August 21, 2001 -In Malpractice Cases, Numbers Favor Defendants But in Suits Against Nursing Homes, Plaintiffs Win More Jury Verdicts.

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Plaintiffs prevailed in a third of the medical malpractice cases that went to trial in Missouri last year. The median award totaled $400,000, according to Jury Verdict Research, a Horsham, Pa., firm that compiles jury verdict figures nationwide. Claims of negligent surgery and negligent diagnosis represented nearly half the cases.

In Kansas, by contrast, plaintiffs in medical malpractice cases that went to trial prevailed just 29 percent of the time. But the median award - $419,089 - was slightly higher than in Missouri. Negligent surgery and negligent diagnosis represented 46 percent of the cases.

The figures don't suggest any major developing trends in the always contentious medical malpractice arena, although lawyers said such cases appeared to be slightly on the rise.

"The statistics still favor defendants, but it does appear that jurors are looking more critically at cases, especially at nursing home liability," said plaintiffs' attorney Jim Frickleton of Bartimus Frickleton Robertson & Obetz.

In nursing-home cases, "plaintiffs are winning a majority of the time. You're seeing a lot more verdicts for a lot more money than you'd expect," Frickleton said.

That's because nursing home cases usually don't hold out the prospect of large damage awards, since the would-be victims are elderly, with little or no earning capacity, and their economic losses are limited, meaning jurors aren't as apt to award them significant damages.

What has changed, however, is the greater willingness of jurors to award punitive damages, lawyers say. For punitive damages to be awarded, jurors must find not just that the medical provider was negligent but that the provider was reckless or engaged in wanton or willful misconduct.

"It's almost unheard of for punitive damages to be awarded against a doctor, but in nursing home cases, you have evidence a lot of the time that the non-medical people running these businesses are making medical decisions," Frickleton said.

Still, punitive damages remained the exception rather than the norm. In Kansas, the standard of proof "is just about a rung below criminal behavior, an extraordinarily high hurdle," said Peter Obetz, also a lawyer with Bartimus Frickleton. "So it's rarely an issue in medical malpractice cases."

In order to keep a lid on medical malpractice awards, both Missouri and Kansas cap non-economic damages - intangibles such as pain and suffering, mental anguish and loss of enjoyment of life. Missouri's cap last year was $540,000 per defendant, a ceiling set annually by the state Division of Insurance based on the consumer price index. Kansas, on the other hand, caps non-economic damages in all personal injury cases - not just medical malpractice actions - at $250,000, with no annual adjustments for inflation.

One emerging way plaintiffs' lawyers in these states may seek to circumvent those caps - at least in wrongful-death cases brought by a decedent's survivors - is by claiming that each survivor is entitled to damages. Until now, the applicable law has viewed the survivors as having a single wrongful-death claim.

"But now the theory is that every plaintiff is entitled to damages up to the cap," said defense lawyer Tim Aylward of Horn Aylward & Bandy. "In Missouri, the (statutory) language has been on the books for 15 years, but there's never been an interpretation by the courts."

Another significant development in Missouri has to do with when plaintiffs can sue, as opposed to how much they can recover. A decision last month by the Missouri Supreme Court expanded the "continuing care" exception to the state's two-year statute of limitations for medical malpractice claims.

The court held that even though the two-year period had elapsed, a patient who alleged that a radiology practice failed to detect a tumor on his spine after three magnetic resonance imaging readings could sue the practice over the first reading.

Although the court said the patient could not individually sue the doctor who read the first MRI, the court reasoned that the radiologist group had a duty of continuing care to the patient, which stopped the statute of limitations from running.

"The necessity that gives rise to the relationship is the patient's ailment or condition," the court stated, noting that the relationship continues until the parties end it or until the physician's services are no longer needed.

If you or a loved one has been injured as a result of possible medical malpractice, call Law Offices of Kerner & Kerner, P.C. now at 212-964-1098 or CLICK HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of charge, and if we agree to accept your case, we will work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds. Don't delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

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