Tort reform may render it the last blockbuster of its kind
By Natalie White Contributing writer
In one of the largest medical malpractice verdicts in U.S. history, a Florida jury awarded $216.7 million to a Tampa man left brain-injured and disabled after emergency room personnel misdiagnosed a stroke as a headache. The award included more than $100 million in punitive damages. The verdict is the nation’s largest medical malpractice verdict so far this year, the third largest in U.S. history and the largest in Florida history, according to attorneys for the family. But it is likely to be the last large malpractice verdict in Florida, according plaintiffs’ attorney David Dickey. He said the state’s cap on non-economic damages in medical malpractice cases, which went into effect in 2002, could prevent complicated, labor-intensive cases such as this from going to trial. “This case shows why you shouldn’t have limits,” he said. “In this case, lawyers were able to discover what really happened and [prevent the defendants] from getting away with a cover-up. You won’t see these types of cases going forward anymore.” The damage caps didn’t apply to this case because it was filed before 2002. As for the size of the verdict, lead plaintiffs’ attorney Steve Yerrid contends that it is an appropriate amount for man who sentenced to a living nightmare and can no longer play or communicate with his 10-year-old son. “It’s not surprising that the verdict was this large,” said Yerrid. “It is a devastatingly large loss. This case acts as a testimonial that the system still works. The jury found fault and recognized the magnitude of this family’s loss in dollars and cents.” He said the jury’s award was intended both to punish the defendants and to serve as a deterrent to prevent similar errors in the future. The jury found Dr. Martin Austin and physician’s assistant Mark Herranz each 25 percent responsible and assessed the remaining 50 percent of the liability to Dr. Austin’s practice, the Carrollwood Emergency Physicians and its affiliate Franklin, Favata & Hulls.
An amateur diagnosis
Allan Navarro was paralyzed in 2000 after a physician’s assistant – who had failed a state licensing exam four times – examined him in the emergency room and concluded that the intense pain in his head was caused by a sinus infection. In fact, Navarro had suffered a stroke. But the doctor in charge at the time did not examine Navarro and sent him home based on the evaluation of the physician’s assistant. Yerrid told the jury that his client was experiencing classic signs of a stroke, such as his description that he felt a sudden pop in his head before the onset of his headache. He was also dizzy, nauseous, confused and unsteady on his feet. Furthermore, Navarro told hospital personnel that his family had a history of strokes. But after five hours in the emergency room at the University Community Hospital-Carrollwood, the doctor sent Navarro home with a painkiller and some antibiotics, telling him he had a headache from a sinus infection. Yerrid said medical experts testified that if his client’s brain swelling had been checked earlier, the damage would have been much less. “When they sent him home, he lost the window for a cure,” said Yerrid. “He still could have had a relatively normal lifestyle.” A one-time professional basketball player in his native Philippines, Navarro was 44 years old and working as a machine operator at the time of his stroke. The morning after his first visit to the emergency room, Navarro woke with excruciating head pain, slurred speech and nausea. He was confused and had trouble walking. He was readmitted to the emergency room at 6 a.m. but the stroke still wasn’t diagnosed until that afternoon, when he was transferred to a sister hospital for surgery. But by then the stroke had already done a great deal of damage. During surgery, Navarro slipped into a coma which lasted for four months. He is now completely paralyzed in three limbs and has only limited use of his one functioning hand. As a result, he is confined to a wheelchair and has no control over his bladder or his bowels. He cannot play with his 10-year old son, or hug his wife, Yerrid said. “It’s a nightmare for them, and the nightmare will go on,” he said.
A surprise development
According to co-counsel Richard Gilbert, the turning point occurred when one of the defense attorneys withdrew three years into the case, citing a conflict of interest. The late withdrawal didn’t make sense to Gilbert, and he suspected something was amiss. “I thought there must be some conflict with the testimony,” he said. “Someone thought someone was lying. We filed to reopen the depositions.” The defense was contending at the time that although the physician’s assistant had seen Navarro, the doctor had actually done the exam. Even during the second round of depositions, the physician’s assistant, who died before trial, insisted that he was “just a scribe” and had not done the final exam, according to Gilbert. “At the time we didn’t know the exam had been done by an unlicensed person. We were still being led to believe that it was done by a doctor or at least redone by a doctor,” Gilbert said. But when the doctor was deposed a second time, he admitted that he did not examine Navarro and that he didn’t know whether the physician’s assistant was qualified to make such an assessment. The jury was clearly outraged by the attempts to cover up the mistake. After awarding $116.7 million in compensatory damages on Sept. 29, the jury hammered the defendants a second time with a punitive award of $110.1 million. The family and their attorneys said they will donate the entire punitive award to charities dedicated to helping people with spinal cord and brain injuries. Yerrid said the defendants made only one settlement offer – $300. “Astounding, isn’t it?” he said. “That’s one hundred dollars for each claimant.” Yerrid said he couldn’t explain the paltry sum and the defense lawyers declined to comment on the case.
Pumping up the damages
Although the $116 million in compensatory is large in comparison with those awarded for other devastating medical errors, Yerrid said it is trivial next to the suffering of the family. He asked the jury to award “tens of millions of dollars” that would “adequately demonstrate the enormity of the injury and devastation.” A life care planner testified that it would cost $15 million to care for the plaintiff over his 25-year life expectancy. But the medical costs were only part of the equation. Because Navarro was not earning a lot of money prior to the devastating medical error, Yerrid put a new twist on the lost wages argument. He asked jurors to consider that his client now has a 24/7 job, a job that he can never quit, a job that causes him and his family only misery and pain, a job that he will have to do for the rest of his life. “He’s a prisoner in his own body. There never will be any recovery, just slow, horrible deterioration and one day, maybe a merciful death,” Yerrid said. As for the enormity of the compensatory award, Yerrid said many intangibles came together. “The only way to explain it is there was a little bit of magic,” he said. “It’s a combination of things that come together in the courtroom. We had a great legal team, great clients and a compassionate jury willing to see the truth.” In spite of the gigantic award, Dickey said the money will do little to change the lives of the plaintiff and his family, although it may ease some of his physical discomfort. The family is looking for a computer device that would help Navarro communicate. “Some people look at the verdict and say, they’re rich. It really doesn’t convert to any large difference in their lives,” he said. “Their lives aren’t any better today than they were yesterday because of the profound nature of Allan’s injuries.
Getting the right jury
Yerrid said jury selection is critical in medical malpractice cases such as this because the tort reform lobby has done such a good job creating a general bias in favor of doctors and health care providers. “The insurance lobby has poisoned the general public,” he said. During jury selection, Yerrid tries to weed out those with bias by engaging potential jurors in dialogue. “What you’re really trying to do is unpick the jury – trying to take out the bad jurors,” Yerrid said. Although carefully designed questions can help ferret out biased jurors, Yerrid said he ultimately has to rely on his own instincts to determine who is “telling the truth.”
Plaintiffs’ attorneys: C. Steve Yerrid of The Yerrid Law Firm in Tampa, Fla.; Richard A. Gilbert and David D. Dickey of de la Parte & Gilbert in Tampa, Fla.
Defense attorneys: Jeffrey M. Goodis of Thompson, Goodis, Thompson, Groseclove & Richardson in St. Petersburg, Fla.; Brian D. Stokes of The Unger Law Group in Orlando, Fla.
The case: Navarro v. Carrollwood Emergency Physicians; Oct. 3, 2006; Circuit Court, Hillsborough County, Fla.; Circuit Judge Gregory Holder.
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