[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.)