Jackpot justice: $217M for misdiagnosed stroke in Florida

[Bumping October 5 9AM post to reflect new details.]

$100.1 million in punitive damages, and the “compensatory” award is almost certainly mostly non-economic damages, though the press coverage does not distinguish. (Thomas W. Krause, “Jury Puts Punitive Award At $100 Million”, Tampa Tribune, Oct. 3). TortsProf blog, Peter Lattman, Kevin MD, and Greedy Trial Lawyer comment. So no one accuses us of unfairness, we’ll repeat the GTL summary of the case:

ProAssurance’s subsidiary, ProNational Insurance Co., was the malpractice insurer for a doctor’s group running a Tampa area hospital emergency room where patient Allan Navarro’s stroke was misdiagnosed by an unlicensed physician’s assistant as a headache and sinus infection.

[Plaintiffs’ attorney Steve] Yerrid told the Tampa newspaper he tried to get the insurance company to settle for the maximum allowed under the policy – $1 million for the doctor and $1 million for the physicians’ group. Instead, he said, the insurance company wanted to settle for $300, offering $100 for Navarro, $100 for his wife and $100 for his 10-year-old son.

Update: Daily Business Review has a more detailed summary than the mainstream press:

On Aug. 9, 2000, Navarro, who was a professional basketball player in his native Philippines, entered University Community Hospital-Carrollwood with a headache, nausea, dizziness, confusion and double vision. He described a personal medical history of hypertension, diabetes and elevated cholesterol plus a family history of strokes to the triage nurse. A different nurse than the triage nurse also noted he was unsteady on his feet.

When Navarro spoke with Herranz in the examination room, he mentioned the sudden onset of a headache earlier that day and that he had felt a “pop” in his head.

According to the 2005 second amended complaint, Herranz did not complete an adequate medical history of Narvarro, nor did he do a complete or adequate neurological exam.

Navarro spent about 5 1/2 hours at UCH-Carrollwood, during which time he had two CT scans of his brain and was diagnosed with “sinusitis/headache” by Austin, prescribed Vicodin for the pain and an antibiotic by the doctor and sent home. He was not told to watch for any stroke symptoms.

The suit alleged that Navarro presented classic stroke symptoms that Austin should have noticed. It further said that CT scans are not adequate diagnostic tools for ruling out the type of stroke Navarro had.

Early the next morning, Navarro woke with a severe headache, slurred speech, nausea, confusion and trouble walking. He was readmitted to the UCH-Carrollwood Emergency Room at 6:05 a.m. Upon his return, he was labeled “urgent,” but doctors still had not diagnosed a stroke. It wasn’t until he was transferred to Carrollwood’s sister hospital, UCH-Fletcher, that afternoon that surgery was finally performed. By then, the stroke had already left him paralyzed with mental disabilities. During surgery, he slipped into a four-month coma. He is now confined to a wheelchair.

(Rebecca Riddick, “Judge Halts Defendants’ Bid to Avoid $116M Med-Mal Verdict”, Oct. 6).

Multiple issues here:


1) Liability. I honestly don’t know whether liability is appropriate for the use of an “unlicensed physician’s assistant” to do triage, so I’ll defer to the medical experts. (That was the fact singled out in newspaper coverage interviews with the plaintiffs’ lawyer, but the real negligence might have been sending the patient home; I also don’t know how bad the misdiagnosis was; there must have been other symptoms of sinusitis.) But it doesn’t seem obvious to me that that’s something meriting punishment: in 2000, I had heartburn that I thought was chest pain, and drove to the emergency room of Cedars Sinai in Beverly Hills, which generally has a reputation for top-of-the-line care, and I was triaged by a nurse, not a doctor. Is that “putting profits first” or ensuring that a scarce supply of doctors are reserved for important issues? The insurance company plainly thought that this was a nuisance case. What do doctors think? (Update: Doctors comment, Oct. 7.)

2) Reading between the lines, it does look like the defense was hurt by doctors trying to blame the mishap on one another, and the jury issuing a pox on all their houses, but that’s an advantage plaintiffs sometimes get with a scattershot lawsuit. Update: To be more specific, “The jury found the physician’s assistant 25 percent responsible. The panel assigned 50 percent liability to Carrollwood Emergency Physicians and an affiliate and 25 percent to an emergency room doctor employed by the group.” (“Insurance firm may owe $217 million”, Birmingham News, Oct. 5) (via Rossmiller).

