Juries are regularly asked to evaluate injuries and compensate plaintiffs. People may like to speculate what an injury would be worth to them but, like all things in life, financial sums are relative. Juror “A” may believe an injury is worth $50,000 in damages where Juror “B” believes that same injury is worth $500,000. It’s the court’s job to find a fair middle ground that compensates the plaintiff while not excessively punishing the defendant.
Jury awards sometimes make headlines when they are so high that the sheer number of zeros gives us pause. Last week the Superior Court of Pennsylvania affirmed a jury award of $443,418.09 in the case of Renna v. Schadt. This was a medical misdiagnosis case where the plaintiff argued that the defendant doctor’s error delayed the detection of and treatment for her breast cancer. The defendant appealed on a few grounds including what he believed was an excessive jury award.
Quick facts: Plaintiff was a 46-year-old special education teacher under the care of defendant physician. Plaintiff alleged that in May 2004 the defendant deviated from the standard of care when he performed a fine-needle aspiration biopsy instead of a computed tomography (“CT”) guided core biopsy on two lesions in her right breast. Plaintiff argued that the CT biopsy was a more advanced diagnostic technique and that had the defendant performed that biopsy, she would not have suffered an eleven-month delay in being diagnosed with breast cancer. Plaintiff underwent a bilateral mastectomy that was followed by eight rounds of chemotherapy and sixty-five radiation treatments to the right chest wall. She believed that this treatment was more aggressive and extensive than would have been necessary had she been diagnosed earlier. Additionally, the late diagnosis coupled with the bilateral mastectomy reduced the likelihood of a successful reconstructive surgery.
During trial, plaintiff’s expert pathologist testified both to the mistakes in the physician’s technique in performing the fine needle biopsy and to the serious results of the 11-month delay. The pathologist said that the delay resulted in significant tumor growth that spread to the local lymph nodes. At the time of diagnosis, the cancer was stage IIIA. The expert pathologist testified that had it been diagnosed 11 months earlier, it would have been stage I or II. The pathologist also testified that a CT biopsy would have absolutely located the cancer in 2004. The plaintiff’s expert oncologist testified that the negligent delay in diagnosis resulted in a bilateral mastectomy and lowered the plaintiff’s survival odds.
The jury found for the plaintiff and awarded $400,000, consisting of $150,000 for past non-economic loss and $250,000 in future non-economic loss. The defendant filed a motion for post-trial relief seeking judgment notwithstanding the verdict or a new trial or remittitur. The trial court denied the motion, added delay damages stipulated to be $43,418.09 and upheld a $443,418.09 verdict.
Like I said earlier, the dollar amount of jury awards is always relative but this $443,418.09 verdict does not seem so high as to shock the conscience. In fact, I could argue it is less than it should be. Would you take $1 million for this to happen to you? The answer: of course you wouldn’t. That does not mean a jury should award that much but it means that a jury ought to be allowed to make the call.
Defendant argued two grounds merited an appeal: first, the excessive verdict and second, the trial court’s incorrect interpretation of the Medical Care Availability and Reduction of Error Act (“MCARE”). This second ground focuses on the trial court allowing a pathologist and oncologist to give expert testimony regarding the standard of care for a surgeon.
The first issue was an easy one, not just because of my logic but of the burden you have to meet on appeal. The Superior Court found that because the award was not grossly exorbitant nor was it the result of mistake or prejudice, it would withstand review. In addition to believing that the dollar amount was reasonable, the court noted that the diagnostic delay resulted in chest wall radiation and decreased the likelihood of successful breast reconstruction. These last two factors were additional reasons the Superior Court let the award stand. Defendant’s chance of willing this one was one in a million.
As to the second issue, the trial court’s interpretation of the MCARE Act and the court allowing plaintiff’s expert witness testimony, the appellate court found that the plaintiff’s experts were competent and qualified to render expert medical testimony even though they were not surgeons. Each expert was a licensed and trained physician and was sufficiently familiar with the standard of care owed by the defendant. The appellate court found that the doctors were qualified under the MCARE Act and did not disturb the trial court’s ruling.
This appeal was dead on arrival. I realize defense lawyers have to take their best shot. But they had nothing here.