Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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I have a report of a $1.1 million jury verdict returned Wednesday in Hinds County Circuit Court in a case tried before Judge Winston Kidd.

The reported facts are that it was a wrongful death case. The decedent had stomach ulcer surgery and was released from the hospital. After discharge the ulcer hemorrhaged, causing the death. I assume that the plaintiff alleged that the surgery was not properly completed and the decedent should not have been released from the hospital.

Alton Peterson was the plaintiff's lawyer. Defense lawyers were Whit Johnson, Stephen Kruger and Marc Caraway. I do not yet know the identity of the parties.

I will post an update if I obtain more information.

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I've heard that in recent weeks there was a medical malpractice trial in Madison County Circuit Court with Judge Samac Richardson presiding. During the trial one of the jurors started having a seizure or some similar type of medical emergency.

At the time, Plaintiff's doctor expert was on the witness stand. The witness doctor froze. Meanwhile, the Defendant doctor rushed to the jury box to provide assistance to the sick juror.

Needless to say, Judge Richardson had to order a mistrial. I wonder who would have won after that episode?

I would love to get more information on this trial, so please contact me if you can verify this story or provide more details. I do not reveal the names of sources in posts if the source does not want me to.

Medical malpractice defense lawyers are more secretive than the CIA about their trials, most of which they win. What ever happened to self-promotion?

Update: John Christopher represented the plaintiff and Whit Johnson with Currie Johnson represented the defendant.

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On April 14, 2010 the Circuit Court of Forrest County, Judge Dale Harkey, rendered a verdict of $579,789 in the med-mal case of Jessie Lee Johnson v. Forrest General Hospital. Here is a copy of the Court’s findings of fact and conclusions of law.

The Plaintiff underwent a successful knee replacement at Forrest General in 1998 and was transfered to the rehabilitation unit in the hospital. Two weeks later, plaintiff’s knee was injured.

Plaintiff alleged that the injury occurred when an aide assisted her to the restroom. She stated that the aide did not put down the foot rest on plaintiff's wheel chair and plaintiff’s foot caught the floor, causing the dislocation of her knee. Multiple additional dislocations followed. Ultimately, a new knee was installed. But the knee became infected and her leg was amputated above the knee.

The aide disputed plaintiff’s testimony. She stated that no accident happened and that both foot rests were on the wheelchair when she transported plaintiff. In addition, the hospital argued through expert testimony that the injury could not have occurred as plaintiff described and that the knee installation was sub-standard, which caused the dislocation.

As an aside, defendants love to dump on other health-care providers in med-mal cases when the other providers weren’t sued (they are “empty chairs”). But when the plaintiffs sue everyone in sight, the providers circle the wagons and go with some variation of a causation defense. This is a big reason that plaintiff lawyers are so cynical towards doctors.

The court weighed the evidence and decided that the plaintiff was telling the truth. The Court did more than take the plaintiff’s word for it. The Court considered evidence of a late nurse’s note that cast suspicion on the hospital’s account of the injury and compared plaintiff’s account to objective evidence in the medical records.

The Court assessed damages of:

• $199,789.54 for medical expenses
• $380,000.00 pain and suffering from at least 7 dislocations and the amputation.

The Court did not enter a final judgment because of the $500,000 cap in Tort Claims Act cases. The Court requested briefs on the Act and the limits of applicable insurance coverage.

Jennifer Ingram Wilkinson of Hattiesburg and a New Orleans firm represented the plaintiff. Gene Parker of Hattiesburg [correction: Vicksburg] represented Forrest General.

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On Friday Judge Allen Pepper in the U.S.D.C. for the Northern District awarded a total of $1.25 million in Sims v. U.S., a Federal Tort Claims Act case involving the VA Medical Center in Memphis. Here are the Court's Findings of Fact and Conclusions of Law.

The plaintiff was left partially paralyzed as a result of medical negligence by the V.A. $425,000 of the damages were to the plaintiff’s wife for loss of consortium. The plaintiff’s damages were broken down as $250,000 for pain and suffering and $850,000 for loss of enjoyment of life.

Plaintiff’s counsel were Mark Lumpkin and Matthew Mestayer of Biloxi and Jeanne Steffin from California. Sam Wright and John Gough from the U.S. Attorneys office in Oxford defended the case.

