On February 13 2009 a Dallas County jury awarded $17.5 million to David Fitzgerald the alleged victim of Medical Malpractice only to have the verdict reduced by $10 million. So what gives?
In 2003 a tort reform measure was put into effect in The State of Texas which set limits to the total amount that a medical malpractice victim can receive. To summarize the law stipulates that a victim could receive no more than $250000 in pain and suffering or other similar damages. This measure came to pass in the name of the general good of the public by way of protecting doctors from high dollar law suits. Supporters of the tort reform measure contended that if no such measure was implemented the number of medical doctors in Texas would rapidly decline as many doctors could not afford the costs associated with such civil actions. Certainly that seems like a reasonable concept on paper.
The problem with this tort reform measure is that in reality many of the victims of medical malpractice are effectively robbed of the rights that they would have if they suffered similar injuries in another type of accident– such as a car accident for example.
Of the $17.5 million of Mr. Fitzgeralds verdict $10 million was for pain and suffering (and or disfigurement/ mental anguish/ loss of consortium/ other such damages) of which he will only receive $250000. The remaining $7.5 million of the verdict is made up of more tangible damages such as past and future medical expenses and lost wages. The tort reform laws do enable a victim to receive compensation for these more tangible damages with no limit thus accounting for the remaining $7.5 million.
The initial reaction to the outcome of this case may be Well he still got $7.5 million and thats not bad. In reality thats not quite as good as it seems. Since that portion is likely made of medical expenses and lost wages only most of the money is spoken for.
For illustrative purposes lets assume that Mr. Fitzgerald made $40000 per year in his former position as an apartment maintenance technician. If he lived for another 40 years that would total $1.6 million dollars of future earnings. Bare in mind that this is money that he would have earned anyway. Being awarded that money does not make him any better off that he would have been. Its best to think of this as an advance on the money that he normally would have made. That would imply $5.9 million of his verdict goes to past and future medical expenses. The thing you must consider is that of the $5.9 million for medical expenses virtually every dime will be spent on medical care just to help him deal with the life long difficulties he now faces.
On top of that you have to consider the attorney fees. The industry standard rate that his attorneys likely charged him is in the neighborhood of 33%-40%. When you factor all of these pieces of the equation it becomes very obvious that in spite of the fact that a jury felt he pain and suffering commanded such a verdict and in spite of the fact that his attorneys worked hard to get him as much as they could the law simply kept Mr. Fitzgerald from getting a fair deal.
Think about it. Would you suffer the loss of both of your arms and legs for $250000 in compensation for pain and suffering?
Disclaimer: Just for the record and in case you missed it Mr. Fitzgerald is not a client of my firm and never has been. This is merely a case that caught my attention. Furthermore the numbers used are for illustrative purposes and are based off of loose figures mentioned in the Dallas Morning News. The interpretation of those numbers is entirely speculative but grounded in reality based on the numerous similar cases I have worked in my 20 years of practicing the exact same type of law.
