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New Opinion: Wrongful Death Malpractice Verdict Reversed

The first thing they do in a communist Nazi country is destroy the jury system. Why do they want to destroy the jury system? Because you represent the line between tyranny and democracy, right and wrong. You have the power. . . You have more power today than the President of the United States. . . . But the question is, will you have courage today? Do you have the God given courage. . . .

This is a line from a closing statement in a wrongful death medical malpractice case in Mississippi. Setting aside that the Nazis were not communists but bitter enemies of communism, this is just unbelievably over-the-top, right? This line, Plaintiff’s closing statement, a jury instruction stating that an element of the wrongful death claim was the “loss of the value of life,” led the Mississippi Supreme Court to reverse a $1 million jury verdict in a wrongful death case.reversed wrongful death verdict

This case is a classic “you could have saved her if you had taken the case more seriously in the ER” case. It happens every day in this country. Here, the woman presented at the emergency room with a lot of problems: confusion, decreased appetite, tremors, renal disease, respiratory failure, and pneumonia. They did not take her to intensive care but gave her antibiotics, and the woman went into cardiopulmonary arrest. The opinion does not go into the merits of the case, but you can be sure the doctor’s attorney contested both negligence and causation.

A jury found the doctor negligent and awarded $1 million. The doctor appealed, arguing that the plaintiff’s malpractice attorney made improper comments to the jury, including that the damages should include, “the value of a human life.” Plaintiff’s counsel was echoing the jury instruction that the jury may consider the “value of life” of the deceased when awarding damages.

The complete thing was a mess. It was not a great instruction and maybe a little misleading. Defense counsel also did not properly object to the instruction, which would have given the court a chance to cure the problem or allow the plaintiff’s lawyer to withdraw the request.

The Mississippi high court agreed, finding reversible error because the trial judge should not have instructed the jury – nor should the plaintiff’s counsel have argued to them – that they could consider the ‘value of life’ of the deceased in awarding damages.

Mississippi’s wrongful death law, like Maryland’s, allows damages for the loss of the companionship and society of the decedent. Is “value of the life” another way of saying that? Okay, maybe not exactly, but I think it is close enough to be harmless, particularly when defense counsel did not object to it. It is hard not to see the elected Mississippi Supreme Court here as the man looking for a nail. In its recent history, personal injury plaintiffs had a zero percent success rate before the court.

It really makes me appreciate the Maryland Court of Appeals. I don’t always agree with their finding but if you read their opinions – and maybe more importantly, watch oral arguments, you get the clear sense the court is trying its best to make the right call and you don’t feel any outside agendas other than the invariable interloper of the judge’s ideology. These judges in Mississippi need and accept campaign contributions. Does it influence their opinions? I don’t see how it couldn’t. Human beings, even honest ones, try to take care of their own when they are doing everything that they do. It has been this way for all of humanity’s reign.

You can find the opinion in Vaney v. Lance here.

Wrongful Death Medical Malpractice Verdicts and Settlements

The following are some examples of wrongful death medical malpractice verdicts and settlements:

  • 2019, Virginia: $1,400,000 Settlement. A 28-year-old man died at home from multinodular thyroid goiter complications. In the months leading to his death, he complained of heavy mucus and shortness of breath in his nose and face. He underwent a CT scan that revealed an enlarged thyroid that caused the narrowing of his trachea. The man also underwent an arterial blood gas test (ABG) that showed abnormal results. Despite this, the consulting otolaryngologist decided to discharge him. This contrasted with the other treating physicians, who wanted to admit him if he had abnormal ABG test results.  The estate sued the health care facility, claiming they were liable under respondeat superior for the otolaryngologist’s failure to properly and timely monitor the deceased. This case settled for $1,400,000 which was to be paid for by the facility’s insurer.
  • 2019, California: $800,000 Settlement. A 29-year-old woman died of breast cancer, which was alleged to result from a delayed diagnosis. She initially sought treatment for a lump in her left breast the year before. However, the treating facility allegedly failed to conduct a biopsy. With no treatment, the breast cancer progressed from Stage I to Stage IIIC. Her estate alleged that an earlier diagnosis would have prevented the cancer from rapidly advancing as it did. The parties agreed to an $800,000 settlement.
  • 2019, Alabama: $9,000,000 Verdict. A 20-year-old college student died from a pulmonary emboli after she visited Urgent Care twice within three days of her death. On her first visit, she complained of a sore throat, a cough, a headache, and shortness of breath. The doctor diagnosed her with bronchitis and pneumonia and prescribed her antibiotics. She returned to Urgent Care two days later, complaining of sharp chest pain and shortness of breath. Another treating doctor saw her, who diagnosed her with dyspnea and leukocytosis. He prescribed her an inhaler. The woman died the next day. Her estate alleged that both doctors failed to evaluate her for blood clots and failed to provide further testing and evaluation based on her shortness of breath. The jury awarded a $9,000,000 verdict.
  • 2019, Massachusetts: $1,100,000 Settlement. A 64-year-old man arrived at the emergency department, complaining of shortness of breath. Four weeks prior, he underwent surgery for a broken ankle. An ER nurse and the ER physician’s assistant examined him and noted his shortness of breath. Within three hours of arriving at the emergency room, he underwent a CT scan. Its results revealed a pulmonary embolism and a heart strain. Despite the results, he was not immediately treated. He eventually was administered heparin. However, instead of being admitted to the ICU, he was admitted to the general floor where he waited over four hours before being assigned a room. Once being placed, he went into cardiac arrest and died 50 minutes later. His estate sued the hospital for failing to timely treat the man. The hospital denied liability, claiming that the deceased showed no signs of a pulmonary embolism. Before trial, the case settled for $1,100,000.
  • 2019, Pennsylvania: $700,000 Settlement. A 77-year-old man died of a heart attack while under the care of a health care facility. One year before the heart attack, he showed hemiplegia and facial drooping to his right side while undergoing physical therapy for from third-degree burns to his right arm. His estate alleged that the facility failed to test and treat for a stroke. Two settlements were reached in this case. One of them amounted to $500,000, while the other amounted to $200,000.

Remember, the biggest value driver in wrongful death cases is whether your state caps noneconomic damages.

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