This actually happened, but it was several years ago so I’m sure it’s been settled long since.
I was chosen to be in the jury pool for a malpractice case. Only the plaintiff’s attorney spoke to the group of jurors I was in; however, through his statements and questions, I felt like we had a pretty clear picture of the case he was planning to present. Here are the facts:
An African-American woman in her late-50s was diagnosed with breast cancer based on a biopsy. A mastectomy was quickly performed and she lost all of one breast. It later turned out that a laboratory error had been made and she did not, in fact, have breast cancer. She is suing the hospital and wants, according to her lawyer’s direct statement, several million dollars.
Couple of additional details:
The victim appears in court wearing the worst-fitting prosthesis imaginable under a sheer white blouse. She has several very pleasant and very pissed family members with her.
Her main lawyer is wearing a “Save the Children” necktie that he keeps flipping over so that the “Save the Children” label is clearly visible to the jury.
The hospital where the procedures were performed is a small religious institution.
The hospital’s band of lawyers are totally slick and polished; they look like the cast of “L.A. Law”.
Question is - if the judge asked you if you would be ready to award “several million dollars” in this case, what would you say?
The somewhat low-rent appearance and behaviour of the plantiff and her attorneys is irrelevant. Id’ tell the judge I felt the hospital should be liable for full and satisfactory reconstructive surgery, refund all medical bills relating to the original surgery, and maybe cough up a few bucks (no more than one million).
Plus I’d tell them I was prejudiced against all races, and get dismissed so I could get on with my life.
I’d say whatever the truth is. Only you can answer the question of whether or not you could award several million dollars. I could, but that’s me. Just tell the truth.
“Tell the truth”? What does that mean? Who is it directed to?
I would want to know the fallibility of the tests. There is probably a certain probability of a false positive. What is the standard procedure for the test? IE if there is a positive, then what is the next step? Re-test? Start cutting?
Several million for a breast? For a 50 something year old woman? I would think that’s a little much. Actually a lot much. The question should not be…“how much money is needed to “compensate” the victim”. Because that would tend toward infinite verdicts.
Sympathy for the victims is nice, but in some cases, even when doctors are not at fault they lose cases due to sympathetic juries. This causes defensive medicine, and skyrocketing insurance costs. Some emergency areas of hospitals have had to shut down because the insurance costs were too high.
If health care is so expensive no one can afford it (but wait, it’s a “right” I forgot), I don’t think society as a whole benefits.
Can you clarify this statement for me? How does the woman’s age factor in to this? Are we saying that she had 50 years of good use out of the breast, so it is less of a tragedy then in a nubile young woman had the same part of her body removed unnecessarily? Or is it a strictly pragmatic stance (as it the breast’s primary function is to feed babies and as the woman is probably past her reproductive age it is less of a tragedy)?
Although, to answer the OP; I think that I don’t fully understand the question. If the Judge is asking me if I am ready to award the dough based on what I know at that moment, I would say that I don’t have enough information to answer the question, as I have not been presented with the evidence.
On the other hand, if the question is “do you think that several million dollars is an appropriate compensation for a human being that had a part of their body surgically removed by mistake?”, I would say that indeed I would award the money.
It used to be that people were awarded money based on economic damages. For example a 60 year old who was negligently killed would get less money than a 20 year old. Why? B/c the 60 year old only had a few good years of work left in him. So this woman basically would have already had a lifetime of use out of her breasts, so she would be due less compensation in that framework of looking at it.
Sounds somewhat harse, I know. But I don’t like the idea of “what is someone due for this tragedy? How much would it take YOU to give up a breast/son/daughter whatever?” I think that’s the wrong question.
Suppose a child is born with birth defects or even dead. This happens and often it is not the fault of the doctor. It is noone’s fault. Tragically it happens. In court however, doctors can and are sued anyway. The jury feels sorry for the plaintifs (who wouldn’t) and awards them huge amounts of money based on the idea that “gee if someone gave me 10 million it still wouldn’t replace my child…so let’s give them 10 million minimum, maybe we better make that 100 million”. It’s the wrong question. Just because someone wouldn’t offer their son/daughter up for 100 million doesn’t mean a person who lost their child tragically is due that much. People are in a competition to see how compassionate they can be and award compensation so large that it bankrupts the system.