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The Healthcare Finance News is reporting that: “Fewer medical malpractice payments were made on behalf of doctors in 2009 than any year on record, according to the National Practitioner Data Bank.” And: “This finding contradicts claims that medical malpractice litigation is to blame for rising healthcare costs and that changing the liability system to the detriment of patients will not curb costs.”

The article contains statistics to back up the claims:

The value of malpractice payments was also the lowest since 1999. Adjusted for inflation, payments were at their lowest since 1992, a Public Citizen analysis of the NPDB shows.

According to the analysis, healthcare spending rose 83 percent from 2000-09, while medical malpractice payments fell 8 percent (both figures are in unadjusted dollars.)

A total of 10,772 payments were made on behalf of doctors in 2009, totaling $3.49 billion. That figure equals 0.14 of 1 percent of the Centers for Medicare and Medicaid Services’ estimated $2.5 trillion in overall U.S. healthcare spending for 2009.

Last year was the fifth consecutive year that the number of payments has fallen and the sixth straight year in which the value of payments has fallen, according to the analysis. In contrast, U.S. healthcare costs have increased every year since 1965, the first year the data was recorded.

Meanwhile, most valid med-mal claims are never filed:

Studies have found that injuries and deaths caused by medical errors dwarf the number of actual medical malpractice payments. For example, the Institute of Medicine found in 1999 that 44,000 to 98,000 people die every year due to avoidable errors.

The comments to  the article are also worth reading. In one comment a person with 25 years experience in med-mal claims states that there is no relation between healthcare costs and medical malpractice lawsuits.

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On Wednesday the Clarion-Ledger reported a $500,000 verdict against University of Mississippi Medical Center (“UMC”) in a Hinds County Circuit Court bench trial. Judge Tommie Green presided in the case and rendered the verdict.   

The case resulted from the 2005 death of 28–year old Tamika Foster less than 48 hours after the emergency delivery of a baby. The case appeared to focus on UMC’s failure to consult a hematologist despite a low blood platelet count. The article explains:

An autopsy determined Foster died as a result of myocardial ischemia with arrhythmia, secondary to thrombotic thrombocytopenia purpura with a history of HELLP.

Thrombotic thrombocytopenia purpura, a much more deadly illness than HELLP, was never diagnosed prior to Foster's death, Green said

Medical experts have defined TTP as a rare disorder where small blood clots form suddenly throughout the body, leading to a sharp decrease in the number of platelets in the blood stream.

The case was decided in a bench trial because the Mississippi Tort Claims Act requires bench trials in lawsuits against government entities, which includes UMC. The Act also places a hard-cap recovery limit of $500,000 for both economic and non-economic damages. Judge Green set the Plaintiff’s damages at $1.2 million and then reduced the verdict to $500,000 to comply with the Tort Claims Act.

David Dunbar of Jackson represented the Plaintiff. Walter Johnson of Watkins Eager in Jackson represented UMC.

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In November the American Association of Justice published this report identifying five myths about medical negligence (malpractice).

The identified myths are:

1. there are too many frivolous malpractice lawsuits;
2. malpractice claims drive up health care costs;
3. doctors are fleeing;
4. malpractice claims drive up doctors’ insurance premiums; and
5. tort reform lowers insurance rates.

Note: Yesterday's Natchez Democrat contained this article by attorney Sam Gwin that covered some of these issues in Mississippi.

The AAJ report then debunks each myth. Key points include:

• medical negligence causes 98,000 hospital deaths per year;
• there have been steady declines in the last decade in the number of malpractice lawsuits and the amounts of settlements and verdicts;
• the vast majority of filed medical negligence cases have merit;
• the amount spent to defend and compensate victims of medical negligence is .3% of health care costs;
• much of the “defensive medicine” is performed to generate more revenue for health care providers; and
• insurance premium levels are generally the same in states with damages caps as states without damages caps.

I would add another myth to this list: the myth that damages caps affect frivolous lawsuits. This might be the biggest myth of all. Proponents of damages caps argue that they are needed to address frivolous lawsuits, but it's cases with merit and severe damages that caps impact.

The public does not understand this. The public believes that caps affect frivolous cases and are surprised when you explain that caps restrict the recovery of victims of catastrophic injuries to an amount that is less than full compensation.

