South Carolina Personal Injury Law Blog

Illinois Judge Strikes Medical Malpractice Caps

From ChicagoBusiness.com:

A Cook County judge on Tuesday struck down a two-year-old Illinois law that caps some jury awards to victims of medical malpractice.

Circuit Court Judge Diane J. Larsen ruled that limiting payments for “non-economic damages” such as pain and suffering is unconstitutional. The law caps those awards in malpractice suits at $500,000 per case for doctors and $1 million per case for hospitals. There is no cap on economic damages, such as loss of pay.
In her 10-page opinion, Judge Larsen ruled that the law violates the Illinois Constitution’s “separation of powers” clause — essentially finding that lawmakers interfered with the right of juries to determine fair damages.

The ruling means the case likely will go directly to the Illinois Supreme Court as early as next summer. The court has twice before struck down laws that limit payments to malpractice victims: once in the 1970s and again in 1997.

The decision deals a blow to doctors and the hospital industry, which waged a bitter lobbying campaign in 2005 to get the law passed. Facing resistance from the state’s trial bar, they argued that frivolous malpractice lawsuits and runaway jury awards were causing sky-high insurance rates and driving some doctors out of the state.

In a statement Tuesday, the Illinois Hospital Assn. expressed disappointment in the ruling but said it looked forward to a Supreme Court decision. “The law is critically needed to preserve and enhance access to health care for Illinoisans and remains the most appropriate, meaningful and comprehensive solution to address the medical liability crisis,” the statement reads.

Illinois’ trial bar sued last year to have the caps struck down as part of a malpractice lawsuit against Gottlieb Memorial Hospital in Melrose Park in which a baby allegedly suffered brain damage during a botched delivery. That case has not gone to trial.

Source:  "Judge Strikes Down Illinois Med Mal Caps" by Mike Colias , published at ChicagoBusiness.com.

Vioxx Plaintiff Accepts Settlement to Avoid Retrial

Facing a possible retrial, a South Carolina man chose to accept a $1.6 million from Merck & Co. after a trial judge overturned the original $51 million verdict.  The plaintiff alleged that Vioxx was to blame for a heart attack he suffered in 2002.  The judge found the original award to be excessive in light of the plaintiff’s successful recovery and a general lack of economic damages resulting from the heart attack. 

Source:  "Vioxx Plaintiff Takes $1.6M Rather Than Retry on Damages" published in the New Orleans Times-Picayune.

Side Effect of Acne Treatment Prompts Jury to Award Damages

Swiss drugmaker Roche Holding AG, the maker of the acne treatment Accutane, will be forced to pay an Alabama man $2.5 million, following a jury verdict this week. In the lawsuit, the plaintiff claimed that the drug’s maker failed to sufficiently warn consumers about the drug’s risk of causing inflammatory bowel disorder. Accutane has received more prominent attention in the past for side effects such as birth defects and increased suicidal behavior. 

Source:  "Jury Awards $2.5 mln in Roche Accutane Trial" by Jon Hurdle, published by Reuters.

Man Exonerated After Wrongful Conviction Awarded $5 Million

A Connecticut man was awarded $5 million from the state after serving 18 years for wrongful conviction of rape. Members of the state legislature voted unanimously Wednesday to give James Tillman $5 million, following his 2006 exoneration and release. The $5 million settlement was reached in an agreement to halt possible lawsuits against the police and state by Tillman.  DNA tests, pushed for by The Innocence Project, a New York-based legal group, helped overturn the conviction. 

Source:  "Wrongly Jailed U.S. Man Gets $5 Million" by Av Harris, published by Reuters.

Ford Avoids Major Punitive Damages in SUV Rollover Case

This past week, a jury in Middlesex County, New Jersey returned a sizeable verdict for a woman who was left paralyzed after her Ford Explorer rolled over.  The suit claimed that the 2000 accident was caused by a defective throttle design in the 1997 Ford Explorer that made its accelerator stick in the closed position and by the design of the vehicle's suspension, brakes, and geometry gave it a heightened propensity to tip over.

The woman's right hand was nearly severed in the crash, but doctors were able to reattach it in surgery. She also suffered torn nerves in her brachial plexus, leaving her with only 10 percent use of her right arm, and  rendering her unable to work as a cosmetics salesperson.

The jury's verdict included actual/compensatory damages of $8.5 million for pain and suffering, $1.5 million for medical expenses, and $1 million for lost wages.       However, the jury reduced the award by 28 percent, the proportion by which it found Zakrocki responsible for the crash, and the jury deducted another $2 million because the woman was not wearing a seatbelt.

