$5.8 million verdict reduced to $3.6 million in medical malpractice wrongful death case
Georgia is one of the states that has adopted a hard cap ($350,000 here) on noneconomic damages in medical malpractice lawsuits. Noneconomic damages include pain, suffering, loss of enjoyment of life, etc.
However, a catastrophic medical malpractice case with substantial economic loss may still result in a large recovery. The death of a high income individual due to medical malpractice is still of substantial value in court, while the wrongful death of a homemaker or retiree may be treated in court as if the person’s life had no value. That is because the cost of prosecuting is malpractice case is no high ($50,000 to $100,000 or more) that it is not economically feasible to pursue a case where the damages are capped at $350,000.
A recent Maryland case, which like Georgia has a cap on noneconomic damages, illustrates how a medical malpractice case may still hold substantial value even after tort reform.
In that case, a 47 year old man visited a dermatologist for a checkup in 1998. The doctor found a mole on his lower back and wrote a letter to the man’s primary care physician recommending it be removed. But it was not removed.
It was noted again in September 2004 when the patient returned to have boils on his upper back examined. He saw a new, part-time doctor in the same dermatology office, who suggested that two cysts and an atypical mole on the upper back be removed, but that the mole on the lower back be monitored, although it had doubled in size since 1998. The second doctor in the dermatology office was unaware of the size increase because the first dermatologist had purged his old records, as is allowed under state law for records more than five years old.
The patient returned to the dermatology office in August 2006 when his wife noticed the mole on his lower back had changed color. It was removed, but shortly afterward it was found the cancer had traveled to dozens of lymph nodes in his ‘s groin and lower abdomen. The cancer traveled to Semsker’s brain and he died in October 2007.
At trial, the lawyer for the patient’s family called as an expert witness a melanoma researcher, who testified the patient would have had a 95 percent chance of a complete cure if the mole had been removed in 2004, but the delay allowed the cancer to travel into the bloodstream and become incurable.
The first dermatologist’s insurance will pay the lawsuit, allowing his practice to continue.
The jury returned a wrongful death verdict for $5.8 million, but it was reduced to $3.6 million due to a Maryland cap on non-economic damages in medical malpractice cases similar to the current Georgia malpractice law.
Ken Shigley is a Georgia trial lawyer focused on cases of catastrophic personal injury and wrongful death. He has represented surviving family members in numerous wrongful death cases, as well as numerous survivors of brain and spinal cord injuries. Mr. Shigley has been rated as a "Super Lawyer" (Atlanta Magazine), one of the "Legal Elite" (Georgia Trend Magazine), and a Certified Civil Trial Advocate (National Board of Trial Advocacy,). He served a decade on the faculty of the Emory University Law School Trial Techniques Program. Mr. Shigley is currently Secretary of the 40,000 member State Bar of Georgia, and "of counsel" with the law firm of Chambers, Aholt & Rickard, which has an extensive practice in hospital and nursing home liability.