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Posted by Bill Sandweg.

I recently wrote that most large medical malpractice verdicts share some things in common.  Here is a recent Idaho verdict that demonstrates the point.

An ischemic stroke is one in which blood flow to the brain is interrupted by a blood clot or some other mechanical obstruction.  All of the brain downstream of the blocked area will suffer from the loss of its blood supply.  Brain cells may die or be permanently damaged.  Depending on the size and location of the obstruction, the effects of the blockage can be mild or devastating.  In any event, the faster a stroke is recognized and blood flow restored, the better for the patient.  As neurologists put it, when it comes to an ischemic stroke, “Time is brain.”  Everyone who treats potential stroke victims knows these important facts.

On the morning this sad series of events began, a wife found her husband on the bathroom floor with a terrible headache, vomiting, and confusion that seemed to be getting worse.  She called 911.  Fortunately, they lived close to a good hospital and within a few minutes her husband was being examined by an emergency room (ER) physician.  The ER physician considered the possibility of stroke and ordered a CT scan of the neck and head to determine if there was a blockage or some problem with circulation to the brain.  A CT scan is a computer-enhanced form of x-ray that allows an area to be viewed in three dimensions.  The CT was interpreted by a radiologist as showing essentially nothing going on in the brain.  The radiologist was wrong as there was a tear in one of the arteries of the neck that delivers blood to the brain and the patient had suffered a stroke as a result.  Believing that there was no stroke, the ER doctor diagnosed the patient with positional vertigo, a mild condition, and asked that he be admitted to the hospital for observation.

As often happens these days, there was no hospital bed immediately available for the patient, so he stayed on a bed in the emergency department while awaiting a room.  It is a sad fact of life that patients who have been evaluated in the ER and are awaiting a bed do not get monitored with the same degree of attention that they would get had they been in a regular room.  The patient’s condition deteriorated and no one recognized the fact.  By the time he reached a room, he was described as being “delirious without meaningful interaction.”

It took four or five hours for him to be seen by a doctor after reaching his room.  The ER doctor had recommended an MRI of the brain, if his condition did not improve, but the MRI was “unavailable” for a period of hours.  When the MRI was finally performed, the stroke and the arterial tear were discovered, but by then it was too late to save all of the patient’s brain function.  The final determination was that he had an irreparable brain injury, was totally disabled, and would need substantial medical care for the rest of his life.

The patient and his family sued the ER doctor and the group employing him, the hospital, the group employing the radiologist who misread the CT scan, and some other doctors.  Everyone denied they were at fault but, by the time of trial some six years later, everyone else had settled except the ER doctor and his group.

The jury returned a verdict in favor of the patient and his family in the amount of $13.5 million, the second largest malpractice award in Idaho history.  In so doing, the jury found that the conduct of the ER doctor was not just negligent but was “willful or reckless.”  This cleared the way for the jury to award more for pain and suffering than the $400,000 limit imposed by Idaho law.  Needless to say, the patient and his family were pleased and the ER doctor and his group were disappointed.  With this much money at stake, an appeal will certainly be filed.

So what does this verdict have in common with other large verdicts?

A tragic injury:  Check.

A loving family:  Check.

Large medical bills:  Check

Large wage loss:  Check

Good Trial Lawyer:  Check.  Plaintiffs’ counsel here has won many awards for his excellence as a trial lawyer.

X-factor:  Unknown.  It is unclear from the press accounts what prompted the jury, not just to find for the plaintiffs, but to conclude that the care given by the ER doctor was aggravated.  Clearly something set them off.  After all the ER doctor had been misled by the radiologist, who assured him there was no stroke and who also failed to detect the torn artery in the neck.  Furthermore, in cases such as this the jury will surmise that the radiologist and the other defendants who were not a trial had paid the plaintiffs some money and reduce the plaintiff’s recovery accordingly.  Whether the X-factor was extreme sympathy for the plaintiff or whether the ER doctor acted like a jerk on the stand, I cannot tell but something caused this jury to act in a manner different from most malpractice juries, which usually find in favor of the doctor or hospital.

Although it will not get anything like the publicity the jury verdict received, there will be an appeal, which may throw the whole verdict out, or may reduce the award, or do any one of a number of other things that are favorable to the defendants.  Often, the plaintiffs agree to accept a lesser figure in settlement while the case is on appeal rather than trust the outcome to the appellate court.  Especially in a conservative state like Idaho, the appellate courts will be on the conservative side and plaintiffs know that.  Check back in a year or two to see what happened.