Most notably in this case, the jury only awarded $42,500 in punitive damages after a lawyer for Ford was allowed to tell jurors (over the woman's lawyers' objections) of the company's dire financial straits and mass layoffs.  Ford's attorney referred to the automaker's net loss of $12.7 billion in 2006 and its plan announced in January to eliminate 25,000 to 30,000 jobs in North America and close 14 plants by 2012.

Source:  "Ford Motor Co. Ducks Major Punitive Damages in SUV Rollover Suit" by Charles Toutant of the New Jersey Law Journal, published at Law.com.

State House Awards Man Damages for Wrongful Imprisonment

A 46-year-old man who was exonerated of rape charges by DNA evidence after being imprisoned for 25 years. The GA House agreed to pay the man $1.2 million for lost income, personal injury and other damages. Before being convicted, the rape victim identified him from a lineup despite her earlier description that the rapist was much shorter.

Source:  "Georgia: $1.2. Million for Wrongful Imprisonment"  published in The New York Times.

Jury Finds for Family in "Wrongful Birth" Case

The family of an unborn child whose life-threatening genetic defect went undiagnosed was awarded $28 million in damages.  Health care professionals reported that tests showed no signs of defects in the fetus, but upon birth all signs of a life-threatening genetic defect were present.  The jury found the child's high-risk-birth specialist to be 50 percent negligent, while the remaining liability was placed on a medical testing lab and its director. 

Source:  "Jurors Award $28M in 'Wrongful Birth' Suit" by John Pertrick, published at NorthJersey.com.

Factors Affecting Damages

Nature of Injury

It stands to reason that the most important factor which will affect the amount of damages that you can recover is the nature of the injury sustained. The more serious an injury is, the higher the value of the claim. If you are suffer from a soft tissue injury, such as with whiplash or neck strain, you will not recover as much as someone who is injured more seriously, involving ligament tears, bone fractures, and nerve damage.

Injuries such as whiplash and back strains are known as soft tissue injuries because they involve muscle. Although the condition can be painful, it's usually not permanent. Moreover, there is limited ability to detect this condition through medical examination, whereas bone and ligament damage is easily seen on a standard x-ray. serious injuries that can be detected with a medical examination typically receive much higher damage awards. If you have medical documentation to prove your damages, you will usually receive more compensation for your injuries.

In addition, the amount of treatment required, as well as the degree of permanency of your injuries can significantly affect the amount you will recover. Conditions which require surgery and extensive rehabilitation will present more compelling evidence of damages than injuries which heal without the need for medical intervention.

Degree of Defendant's Liability

If the defendant is 100% at fault for causing the accident, the amount of the award will fully represent the value of the damages that are presented. There will no reduction in the award based on the defendant not being entirely at fault. For example, if you are a passenger sleeping in a car hit by a drunk driver, you are not at fault for your injury, while the defendant is completely at fault. The only issue at trial will normally be how much your damages are worth.

However, if you in any way are accused of sharing responsibility for the accident with the defendant, the amount of your settlement or damage award may decrease. Where appropriate, your attorney should vigorously contest any claim that you are partially at fault for causing an accident. Using our experience and the services of expert accident reconstructionists and investigators, we will focus on proving the fault of the defendant so that we can obtain the maximum possible settlement or verdict for you.

Comparative Negligence

If a plaintiff is found partially at fault for an accident, he or she has not lost his or her case altogether. In South Carolina, comparative negligence is used to calculate the degree of the plaintiff's negligence and reduce the plaintiff's claim reward accordingly. S.C. Code § 15-1-300. The award of damages to the plaintiff will be reduced in direct proportion to the plaintiff's percentage of fault, as long as the plaintiff's fault is less than the defendant's.

For example, suppose a jury awards you $100,000 in damages after you fell down the stairs, however, it finds you 30 percent at fault for your injuries because you did not hold on to the hand rail. After applying comparative negligence, you would be entitled to $70,000 in damages ($100,000 minus 30 percent).

Joint and Several Liability

As a general rule, two or more defendants who are responsible for causing an injury are held jointly and severally liable. This means that in cases where multiple defendants are responsible for the plaintiff's injury, each defendant is held individually liable for the full amount of the percentage of the damages that are not caused by the plaintiff himself.