So what happens? Insurance rates for OB/GYN’s go up to the 300,000-400,000 per doctor per year rate. OB/GYN’s are forced out of practice. Women get less good care b/c there are less doctors.
There was a case in Arkansas or Miss. where a man went to the emergency room and said he had been hit in the head. He hadn’t lost consciousness though (that is important apparently). The doctor did some simple tests but sent him home. Later he burst a blood vessel where he had hit his head and died. So they sued. It turns out that the doctor had followed standard procedure. If everyone who went in with a hangnail or bump on the head had a $1,000 MRI (which may not have caught the problem anyway) what do you think would happen to our medical costs and insurance rates in the country?
Well, the guy’s family won some huge verdict. Great news, right? Some evil insurance co. is on the hook. Well…yes they were and they raised rates so much in that and surrounding counties that the hospital went out of business. Now when people are maimed on the roadways in that county they have to travel an extra 30 minutes or so to the next county. And the poor lawyers won’t have anyone to sue, because there is no constitutional obligation to open a hospital and be raped by trial lawyers.
Back to the original post, I’d want to know what the standard of care is. There are such things as false positives and accidents. If they were negligent.
What would I award? I don’t know. 100K at the most for pain/suffering.
They (both the plaintiff’s lawyer and the judge) were trying to ensure that we would be willing to rule in favor of everything the plaintiff was asking for, based on the visual impression I gave above and the facts I stated (I think I recall everything that was said). It wasn’t posed as “what’s this worth” but rather “would you be willing to give her a ‘substantial verdict totalling several million dollars’”. Nothing was stated about the standard of care or the fallibility of the tests.
I don’t know if the woman’s age/race/bad prosthesis/kindly but pissed off relatives is or should be a factor. I just gave the details as I recall them - because this isn’t an abstract “what if”, it’s a real-life incident.
I’ve wondered about my response ever since, so I was curious how Dopers would have reacted.
Well, I tried to give a framework for how I would have looked at it.
I would need to have been there. But off the top of my head, no, I wouldn’t give millions of dollars for something like that.
How about you? What did you do, and what was the award? What facts came out in the case? What did the hospital have to say about it? “Sorry, we screwed up?”? What was there defense? What did they offer?
I’d say “How much would you sell one of your breasts for?” But if it was a guy judge, I’d say how much would your wife sell…well, you get my point. They made the mistake, yes, they should pay. Since this is something unreversable, I wouldn’t have a problem. As for the worst-fitting prosthesis, the fact that one is the best fit doesn’t negate the fact that most of us don’t have to make choices like that.
My first gut reaction, honestly, was that there are millions of women walking around who are struggling with breast cancer, who do have to wear prosthesis, who are undergoing radiation and chemotherapy, who face the real threat of death - and who have no one to sue. No recourse. I thought if she was fortunate enough to have “dodged the bullet” by not having the illness after all, then she ought to be grateful.
And my next big reaction was - why didn’t her doctors treat her well enough so that the situation could be resolved outside of court? Why did it have to come to lawyers? I wondered if her doctors had treated her with respect, had apologized for their error, had tried to make things right, offered her some kind of compensation. I was willing to bet they’d just ignored the misery they’d caused. The hospital’s lawyers were creepy, and I felt sad that she had to deal with those kinds of people after having endured the physical ordeal.
But I couldn’t see demanding “several million” dollars from a small hospital (it wasn’t one of the big-name institutions we’re all familiar with), so I had to honestly answer “no”, and I was excused from jury duty. Given how much I disliked her lawyer I wouldn’t have been an impartial juror anyway.
I’ve always wondered how the case was resolved. I thought that she was entitled to a full apology with accountability, to free reconstructive surgery, full forgiveness of her original hospital bill, and to about a million dollars for pain and suffering.
One thing that caught me off guard about my own reaction - I really assumed it would be less of a vanity blow for an older woman to lose a breast. It so happened I was teaching an art class at a senior center then, and I discussed the case with my students, who assured me my response was ageist and inappropriate. They would most certainly have deeply resented the loss of a breast, no matter their how old they were.