3) The hospital wasn’t a defendant. Did they settle? If so, why don’t we know about it? Why doesn’t the jury know about it? Many famous verdicts occur when the most culpable defendants settle before trial, and the plaintiff is permitted to tell a wild story about less culpable defendants; it would certainly put the three-hundred-dollar settlement offer in a different light. That isn’t necessarily what happened here, but it’s a fact pattern that one should look out for in cases.

4) A commenter on Kevin MD’s site says that the patient isn’t going to get more than the insurance coverage plus the doctors’ assets, but that’s not necessarily so: the doctors and insurer are now adverse to one another, and the plaintiffs’ attorney can sue the insurer for “bad-faith” failure to settle. Insurers are always potentially on the hook for far more than the policy limits, yet one can readily find academics who argue that jackpot-justice malpractice verdicts are not a true problem because of insurance policy limits. (The plaintiff, like most plaintiffs, offered to settle for policy limits.)

5) Tobacco lawyer Yerrid’s closing argument: “Now’s not the time for mercy. Now’s not the time, as I said, for compassion. Now is the time for the sword.” Who said that jury trials are appeals to raw emotion rather than reasoned public-policy determinations?

6) The obvious issue is the damages.

A) “This isn’t about money, this was about the quest for justice.” But of course. (AP/MSNBC Oct. 4).

B) If someone went to Allan Navarro the week before his stroke and said “Stroke is the No. 3 killer of people in America. How much insurance would you like to buy to cover you in the eventuality of a stroke?”, there is no way the answer would be “$117 million.”

C) The doctors, unless they win a bad-faith judgment against their insurer, will be bankrupted by this decision. These are the sorts of damages that don’t deter malpractice, they deter practice. Perhaps the three physicians who faced this award were such bad physicians that, over the course of their career, they did more harm than good, though this is highly unlikely. How many other physicians are going to decide that it’s not worth the risk to the rest of their assets to practice emergency medicine?

7) Ironically, with its sense of good timing, TortDeform this week singled out ProAssurance’s slightly increased profitability over six quarters as evidence that tort reform doesn’t help doctors. If ProAssurance is on the hook for $217 million in a bad-faith suit, it would wipe out seven quarters of continuing-operation profit entirely, as well as nearly a quarter of their shareholders’ equity. And there’s the risk of punitive damages on top of the $217 million. And, of course, those profits reflect more than just Florida.

8) But, I agree, the final number in settlement will likely be less than $217 million, though it will almost certainly be more than this case is worth in a Platonic sense. One should view the promise to donate the punitive damages to charity as illusory: the ultimate settlement will almost certainly be attributed to compensatory damages.

(Update, August 2007: case settles.)

17 Comments

  • I don’t understand juries. Perhaps it’s the judge’s influence regarding following the judge’s instructions that pressures juries to vote a certain way (despite jury nullification)? Or, juries have some kind of magical groupthink that prevents them from making rational, common sense decisions? Can you write a post or reference links to why juries work the way they work?

  • juries have only one thing on their mind: “next time it might be me wanting money so I’d better make the amount as high as possible”.

  • Ted, I’m a doc. I don’t do ER practice (I’m a pulmonary consultant), but I can tell you that it’s common practice in most ERs to have a nurse (RN) do triage at/near the door. An experienced ER nurse is very capable of ensuring that the sickest patients get to the head of the line.

    Can a PA do that? I’m sure they can if they’re experienced. They need appropriate training and oversight, just like a nurse.

    One issue I don’t understand: in Florida PAs must be licensed . Why was an unlicensed PA working in the ER? That could be a real bozo no-no.

  • Seems to me the Floridanos don’t want doctors working in their state at all. If you wish to preserve a certain species of animal, you can’t have open season on them with huge bounties for the hunters.
    No doubt there will always be some doctors left in this state, but they will increasingly be of the kind that are unemployable elsewhere.

  • The award does seem absurdly high. For one thing, I don’t understand why the judge allowed the punitive-damages claim to go to the jury. If there were allegations that other patients were similarly harmed, I expect that the article would have mentioned them.

    I do have a few quibbles with Ted’s points. As to #1, the reference to “triage” is inaccurate, I think. According to the article, the plaintiff was actually diagnosed by the layman “expediter,” which makes the situation clearer. In my view, if there is sufficient evidence that a doctor has wholly delegated a medical judgment to a lay employee, negligence (or even fraud) seems unambiguous. This also has implications for point 6(C); if these doctors were already not practicing medicine but rather were delegating to lay people, then there is minimal social loss if they’re forced to close down.

