The Maryland Daily Record reports that a Frederick County jury awarded nearly $4 million to a boy in a birth injury malpractice lawsuit. The gist of the lawsuit was that the child’s cerebral palsy was caused by his doctors’ failure to properly monitor his heartbeat before delivery. The fetal heart monitor is the baby’s way of communicating with us. If the doctors and nurses do not listen, tragedy often follows.
The jury’s verdict was against an ER doctor and an obstetrician. Three nurses, a third doctor – another ER doctor – and Frederick Memorial Hospital were not found liable.
The nature of the claims for at least two of the doctors (I’m not sure of the claims against the third) that were allegedly a substantial contributing factor in the child’s cerebral palsy was different. The emergency room doctor ostensibly shared his concern about the mother at 5:45 a.m. but did not see or evaluate her. The obstetrician allegedly was told about the concerns with the patient at 7:00 a.m. but did not see her or order that she be sent to labor and delivery.
Yet all three doctors were represented by the same attorney. As I have written before, Defendants’ lawyers are moths to the flame of presenting a united front against Plaintiffs. But I would think the obstetrician would have liked to say, “No one did anything wrong but, sure, I relied in part on the fact that I assumed the ER doctor would have looked at the problem if there were immediate concerns.”
Now, that exact defense might be inapplicable to the facts of this malpractice case but some derivative version of that defense is almost invariably applicable when a medical malpractice lawsuit makes allegations against different doctors.
Again, I do not know all the relevant facts and there could be other facts present in this cerebral palsy case that would make one lawyer handling the claims of all three doctors an understandable strategy. This is obviously Monday morning quarterbacking after a bad medical malpractice verdict – which is easy to do. We consider the attorney who represented the doctors one of the best medical malpractice lawyers in Maryland.
One Lawyer for All Not Always the Best Idea
But even if there are facts I don’t know that would change my analysis in this case, the principle I am talking about still holds true: defendants are almost invariably better off having their own lawyer to at least give them the easy option of jumping ship on the “we are all in this together” boat.
I would not be surprised if the medical malpractice carrier preferred one lawyer handling the claim and led the doctors down that path. It might make sense for doctors to split counsel, but from the malpractice insurer standpoint, if one doctor gets hit with a verdict, they all get hit.
So the malpractice carrier arguably has a selfish motive of pushing the best option to get a defense verdict as opposed to pursuing the best option for each individual doctor. If this were true – and, again, I have no idea – does that mean that the insurance company consciously tried to do what was not in the doctors’ interest? Not necessarily. But where reasonable minds can differ, we all have a tendency to think that the “best decision” for someone else coincides with what is best for us.
Pain and Suffering Award Nonsensical
It is noteworthy that the Frederick County jury only awarded $300,000 for pain and suffering. I can’t imagine that $300,000 for pain and suffering is reasonable when the jury awarded over $3.5 million in past and future medical bills. But my guess is that Paul Bekman – another good malpractice lawyer – specifically asked for a lower pain and suffering award because he wanted the jury to focus on the hard numbers that are not subject to Maryland’s cap on damages in medical malpractice cases.