Lost Compensation

$21.5M RI Wrongful Death Verdict

On Feb 9, 2007, a Providence, RI, jury returned a $21.5M wrongful death verdict for the plaintiff in Thomas Noel O’Sullivan et al v. Newport Emergency Physicians Inc. and Charles L. Stengel M.D.  With interest, the award is expected to come to $28M.

The following report in Providence Business News breaks down the award as follows:

• $9M to the husband (Thomas O'Sullivan), for loss of his wife
• $4M to each of the 3 children, for loss of their mother
• $500M to the estate of (Julia) Mary O'Sullivan, for pain and suffering

According to a report from a local news station, William F. White, Attorney for the Defense, in responding to the award was quoted:

"(This verdict shows a) systemic problem with asking a jury to decide non-economic, emotionally charged issues without any meaningful guidelines."

So the defense is taking issue with the non-economic damages component.  Understood.  (I would also like to point out that the sum of those damages above is $21.5M, so I do not know where the actual economic damages award are.)

Implicit in the defense attorney's comment is a call for tort reform, presumably to place a cap on non-economic damages.  I have seen similar sentiment before, enacted into legislation right here in Texas.  The trouble with this "solution" is that it puts a barrier in front of the injured to seek remedy at court.  Ostensibly, that's what the tort reformers want: to weed out the non-meritorious cases from coming to trial.  The problem it generates is that some of the truly injured now have a disincentive to seek remedy at law.  And second, such a system seems to provide a disincentive to medical care givers to provide their best possible care.  More troubling, is such a barrier to judicial remedy something that we as a society want to encourage?

The argument you will hear time and again from the Tort Reform ilk goes something like, "It costs too much in malpractice premiums to be a doctor."  And then the variant goes something like, "I cannot afford to practice medicine!"  Or, "I'm moving someplace else where the medmal insurance premiums are more affordable."

Regarding the first, I've not seen too many doctors in line at the soup kitchen.
Regarding the second, yes, tort reform has created this problem.  However, the transaction costs of moving and setting up a new practice, finding new patients, developing a reputation in a new region, etc. serves as an impediment to "doctor flight."

We all need doctors, on this I am sure we all agree.  My personal belief is that doctors should not be unjustly targeted.  That said, shouldn't we trust the legal process to filter the wheat from the chaffe?  I would expect non-meritorious cases to be flushed out, and the cases with true injury to make it through to the end game.  Even so, my understanding is that the judges have the discretion to mark down these jury judgments, and often do so.  So, perhaps a long-run effect of this whole process would be for juries to gross-up damages awards to compensate for the coming judicial mark-down.  Game theory, and whatnot.

Regardless, I believe in accountability.  If you are held accountable, then you will work with care.  As everyone should, doctor and non-doctor alike.

Wrongful Death of a Child

As I prepare to deliver a CLE course on Economic Damages in Personal Injury and Wrongful Death, I have been thinking of wrongful death of children.  Valuing economic damages for a child who does not have a history of income is not an impossible hurdle to overcome.

An approach is to conduct scenario analysis for different levels of educational attainment, and then look at available salary data cross-referenced to the demographic information to estimate the future earnings for the scenarios.  Examples include:

1. high school graduate
2. college graduate
3. advanced college degree

With this information, the jury is then able to weigh the evidence presented at trial as to what the most likely educational attainment for the child would have been but for his or her wrongful death.  I emphasize this point because the economic expert is there to assist the trier of fact in understanding specialized or technical knowledge beyond the knowledge of the average juror.  (Rule 702)

While pondering this point, I ran across this post on the blog, a Day on Torts.  It discusses a Defendant's motion to exclude Plaintiff's expert economist testimony, and lists the PDF of the Plaintiff's Response to this motion.  John Day reports that the judge ultimately found for the Plaintiff on this issue, so that the Plaintiff economist was allowed to testify.  The Ptf. economic expert took the aforementioned approach, and the Defendant sought to attack, among other reasons, because the economist did not "have an independent basis for verifying [deceased child's] likely education level."

The rationale described in the Response really resonated with me.  It is a perfect example for discussion of such cases.  The expert economist is there to aid the trier of fact in understanding the computation of present value.  The economist has access to specialized data, and specialized knowledge in the application of such data.  The attorneys will present evidence to help the jurors decide what the most likely level of education will be for the child, and then, using the information provided by the economist, can make an informed assessment of the value of economic damages in the case.

Thanks to John Day at Day on Torts for such an illustrative and applicable example.

Water Intoxication Death

The family of Jennifer Strange has filed a wrongful death suit against a Sacremento, CA, radio station after the 28-year old mother of 3 died after consuming 2 gallons of water in a radio contest.

The contest, devised by the morning show, pitted contestants against each other, with the person consuming the most water without going to the bathroom being the winner of a Nintento Wii Game System.  During the contest, Mrs. Strange had complained of headaches.  The Houston Chronicle reports that  during the contest, a listener had called in to warn everyone that consuming so much water could be harmful or even fatal.  The DJ's responded (on air) that they knew and that the contestants had signed waivers.

Later in the day, Mrs. Strange was found dead in her home.

This is sad, very sad.  Being a former engineer myself, I remember being amazed that my company actually had an MSDS (Material Safety Data Sheet) for H20.  I mean, the ones for things like sulfuric or hydrochloric acid are self-evident.  But water?  I simply trusted that the MSDS was accurate -- drink too much water, and you die.  Here is an MSDS for water which I was able to find online at Cornell.

Does a waiver release the radio station from liability?