This week’s Massachusetts Lawyers’ Weekly newspaper features a story about Massachusetts’ biggest medical malpractice verdict of 2009: a $15 million dollar verdict awarded to the parents of a three year old boy who died from complications from a heart surgery.
As sad as this tragedy is, someone might see it as just another large medical malpractice verdict and not a very remarkable story. After all, the case did not establish any new precedent in the area of medical malpractice or garner any media attention outside of trade periodicals.
The Lawyers’ Weekly story, however, shows that the case is noteworthy in at least two respects.
First, the parents of the boy apparently could not find a medical malpractice lawyer in Boston or Massachusetts. Four different law practices in Boston rejected the case. Some of the Massachusetts medical malpractice attorneys that the parents contacted begged off the case because the doctors involved had been expert witnesses in their other cases. Other medical malpractice attorneys in Massachusetts turned down the case because, in the words of Lawyers’ Weekly, it was “seen as a loser” by the medical malpractice community. Fortunately, the father of the child had a cousin in California who was a medical malpractice lawyer and that California lawyer, James Fox, agreed to take the case.
Another noteworthy part of this case is how some diligence and unconventional tactics turned a “loser” of a case into the biggest Massachusetts medical malpractice verdict of 2009. Fox took forty-four depositions in the case, about four times the average in Massachusetts medical malpractice cases.
This sweat-of-the-brow approach did not uncover any smoking guns about what the doctors did in the operating room but it did turn up evidence that certain Intensive Care Unit notes had been falsified and that certain other documents had vanished.
The discovery that documents had been tampered with enabled Fox to, in his words, try the case as an “obstruction of justice”-type case instead of a “battle of the experts” medical malpractice case, as is common in Massachusetts.
The tale of this case should be an unsettling one for Massachusetts medical malpractice lawyers. Massachusetts medical malpractice lawyers need to examine their own practices and see whether they’ve become too complacent in the tactics they use to try cases and whether they’ve become too ensnared in conflicts of interests with the doctors they use as expert witnesses.
Med-mal win suggests lawyers rethink strategy: Jury awards $15M in case seen as loser, masslawyersweekly.com, January 18, 2010
If you or someone you know has been injured as a result of medical malpractice and requires the services of a Boston medical malpractice attorney, call the Law Office of Alan H. Crede at (617)973-6434 for a free in-person consultation.