I am not convinced that damages caps will be permanent. At some point, there could be public backlash similar to what has happened with consumer arbitration. I have no doubt that the public supports legitimate attacks on frivolous suits. I do not believe that an informed public would support damages caps. Both courts and legislatures have a tendency to gravitate to public opinion.

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Tuesday night it was reported on the MAJ list service that Jackson plaintiff attorney Joey Diaz obtained a $4.6 million verdict Tuesday in a medical malpractice case, with the trial proceeding to the punitive damages phase. The email that was forwarded to me contained no other details.  I will post more information if it becomes available.

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In a 6-2 vote the Mississippi Supreme Court reversed the Court of Appeals today and awarded summary judgment to the defendants in Estate of Northrop v. Hutto. This was a medical malpractice case where the Harrison County Circuit Court (Judge Lisa Dodson) granted summary judgment to Gulfport Memorial Hospital and other defendants on the grounds that the plaintiff's expert witness did not articulate the required standard of care. The Court of Appeals had reversed the trial court.

Reading between the lines, it appears that the plaintiff's expert was unsophisticated as an expert witness and did not understand what the phrase "standard of care" means. Since the expert did not understand the concept of standard of care, he was unable to articulate the standard. Justice Randolph's majority opinion noted that:  

The success of a plaintiff in establishing a case of medical malpractice rests heavily on the shoulders of the plaintiff’s selected medical expert. The expert must articulate an objective standard of care.

The opinion then heavily quoted the expert's deposition, including testimony like:

Q: So, obviously, Doctor, this would not indicate the standard of care in Marchof 1999, would it?

A: I don’t -- I’m not sure what you mean by describing the standard of care. None of [the documents brought to the deposition] deal with the standard of care. They are all case reports of infiltration, different problems with extravasation. I have not brought anything on the standard of care if that’s what you’re referring to.. . .

Q: . . . There is no textbook of anesthesia that says in writing the standard of care requires visual or palpation observation of the fluid actually going into the vein during an ongoing case; that is correct?

A: That is correct. 

Arguably this last question was a trick question, since medical textbooks typically do not articulate the legal "standard of care." A testifying expert must understand that the phrase "standard of care" means articulating what exactly a minimally competent physician would have done in providing reasonable care to a patient. Stated another way, the expert simply must identify what the defendant should have done and state that this is what the standard of care required.

This case is an example of why plaintiff's attorneys have to be very careful in cases requiring expert testimony. just having an expert who "makes a good witness" or looks good on paper is not enough. The expert must also understand what the plaintiff must prove in order to establish a case and be able to articulate opinions that satisfy the plaintiff's burden. That burden includes identifying what the standard of care required the defendant to do. It is also worth noting that although the defendant does not have the burden of proof, defense experts must also be able to articulate the standard in order to be allowed to testify at trial.

This was a fact specific case with little significance to other cases other than serving as a caution signal to lawyers to make sure that their expert witnesses are prepared to testify.

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On Thursday the Mississippi Supreme Court affirmed two jury verdicts.

The first was Young v. Guild, which was a medical malpractice case against a psychiatrist. The plaintiff alleged that the defendant was negligent in failing to prevent the suicide of one of his patients. In 2004 a jury in the Circuit Court of Yazoo County rendered a defense verdict at the end of a three day trial. Defense counsel was Whit Johnson and plaintiff's counsel was Ronald Kirk. The Court affirmed the judgment with Justice Chandler authoring the majority opinion joined by Justices Carlson, Randolph, Kitchens and Pierce. Justice Graves concurred in the result only and Justice Lamar dissented in an opinion joined by Justice Dickinson.

The appeal issues involved jury instructions, apportionment and the admission of evidence. The Court found that the plaintiff waived apportionment by not raising it in an interrogatory response, that the jury instructions were proper and that the trial court did not abuse its discretion in the evidentiary rulings. The dissent argued that the trial court's jury instructions did not properly set forth plaintiff's theory of the case. It's pretty rare for me to believe that jury instructions materially altered the outcome of a trial, so I am putting this case in the category of "move along folks, there's not much to see here." It looks like the defendant won fair and square. 

The second case was Horseshoe Casino v. Mitchell, which was a casino slip and fall case that resulted in a January 2008 jury verdict and judgment for the plaintiff in the amount of $56,000 in the Circuit Court of  Tunica County. Unaccustomed to losing, the casino appealed. To me, if you are going to appeal a $56,000 jury verdict you should be real sure that there was error, since the attorney's fees and expenses in connection with the appeal will be significant. There is a reason that appeals courts aren't deciding many appeals from county court.

