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