    As to point 2, there were only two defendants, which doesn’t seem especially scattershot. [TF: There were four, rather than two, defendants, and it’s not clear whether a separate settlement was reached with the hospital. This may or may not be scattershot.]

    On point 3, I agree that the hospital’s absence was conspicuous, but it’s hard to argue that the hospital would have been the more culpable defendant here. Also, it’s not clear to me why the doctors would have been prevented from putting on evidence that the hospital was more culpable than they were, if in fact the plaintiff was trying to tell a “wild story” to the contrary. If there was a settlement with the hospital, I don’t see that it would have been admissible evidence, and I have to imagine that the defendants would want to keep it out of the jury’s consideration, since it’s more prejudicial than probative as to liability.

    On point #5, I couldn’t agree more with Ted. The plaintiff’s closing was absurd, and shame on the jury for eating up that corn.

    Finally, on #6(B), the relevant question would be “in the eventuality of a misdiagnosed stroke, which presents higher risks and worse harm than one that is properly diagnosed. This then affects the question of “how much insurance would you buy?” A decision to buy insurance depends upon a judgment of the likelihood of a bad event occurring balanced against a particular level of premiums. The problem here is that it is extremely difficult for a patient to assess with any accuracy the risk that a doctor will misdiagnose him (or delegate the task of diagnosing to someone unqualified to do so). And of course no level of premiums is stated.

    This strikes me as more generally a problem with trying to assess tort damages by reference to insurance: a plaintiff would not have enough information to purchase insurance ex ante and thus would essentially have to guess what level of risk a particular injury might pose. This inquiry wouldn’t become any less uncertain for a trier of fact ex post, either. Asking the jury (or the judge) “what level of insurance do you think the plaintiff would have bought at some unspecified price to insure against an unknown level of risk” seems just as subjective and unguided as the question that actually was put to the jury. The insurance angle is an interesting way of looking at the question, but I don’t see that it reaches any more uniform or predictable results.

    But again, this verdict is just ridiculous.

    [TF: “Stroke” may be the wrong level of generality; a better one would have been the broader level of generality of “disability,” which includes all possibilities of becoming disabled, including many of those without solvent defendants who can be blamed—whatever the risk of that is, it’s a larger risk than the one faced at the hospital. People suffer adverse consequences and medical conditions all the time without hope of compensation.

    [A hundred years ago, Navarro simply would have died whether or not he saw a doctor. That he’s alive, and that there’s a plausible cause of action, reflects advances in medical technology and ability. The doctors don’t get $117 million for every stroke they prevent, or even $1 millon; my point is one should question whether the right incentives are in place if they face such bankrupting judgments for negligence.

    [Thanks for the insightful comments.]

  • The amount of money awarded is rediculous. How much is a life worth; I’ve quantified mine and after considering my wife’s earning power, present savings for 4 kids college and added expenses to make up for my absence have concluded that $2,000,000 will due. I’ve contracted with a life insurance company for this amount regardless of the mechanism of my demise during the term of the contract. If I don’t die, but become incapable of work I have 75% of my income assured through disability. Just because some means of croaking might seem repugnant to the individual does not mean that some deaths are worth more than others.

    How much did this guy value his life? Just look at how much insurance he thought he required.

  • I don’t believe the settlement offer was $300 in a case with total paralysis and a $1 mil. policy.

    Anyway, states can cap punitives. Florida might look into it, but I get the sense the legislature is like New York’s — controlled by plaintiffs.

  • Will be exiting the military soon after 14yrs in service and looking for a job as a urologist. Florida was #1 on my list but this kind of thing really makes me think twice.

  • Quick comment for Tom T: a physician assistant is a professional, not a layman. They have two years training in a professional program on top of a Bachelors degree; they typically get additional training beyond that. A physician assistant is licensed in most (all?) states and works with a physician, never alone.

    The issue, based on the information provided, may be that the physicians in question didn’t provide appropriate oversight to the PA. PAs make diagnoses but they have to be reviewed by an MD/DO.

  • Ted, thanks for your response. Snarky as I may be (damn the Internet!), I do agree that the tort law should not be in the business of driving good doctors out of busines.