For example, if defendants A and B are each responsible for 40% of plaintiff's damages, and plaintiff is 20% responsible, A and B are each still liable for the full 80% total apportioned to the defendants. This does not mean that the plaintiff can recover 80% from each of them, it merely means that the plaintiff can recover up to 80% total between the two defendants, whether it all comes from A, B, or a combination of the two.  A and B do not have what is known as a right to contribution, which means that if the plaintiff recovers more than A's "pro rata" share of the damages, then A cannot sue B for partial reimbursement.

Joint Tortfeasors

The theory of joint and several liability is that when separate and independent acts of negligence of several persons combine to produce a single injury, the actors are considered joint tortfeasors. The plaintiff can sue these joint tortfeasors in the same action, and each individual defendant will be held responsible for the entire amount of damages.

The purpose of this rule is to transfer the risk that one defendant will lack the resources to pay the damages from the plaintiff to the other defendants. If one defendant pays the entire judgment, that defendant can sue the other defendants to contribute the amount of the damages that the jury found them responsible for. S.C. Code 15-38-20.

The plaintiff can recover the full amount of damages from any defendant that is 50 percent or more at fault.  So if the plaintiff is 25 percent at fault, and defendant A is 65 percent at fault and defendant B is 10 percent at fault, the plaintiff can recover the full amount of damages (75 percent in this example) from defendant A, even though Defendant A was found to be 65 percent at fault. Defendant B can only be held responsible for 10 percent of the damages.

For exmple, suppose the jury awards you $100,000 in damages because you were injured in a car accident. If the jury finds the driver of the other car 60 percent at fault and the municipality 40 percent at fault, you would be able to recover the full $100,000 from the other driver. However, you can only recover $40,000 from the municipality. If the other driver pays you $100,000 it can then sue the municipality for $40,000. This is called contribution.

Respondeat Superior

If an employee commits a tort during the "scope of his employment," his employer will be liable (jointly with the employer), which is called the rule of respondeat superior. Respondeat superior is applied to cases involving "employees," in which the employee is subject to the close control of the person who has hired him.

This is distinguished from an independent contractor situation, where the hiring person does not control the "physical details" of the work but rather just the general manner that the work is carried in.  Independent contractors generally do not fall under respondeat superior liability unless the employer retains the right to control the manner in which the contractor performs the work.

Alternative Liability / Acting in Concert Liability

As a special circumstance of joint and divisable liability, sometimes the actions of two or more defendants combine in such a way that it is nearly impossible for the plaintiff to identify which defendant's action caused the plaintiff's injury. An example of this would be if two hunters in the woods fired towards an animal, but one of the bullets struck the animal while the other bullet hit a bystander. Without knowing which bullet was fired by which hunter, the plaintiff would be unable to establish the liability of either hunter. To remedy this, some states, recognize "alternative liability" or "concert of action," where the actions of multiple negligent defendants result in an injury and the plaintiff can't prove whose act caused the injury.

Market Share Liability

In cases involving many defendants who produce the same or identical-looking products, courts in some states have held defendants liable under "market share" liability. This arises when several manufacturers produce a product that plaintiff's can't separately identify as coming from a particular manufacturer.  Note however that market share liability is generally not imposed for products liability.

Plaintiff's and Defendant’s Credibility

Whether or not a jury or insurance company is likely to find you and your claim believable and of significant worth will strongly impact your claim. Can you accurately describe the events of the accident? Can you describe your injuries in detail, and in a convincing manner? Are you intelligent and well spoken? Would you make a good witness on your own behalf?

The term used to describe these intangible factors is "jury appeal." Remember that the jury members will judge both you and the defendant, and that their opinion of you will weigh into their decision on whether to award you damages, and if so, how much. It is important that all of the claims that you make are supported by the evidence, or you may quickly lose credibility with the jury.

The credibility and perception of the defendant will also affect the amount of money you receive. If the defendant in a car accident case is a 20-year-old driving a hot rod, jurors aren't likely to view the defendant favorably. This can also help a plaintiff in cases where the defendant refuses to admit fault for the accident. Exposing the "holes" in defendant’s version of the accident will damage the defendant’s credibility, resulting in higher damage awards in most cases.

Plaintiff's Age

Age plays a role in determining the value of a plaintiff's claim, particularly where permanency of injury is alleged. If you are a 20-year-old woman who lost her leg in an accident, then a jury will award a higher amount of damages than if you are a 80-year-old woman with the same injury. The basis for this is that the younger woman has more future pain and suffering, loss of enjoyment of life, loss of income, and mental anguish ahead of her than does the older woman.

