A recent large medical malpractice verdict in New Mexico was probably due at least in part to the “ick” factor of the injury.
The jury awarded the plaintiff $412 million, of which $37 million was actual damages to compensate him for the injury he suffered, and another $375 million in punitive damages to punish the defendant and to discourage others from engaging in similar conduct.
The story began when the plaintiff, who was 66 at the time, went to a men’s health clinic because he was feeling fatigued and wanted to lose some weight. The clinic operates in a number of states across the country and specializes in treatment for erectile dysfunction and testosterone replacement therapy.
According to the plaintiff, a physician assistant staff member at the clinic ran some tests and told him that he had a condition that needed prompt treatment to avoid permanent injury. The treatment he was told he needed involved injections into his penis. He was given an injection and it went badly, leaving the plaintiff in need of immediate medical treatment. Plaintiff contended that the clinic delayed responding to his medical emergency, which resulted in permanent damage to his penis. Finally, he contended that he did not have the problem the clinic told him he had and that the whole thing was a scheme to scare him into receiving costly, unnecessary injections. The jury agreed.
As I have written in the past, large malpractice verdicts usually have some things in common. Among those things are a significant injury, a good trial lawyer, and an X factor. Here it appears that the X factor was the nature of the injury and the likelihood that it made the jurors squirm even to think of it. We don’t like to talk about the intimate parts of our bodies and certainly don’t like to think about injuries to those parts. We are likely to have a strong, negative, emotional response to such injuries. Add to that allegations that the defendants were acting in furtherance of a fraudulent scheme and that the plaintiff did not need the injection in the first place and you have the perfect recipe for a huge verdict.
Not surprisingly, the defendants promise an appeal. They will likely find a sympathetic ear at the appellate court, especially as it relates to the punitive damage award. The United States Supreme Court has held that as a matter of Constitutional law, punitive damages must bear a reasonable relationship to the amount of the actual damages. Here the punitive damages award was 10 times the actual damages award. In all likelihood, the appellate courts will find that the punitive damage award is unreasonably high and must be reduced. This is separate and apart from whatever other appealable issues the defendants offer, which will undoubtedly include the claim that the amount of the damages award alone indicates that the jury was swayed by passion and prejudice and that the entire award should be thrown out and the matter remanded for a new trial.
Verdicts in favor of the patient are hard to come by in medical malpractice cases, but you rarely hear about all the verdicts in favor of the doctors and hospitals. If, however, there is a substantial verdict in favor of a patient, that almost always makes the news. Hearing only about large verdicts, the public is to be forgiven for thinking that doctors and hospitals are the victims of a runaway jury system that does not treat them fairly. Large verdicts are also usually reduced during post-trial motions or on appeal. Think of those things the next time you hear about a large malpractice verdict.