  • Steve, according to the news stories, the “PA” was unlicensed and in fact had failed his licensing exam four times. The new article does make clear, though, that the plaintiff was seen by an actual doctor as well as the failed PA, so disregard my earlier remarks on that point.

    Still, the doctor did miss the stroke despite the plaintiff having described a “pop” in his head and a family history of strokes. It’s not clear to me that it’s any great loss if this particular doctor is driven out of practice. And contra Ted’s comment above, the fact that the plaintiff is alive today is attributable purely to luck; medical science may have made great strides in treating strokes, but because of the negligence by the doctor and the failed PA, none of that treatment was ever prescribed to the plaintiff until after the damage was done.

  • The damage to the man was done by a stoke. How would earlier intervention have helped him? A plumber can usually fix a leaky pipe, but a brain is not simple plumbing.

    This is the second case that I know off where doctors did tests responsibly, but were still punished for not curing the illness.

  • Early intervention, for instance with a clot-busting drug, can minimize the effects of stroke.

  • Tom T.

    Quick primer on “strokes”.

    Two types–ischemic and hemorrhagic. Ischemic are caused by occlusions of blood vessels by either plaques that have ruptured and scabbed over or travelling blood clots (and more rarely from other things). “Clot-busting drugs” or plasminogen activators are only used with ischemic strokes.

    From what I can discern from the media, this person had a subarachnoid hemorrhage, which is where a blood vessel breaks and blood spills into the brain. It is bad when blood actually touches brain tissue, instead of just supplying an oxygen source through the walls of the capillaries (small vessels).

    If we could travel back in time and help the ER doctors do everything correctly, let me tell you what would be the best outcome. He would have had a lumbar puncture, not to look for meningitis, but to look for red blood cells in the CSF or cerebrospinal fluid as evidence that he had a hemorrhage. THen if that was positive, he would have been admitted to the neuro ICU and given medications to reduce his blood pressure. A neurologist and neurosurgeon would have come by and the nurses would frequently check his neuro exam. Next he would either bleed more or stop bleeding, I’ve seen both. If he bled more he likely (not my field) would have gone for neurosurgey, but not to regain the lost brain tissue. After that he STILL WOULD HAVE HAD DEFECTS. That is what infuriates doctors about this. The outcome could have very well been the same.

    This case seeks to make the standard of care absolute perfection with perfect knowledge and 100% flawless outcomes. We do not live in perfectland. We live in reality. I agree with Samson, doctors will be leaving Florida (I am one of them regrettably) and then someone will sue the hospitals for failing to provide “coverage”.

    Perhaps if the public thinks they deserve flawless free care or else, they should just burn down all of the hospitals as none of them are perfect.
    b

  • Ted, your post quotes from GTL, which quotes from the Birmingham (Alabama) News, far removed from Tampa, the site of this incident, to suggest that this insurance company was heartless enough to offer a total of three hundred bucks to settle this case.

    Has it not occurred to ANYONE that the newspaper may have gotten it wrong? It is known to occur.

    My suspicion is that the offer was in fact Three Hundred Thousand Dollars. No one in a major malpractice case will offer $300 to settle it.

    If I were posting an entry on a weblog, I would have tried to track this information down before posting it. This may be a good example of proliferation of misinformation.

    Then again, I could be wrong. Tell me if I am.

  • Yclise: The Birmingham News reports that the plaintiffs’ attorney told the $300 story to the Tampa paper. I cite and link to the Tampa paper, which does indeed quote Yerrid’s $300 story, and it mystifies me why you raised this issue without checking the link I provided. Sure, Yerrid could be lying; the Tampa paper could be getting the story wrong (though they sure put a lot of work into the implication of a $300 offer); but it’s not the case that I didn’t report the best publicly available information.

    When I post a detailed entry on a weblog, I do a Google News search for the best coverage of the story, and will go into court records if they’re readily available on line (which they weren’t here).

    When ProAssurance releases its next 10-Q, it will have a paragraph about this case, and we’ll know more then.

  • “A physician assistant is licensed in most (all?) states and works with a physician, never alone.”

    This may be slightly off-topic, but a the definition of “alone” may vary. Florida law requires that PA’s and NP’s be within 25 miles of a physician’s main office, and that he may not have sattellite offices that are more than 75 miles from each other. In the past, ‘telephone distance’ (whatever that means) was sufficient.

    In this case, the physician was located in the ER with the PA. Not to blame the PA, but cases like this are the reason some ER’s aren’t taking PA’s anymore.