Witness Testimony

The credibility of witnesses also plays a role in affecting the amount of any recovery. This relates not only to witnesses to the accident itself, where proof of fault can be affected by their testimony, but to witnesses who are called to testify as to your damages as well. It is helpful to have credible witnesses who can clearly describe your condition before the accident to the jury, so as to assist them in understanding the change in your condition post-accident.

In addition, expert witnesses often play a critical role in the outcome of any personal injury trial. In cases where there are "dueling experts", the background and professional experience of your expert is critical to establishing his or her influence over the jury.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Amount of Damages

There is no simple, universal formula that lets us put a price tag on injury, pain and suffering. Rather, our attorneys rely on our experience in handling injury cases of all kinds to enable us to form an expectation as to what your case might be worth. This experience is crucial in order to ensure that your case will not be settled out of court for less than it is worth in court.

There aren't any hard and fast rules, nor are there any magical mathematical equations, to derive an exact number for your damages. To determine the worth of your injuries, an attorney in our firm will calculate your lost income, medical expenses, and property damage. 

In addition, we will meet with you to discuss in detail the nature of your pain and suffering, mental anguish or emotional distress, loss of enjoyment of life, loss of consortium, and lost opportunities. When appropriate, we will seek the help of medical specialists and employment specialists to assist in proving the nature and extent of your damages.

In addition we will use our expertise to assess a number of other relevant factors, such as the degree of the defendant's liability, the nature of the injury, your credibility to jurors, the defendant's credibility, your age, and whether there are any witnesses who will support your claims along with the credibility of those witnesses.

The formulas serve merely as guidelines. Every case is different, and, as a result, every outcome is different. Though we can never guarantee that a certain set of facts will result in a certain amount of damages, we can guarantee that we will vigorously pursue every avenue of recovery available to you in order to maximize the amount of compensation that you will receive.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.

Types of Compensatory Damages

1.  Loss of Income:

You are entitled to compensation if your injuries prevent you from working, causing you to lose income. For example, if you are a landscaper who can't work for a week because you sprained an ankle in an accident, you are entitled to compensation for that week of lost wages. You are also entitled to lost wages if you miss work because of treatment.

If the injury is serious enough and you can no longer perform the duties of your job or occupation, you can sue for "loss of future earnings capacity." For example, if a construction worker who builds custom homes loses a hand in an accident, he or she can sue for loss of future wages.  In some cases, expert vocational and financial witnesses can assist in proving the amount of economic loss that will be suffered in the future.

If the accident results in death, a family member can sue on behalf of the deceased person (decedent) for any lost income that the victim would have earned based on the work-life expectancy of the decedent. The future earnings are "discounted" to present value by reducing the total award. For example, suppose the decedent, who was 55 years old, made $50,000 a year and his or her work life expectancy is another 10 years. A lump-sum payout of $500,000 would be more valuable today than $50,000 over 10 years because you can invest that money. Therefore, the $500,000 would be discounted. Several very complicated formulas are used for discounting.

2.  Cost of Medical Expenses / Treatment:

A substantial medical bill is compelling evidence of the seriousness of an injury. Cost of medical care is one of the most important elements involved in calculating the potential value of a claim. Obviously, the higher your medical bills, the more damages you are entitled to. In addition, the cost of future medical expenses is an important consideration as well. If you are facing years of treatment that could last a lifetime, then the amount of damages you will be awarded will normally be substantially increased. Proving the amount of future medical care is an area that requires substantial personal injury experience and the use of appropriate experts.

3.  Property Damage:

You are entitled to compensation for any damage to your property in addition to your physical injuries. Car damage typically accounts for most property damage awards. In addition to the loss of value or repair costs associated with your vehicle, the contents of your car may also be damaged in an accident, and you can be reimbursed for damage to this property as well.

Property damage valuation is an art form that may require the services of a professional or expert appraiser. If the property has been completely destroyed so that it is of no further use and has no salvage value, the measure of damages can be set at the fair market value of the property immediately before its loss. Property damage is calculated based upon the value of the property prior to the accident, not replacement value.

If the property can be repaired, the amount of damages can be set at the amount it costs to repair the property plus the loss of its use by the owner. If the cost to repair the property exceeds the fair market value of the property before loss, the damages can be limited to the fair market value. In addition to the cost to repair or replace plus loss of use, interest and loss of profits may also be added as elements of damages. Finally, while your vehicle is being repaired you may be entitled to recover the costs of renting a car or other substitute transportation.

