the man put the money in the bank, lived conservatively for the rest of his life, he may realize about $75,000-$100,000 a year in support. Is that a fair number? Some would say “yes”, many would say “no”. Would you trade your eyesight for $1.7M? I wouldn’t.
But, wait, it gets worse. This is Texas, home of severe caps on non-economic damages in malpractice cases; because his $1.7M non-economic award is capped at $335,000, he will be woefully under compensated for the pain, suffering and devastating lifestyle impact that this incident has caused him. The more accurate question becomes: Would you trade your eyesight for $335,000? If you apply an attorney fee to this number, the net result is something like $223,000.
This man is totally and permanently blind. The economic damages awarded by the jury cover his past, present and future medical expenses and attorney fees. This man is now 58 years old. His life expectancy is 25 years or so. Suddenly his share of the wage loss component and the severely restricted pain and suffering component do not sound so high, do they? After the care providers and attorney fees are paid, what is left to support this unfortunate gentleman for the rest of his life? He lost his eyesight. He lost his ability to work. He lost the active lifestyle of a sighted person. He will certainly suffer a permanent diminished quality of life. For that he gets $223,000 and the present value of earnings he would have received if he remained healthy. Suddenly, this “huge” $6.8 million verdict is not so “huge”, is it? Yet, this is an outstanding result achieved by some terrific lawyering. This post is a condemnation of a legislatively damaged system, of severe limitations on our 7th Amendment rights, not of a heroic attorney who did a remarkable job against a stacked deck.
Damages caps hurt everyone except the perpetrators and their insurance companies. They hurt the victim the most, as illustrated above. They hurt hard-working attorneys who seek justice and fair compensation for their clients. Sometimes, they must work eight years or more for their fees, working for ‘free’ and laying out thousands during that time. They hurt the taxpayers, you and me, who must support, through public assistance, those victims who are so inadequately compensated, that they must seek help from the government.
At the same time, damages caps give perpetrators a free pass for the sake of “business”. Legislative decisions to “help” businesses like hospitals or dangerous product makers at the expense of victims have real consequences. Are these fair trades? Should our elected officials be assisting perpetrators and punishing the victims of their wrongful conduct? A citizen jury is qualified to sentence a person to life in prison, even death. Yet, many legislators, in shameless indifference to the 7th Amendment of the US Constitution, deem this same jury as unqualified to determine the non-economic damages in a medical malpractice case.
Perpetrators (and their insurance carrier) should be held fully, not partially, responsible. A person who is made blind by negligence, as adjudicated by a civil jury should receive the full measure of damages and justice from that jury. That’s what the 7th Amendment demands; that’s what justice and fairness demand, and that’s what we, as citizens of the United States, should demand in every state in our union.
Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.
Experienced attorney, lawsuit funding expert, certified civil mediator, and award-winning author of the Zachary Blake Betrayal Series. The series consists of "Betrayal of Faith", "Betrayal of Justice", and "Betrayal in Blue", with a fourth book due out in 2019. You can learn more about these topical political, legal thrillers at markmbello.com. Mark Bello is also a member of the State Bar of Michigan, a sustaining member of the Michigan Association for Justice, and a member of the American Association for Justice.