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Compensation for Life

CASE FACTS

This case concerned the inappropriate use of the anticonvulsant drug Dilantin by the defendant neurosurgeon, Dr. John Smith, M.D., causing a severe allergic reaction to his patient, Jane Jones. The reaction, called Stevens-Johnson Syndrome, led to scarring of the corneas and lids of Ms. Jones’ eyes so severe that she became legally blind.

The central facts of the case were undisputed. On a mid summer Friday, 13 year-old Jane Jones fell off a ladder and hit her head. She was taken to the hospital and admitted. The next day, Dr. Smith drained an epidural hematoma. Jane recovered and was sent home on August 1, six days after the head trauma. At discharge, Dr. Smith prescribed Dilantin. On Saturday, August 18, Jane was readmitted to the hospital with a severe case of Stevens-Johnson Syndrome. Despite near heroic efforts by several specialists at a major medical center to which Jane was transferred, she lost most of her sight and was rendered functionally blind, a permanent condition.

A careful review of the facts by expert physicians revealed that several reliable studies, published 3 or 4 years before Jane’s accident, had proven Dilantin ineffective seven days or more after the initial injury for the prevention of post head trauma seizures. Accordingly, because of the known potential for the development of Stevens-Johnson Syndrome, the studies recommended that Dilantin not be used for more than seven days after head trauma. Because neurosurgeons routinely had been prescribing Dilantin for several months following the initial trauma as a prophylaxis for seizures, there was slow and reluctant recognition of any change in the standard of care. Dr. Smith did not think he had done anything wrong, and he had no problem finding fellow neurosurgeons who agreed with him.

CHALLENGES

From a pure legal perspective, the case would clearly be an expensive, classic battle of the experts. The standard of care question would require the testimony of several highly qualified neurosurgeons. The defendant’s contention that Dilantin does not cause Stevens-Johnson Syndrome put the Plaintiff, Jane, in the position of having to hire pharmacology and neurology experts to prove otherwise.

As a practical matter, Jane’s family did not have the resources to pay the estimated $100,000 to $150,000 cost, separate from attorney fees, to fund the case through trial. Success or failure would turn on whether a jury thought Dr. Smith should have changed his ways to conform to the new studies or whether they would believe the defense position that the studies were interesting but insufficient to change what Dr. Smith should have done in Jane’s case. (See jury instruction)

Jane would have significant, life long challenges as a result of her blindness. The quality of her life would be dramatically different depending on whether she could get adequate compensation from her case. As a polite and attractive teenager, she was a witness the jury would like. Our experts had impressive credentials, but so too did the defendant’s experts.

We thought long and hard, took a deep breath, and agreed to take the case and advance the costs.

Virginia has a process, originally intended to be a screening device for frivolous cases, called Medical Malpractice Review Panels. They are made up of two doctors practicing in the specialty of the defendant, two impartial lawyers drawn from a list maintained by the Supreme Court of Virginia, and a Circuit Court judge who sits without a vote and rules on procedural matters. The panel is not authorized to award damages. It considers the evidence and the arguments of both sides and then renders a decision by majority vote that is a selection of 1 of 4 statutorily prescribed opinions.

The opinion is not binding, but it and the vote on it may be made known to the jury at the later trial. Either party may request a Medical Malpractice Review Panel. In our case, such a panel was requested by the defendant. We lost, 4-0.

SOLUTIONS

For a number of tactical reasons, we had not put our entire case on in the Medical Malpractice Review Panel, and the defense knew it. With trial looming, the parties started exploring settlement. Both sides knew they could lose, but a loss would have dramatically different outcomes for the parties. If the doctor lost, his insurance company would pay the verdict, and he would go on with little, if any, impact on his life and livelihood. By contrast, a loss for Jane would eliminate the chance for any compensatory support beyond government and charity programs. It would also have a major effect on her single parent household, as her needs in the early years of her blindness would limit available working hours for her mother. She and her family were in the classic position of deciding what part of the loaf was better than risking none.

At the time, Virginia law did not permit a malpractice recovery of more than $1,000,000. She could receive no more than that amount, regardless of the jury’s award. About $75,000 had been spent on case costs through the Medical Malpractice Review Panel stage. It would cost another $30,000 to $40,000 to try the case.

We used a focus group to give us some independent, juror-like, feedback on the case. We had the testimony of the parties from the Medical Malpractice Review Panel and, of course, members of our client’s family were available to offer testimony to the focus group. Results of the focus group effort revealed that a small percentage of the participants were highly sympathetic to Jane and inclined to give her a high award. On the other hand, a substantial majority thought Dr. Smith came across as a thorough, honest, and competent doctor who they were inclined to believe.

Armed with the foregoing information, we engaged in negotiations with the defendant’s insurance carrier. Early offers and demands were at the extreme ends of the spectrum, but ultimately the parties found themselves hovering on either side of half of a million dollars. The parties agreed on $475,000 in present dollars, with a portion of that amount to be paid to a life insurance company that would make monthly payments to her for the rest of her life. Her attorney fees were paid. The costs advanced on her case were reimbursed and a lump sum of about $100,000 dollars was placed in an Irrevocable Trust for her benefit as she was a minor at the time of the settlement.

ATTORNEY COMMENT

This case illustrates the difficult decisions often encountered in cases with life altering injuries where the Plaintiff is confronted with all or nothing compensation choices by gong to trial. Could Jane have obtained the maximum $1,000,000 recovery if she had gone to trial? Yes. Could she have suffered a defense verdict or a verdict that was insufficient to cover more than costs advanced and attorney fees? Certainly.

The “half a loaf is better than none” outcome in this case did not provide the maximum dollars permitted by Virginia law, but it did provide funds for Jane to get quality help in the form of education and other programs for her special needs, a lifetime monthly stipend and a lump sum of cash for the beginning of her adult life.

Nothing could give Jane her sight back, but today Jane owns her own home, has a modest monthly payment, works and enjoys the family that stood by her when tragedy struck. We are pleased to have been part of that success story.