4.  Pain and Suffering:

The most personal (and often the most difficult to prove) element of all damages is the pain and suffering that an injured accident victim has to endure. Though pain can be felt only by you, it can be evidenced by reference to the use of painkillers, the frequency and length of your treatment, the types of treatment, and the recovery time.  Witnesses who were familiar with your lifestyle before the accident can be helpful in proving the changes to your lifestyle after the accident. It is important to us to make sure that each and every aspect of your lifestyle that has been compromised is made known to the jury and proven through witness testimony and other evidence. Your loss of enjoyment of life is a compelling element of your claim that requires careful attention and experienced counsel.

Obviously, a person who undergoes several surgeries followed by excruciating physical therapy for a shattered knee will likely receive higher damages for pain and suffering than an accident victim who does not need surgery or physical therapy. Similarly, an injury that takes one year to heal will be worth more in damages than one that takes only two months. In cases where there is a permanent injury, your attorney may employ an expert to testify on your behalf as to the limitations imposed by the permanent condition and the appropriate value of compensation that may be appropriate.  A permanent disability will normally increase the damages awarded to you significantly.

5.  Mental Anguish / Emotional Distress:

Though mental anguish and emotional distress are often confused with pain and suffering, they are not the same. It can be quite normal for an accident victim to experience some sort of emotional distress in addition to physical pain. Fear, anxiety, shock, grief, mental suffering, shame and embarrassment are some of the symptoms of mental anguish that can normally result from a traumatic accident.

For example, suppose a worker sees a co-worker crushed by a machine she is operating. The terror she experiences during the terrible accident is considered mental anguish. States have put limits on who can sue for emotional distress and under what circumstances. The barriers are to prevent a possible proliferation of personal injury lawsuits based solely on mental anguish. In some states, if you are not the injured victim suing for emotional distress you have to pass what is known as the "zone of danger" test.

In South Carolina, a plaintiff may recover for a physical or bodily injury that results from mental and emotional trauma in the absence of physical impact. Because South Carolina allows recovery for injuries sustained as a consequence of shock, fright, and emotional upset, the worker plaintiff may be able to recover for her alleged injuries that arose from the sudden fright she felt when the machine she was operating crushed her co-worker.  By way of contrast, someone who only heard about the accident could not recover for emotional trauma. 

Another limit some states have imposed on emotional distress lawsuits is the "physical manifestation rule," used in cases where the plaintiff is not injured. For example, you are suing for emotional distress, among other things, in a libel suit. You'd have to show that the emotional distress resulted in "physical manifestations"--e.g., loss of weight depression, or ulcers.

6.  Loss of Consortium:

A serious accident can leave a victim in serious pain and permanently disabled. Though those types of damages are separately compensable, personal injury laws also permit injured victims or the relatives of a decedent to sue for "loss of consortium," or the loss of love and companionship as a result of an accident. A severe and disabling injury can affect a personal relationship in a variety of ways, as where many of the romantic and recreational activities that two spouses once enjoyed together may no longer be possible.

Loss of consortium would also apply if an accident left a husband or wife unable to perform chores that the spouse relied upon. Though this type of recovery usually is less than the amount of recovery awarded for pain and suffering, loss of consortium can be a major element of damages in extraordinary circumstances, as where an accident causes a victim to become paraplegic or otherwise totally disabled.

7.  Lost Opportunity:

In addition to lost wages and future lost wages, you can seek compensation for any lost business opportunity resulting from an accident. It is important to be careful when presenting this type of damages to a jury. For example, not every child who suffered a facial scar in an accident "would have been a movie star."  Only where there is ample proof of a lost opportunity should it be presented, otherwise speculative claims may be rejected by a jury and hurt your credibility for recovery on other, more concrete claims.

At Stevens - MacPhail, P.A., we strive to obtain fair and just compensation for our clients' injuries.  Using our experience and the extensive resources available to us, we focus on achieving the best possible recovery for our clients.  In all matters involving personal injury it is essential that measures be taken promptly to preserve evidence, investigate the accident in question, and to file a lawsuit prior to the deadline imposed by the statute of limitations.

If you or a loved one has been injured, you can call Stevens - MacPhail, P.A. at (800) 897-8856 or (864) 598-9172 or e-mail us to schedule a meeting.  The initial consultation is free of charge, and if we agree to accept your case, we work on a contingent fee basis, which means we get paid for our services only if there is a monetary award or recovery of funds.  Don’t delay! You may have a valid claim and be entitled to compensation for your injuries, but a lawsuit must be filed before the statute of limitations expires.