A $2-million medical malpractice verdict won by Berman & Simmons shows how seasoned, skilled trial lawyers with the financial resources to develop a case thoroughly, and stick with it through an appeal, can transform a seemingly ordinary workplace injury into a highly valuable case.
Holding an Institution Accountable for Mistakes it Refused to Acknowledge
In Robbie M. Nason v. Eastern Maine Medical Center and Timothy Pruchnic, M.D., my colleague, attorney Susan Faunce, and I represented a client who had broken his wrist while at work. His surgeon failed to properly insert a fixation screw, which resulted in soft-tissue injury, the need for multiple follow-up surgeries by a different surgeon, and ongoing pain and limitation. Though our client has so far managed to avoid extensive economic loss, we recognized that his injuries had a profound impact on his quality of life.
As this case progressed through the Prelitigation Screening Panel and Superior Court discovery, we recognized that it could be presented as much more than a case about a simple medical error and the need to compensate our client. We focused on how the jury needed to hold a negligent doctor and hospital accountable for mistakes they refused to acknowledge. At trial, both the hospital and the surgeon claimed they had done nothing wrong. We highlighted their denials in order to demonstrate that the defendants failed to accept responsibility for their mistakes and that the jury needed to hold them accountable.
The defense never showed serious interest in settling this case. Believing that the jury understood the profound impact the negligent care had on our client’s life and the implications of defendants’ refusal to acknowledge their mistakes and take responsibility, we decided to ask the jury to award a verdict of $1 million. We considered this an aggressive but appropriate request. The jury returned with a verdict of $2 million.
Winning the Case at Trial
We Understood the Larger Implications of the Case
The underlying facts were straightforward: Robbie, an experienced craftsman, broke his wrist while working as a canoe maker at Old Town Canoe. This is a common workplace injury, and workers’ compensation paid for his initial treatment, including surgery, and covered most of his lost wages. Robbie’s out-of-pocket losses were therefore small.
This case arose out of a surgical error. When the surgeon installed a screw at the fracture site, he left the head of the screw sticking out above the surface of the bone, which then damaged nearby cartilage. Another orthopedic surgeon discovered the error when Robbie experienced pain after the first surgery. Eventually, Robbie underwent three additional surgeries and he still suffers discomfort.
Because Robbie fractured his dominant hand, his job responsibilities had to be altered. The damage to his cartilage also made it difficult for him to drive his four-wheeler, and to hunt and fish. Robbie was an avid outdoorsman, and these had been some of his favorite pastimes.
Even though the effects of Robbie’s injuries are permanent, they would not normally have resulted in such a large award. He has kept his job and remains an active person. I believe that the jury returned a $2-million verdict because they were convinced of the larger implications of the case.
We Exploited the Defendant’s Inconsistencies and Shifting Excuses
The defendant surgeon testified twice during discovery that the screw head in such procedures must be recessed below the surface of the bone, so as not to rub against cartilage. He even testified that he switched to a shorter screw during the procedure when the first one would not go into the bone fully.
The surgeon shifted his story, however, after his expert witness testified. The defense expert said she could not tell from medical imaging whether the original screw head had been submerged or not but that, in any event, it was not necessary for it to be fully recessed.
The defendant surgeon then altered his position and said it was not necessary for the screw head to be recessed, completely contradicting his earlier testimony.
We Highlighted the Defendant’s Lack of Relevant Experience
Through discovery, we showed that the surgeon defendant had little training in this kind of procedure, and may have performed it only once without supervision. We also introduced evidence that, at the time, there were several other surgeons at the hospital with more relevant training and experience.
We Factored in a Jury’s Tendency to Defer
Having the facts on your side doesn’t ensure victory, or a large award. We understood that juries are often reluctant to second-guess doctors.
In medical malpractice cases, defendants typically argue that medicine involves judgment calls, sometimes at the operating table. Defense counsel commonly argue that jurors should defer to well-intentioned, highly-trained doctors. The defense sometimes portrays plaintiffs and their lawyers as unfairly targeting “innocent” doctors.
To address that tendency, we argued that the original error in the operating room was compounded by the hospital’s refusal to acknowledge the mistake and the shifting narrative about the need to recess the screw in such procedures.
Winning the Appeal
On appeal, the defendants moved for a new trial, or in the alternative, remittitur, on the ground that the jury verdict was excessive.
The defendants argued that the trial court erred by giving a jury instruction admitting only redacted portions of radiology reports and instructing the jury to disregard mentions of workers’ compensation.
Two years later, the Maine Supreme Judicial Court affirmed the trial court in full, and found that the evidence in the record supported the determination of a rational relationship between that evidence and the jury’s damage award.
We Believed in Our Client and Never Gave Up
In this case, the defendants refused to take responsibility. Instead of looking inward and trying to make things better for Robbie, they claimed they hadn’t done anything wrong. Their conduct during the litigation added insult to injury. We recognized that jurors might be influenced by the defendants’ ongoing denial and empowered them to act as the conscience of the community.
To win this case, we drew on our combined experience in medical malpractice cases. We believed in our client and the value of his case and never gave up. We were undeterred by the defenses that have been effective in other cases, and fought through discovery, trial, and appeal until justice was served.
As a result, Robbie won the compensation he deserved for a medical error that altered his life in many ways.