Posted by Bill Sandweg on 05 June 2023.
You read about them in the papers, if you still read the paper. More likely you hear about them on line or on your favorite cable news show. They are the large medical malpractice verdicts. Depending on the politics of the source of your news, the large verdicts may be reported with awe, derision, compassion for those injured, or outrage that a jury could award such an amount. If you look closely, you will see that these verdicts almost always share certain characteristics.
A Catastrophic Injury or Death
Before a jury will award a large sum of money, there has to be a serious, permanent injury or death. In my experience, juries are reluctant to award money in smaller cases or when the patient has made a good recovery from the injury caused by the malpractice. So if you are hearing about a large verdict, the patient is either paralyzed, in a vegetative state, dying, or dead, or something similarly tragic.
A Large Economic Loss
If the patient is still alive, she or he will almost always need a lot of very expensive medical care for the rest of his or her life. Life care planners will have testified that the present value of this care is in the many millions of dollars. There may also be a large component of lost wages. If the patient has died, there will usually be many years of lost wages, which would have been earned but for the death.
Big Medical Bills and Liens
Catastrophic injuries usually mean large medical bills. Since Arizona allows the defense to tell the jury if the patient’s medical bills have been paid in whole or in part by insurance, the big verdict usually means that there was no or little to no health insurance or, if there was insurance, there are health care liens that will have to be paid out of any award.
A Loving Family
Juries are like the rest of us. They like nice people and do not like rude people. They feel sympathy for those who have been injured and those who have been left behind. One of my old mentors told me, “Juries give money to people they like.” I have found that to be very true over the years. If you see a large verdict, you can be pretty confident that the jury liked and felt sorry for the victim. If the case is a death case, the jury liked the spouse who was left behind, or the parents, or, even more importantly, the young children who will be missing a parent for many years.
A Good Trial Lawyer
Large verdicts don’t grow on trees nor do they fall out of trees at the feet of inexperienced or poor quality lawyers. A medical malpractice trial is much like a symphony and the trial lawyer for the plaintiff is the conductor. She or he must select and bring to the courtroom the expert witnesses who will educate the jury on the issues in the case and the medicine involved. She or he must understand the medicine and be able to successfully examine the expert witnesses and cross-examine those of the defendants. He or she must be able to write well to respond to the inevitable motions brought by the defense. More so than most other kinds of trials, an experienced, talented lawyer is an essential ingredient for a large medical malpractice verdict.
An X Factor
Although not present every time, most large verdicts have an X factor in them. Something that excites the jurors or makes them mad. Something that makes them interested in making a large award to the patient or the patient’s family. It may be infighting among the defendants as to who is responsible for the tragedy. The surgeon may blame the nurse and the nurse may blame the surgeon. It may be that records have been altered after the fact. It may be that the defendant doctor makes a very bad witness and comes across as an unfeeling jerk. It may be that the jury concludes the doctor was cutting corners to make more money. All these are examples of an X factor that can turn a significant verdict into a very large one.
The final commonality among large malpractice verdicts is that they are almost always appealed. The defendant is insured and the insurance company has plenty of money to finance an appeal. Even if the appeal is not that strong, the insurance company may be able to use it to leverage a reduced payment amount.
All of these factors don’t have to be present in every large malpractice verdict, but many of them are present every time a big verdict is returned. I cannot and don’t want to provide the tragically injured patient but I can provide the good, experienced, medical malpractice trial lawyer.