The main issue on appeal was whether the trial court properly excluded evidence of a collateral source. The Court found that there is a narrow impeachment exception to the collateral source rule, but the trial court correctly did not apply the exception in this case. Justice Randolph wrote the Court's majority opinion. Justice Dickinson wrote a concurring opinion. Justice Kitchens wrote a dissent joined by Justice Waller that argued that there should be no exceptions to the collateral source rule. The main take away from this case is that unlike on the casino floor, the casino can actually lose at the courthouse.

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 A Canadian Medical Association article compiles statistics from several studies regarding medical malpractice and the compensation of its victims. Studies show the following:

In 2004, Healthgrades, an independent health care ratings company.... [examined] 37 million patient records from all 50 states, representing 45% of all US hospital admissions, found 195,000 hospital deaths from preventable medical errors annually between 2000 and 2002, (www.healthgrades.com).

In 1990, Harvard researchers examined more than 30,000 randomly selected records from New York hospitals. They concluded that 1% of patients were negligently injured, while only 4% of those who were injured, sued.

Harvard researchers [concluded that jury awards and settlments were fair] when they examined files from 1452 malpractice claims (NEJM 2006;354[19]:2024-33). Almost three-quarters had outcomes consistent with their merit. Only 10% of patients received payouts in the absence of error, while 16% received no payout despite the presence of error. "Portraits of a malpractice system that is stricken with frivolous litigation are overblown," the researchers concluded. The system performs "reasonably well" in dismissing such lawsuits and in compensating the injured.

The article also cited studies that show that jury awards are keeping up with the costs of medical care and are not out of line.

Attorneys who represent medical malpractice victims will not be surprised by these statistics. Experienced med-mal attorneys decline to accept the vast majority of cases that they review. Of the cases accepted, the negligence appears clear with substantial damages. But even with stringent screening, med-mal cases are difficult to win with juries looking for reasons to find for the physician or hospital.

There is also a "circle the wagons" mentality among physicians in Mississippi. This results in open hostility by physicians to plaintiffs and their attorneys, even from doctors who are not defendants in the case. In addition, Mississippi physicians almost never admit that another physician was negligent or that negligence caused the victim's injuries. This stacks the deck in favor of medical defendants in Mississippi.  

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In its March 7, 2009 print edition, the Clarion-Ledger editorializes about the 60% decline in premium costs for medical malpractice insurance for physicians since the passage of tort reform legislation. I was not able to find the editorial on-line in order to link it.

The Ledger points out that the plaintiff's bar wrongly predicted that malpractice premiums would not decline following tort reform. While this is a true statement, the Ledger is wrong to give all the credit to legislative tort reform. I believe that there were at least two other factors that had a significant impact on malpractice premiums.

First, a court-imposed change in multi-plaintiff joinder laws. In the late 1990's and early 2000's, physicians were being named as defendants in pharmaceutical and other mass tort cases filed in Mississippi. In many instances, the physicians were not really target  defendants and were sued in an effort to prevent out of state corporations from removing the cases from state court to federal court. But the physicians' insurance carriers had to hire lawyers to defend the cases. And since the nature of multi-party mass tort cases makes them more expensive to defend, medical insurers had to spend a ton of money on defense costs in cases that the doctors should not have even been in. 

At some point--and I do not remember the exact year--joinder laws were changed so that each plaintiff had to file and litigate his case individually. Once that happened, out-of-state mass tort lawyers largely left the state and the number of filed cases in which doctors were "venue" defendants decreased significantly.    

 The second factor not identified by the Ledger was the perception by some in the plaintiff's bar that the Mississippi Supreme Court would not affirm a plaintiff's verdict in a medical malpractice case. This had a chilling affect on the number of malpractice cases filed. It should be noted that in recent months the Supreme Court has affirmed at least two medical malpractice verdicts.

If the Ledger was correct that tort reform was the sole reason that doctors' insurance premiums declined, then wouldn't all liability premiums be lower? My personal experience with insurance premiums is that my malpractice premiums have gone up and my personal general liability coverage has not decreased.   

Hopefully, the sea-change in the litigation climate will settle down physicians and decrease the open hostility by some doctors towards the plaintiff's bar.