I saw this story all over the news wires and blogs this morning and thought I’d pass it on. Last week, a Florida jury awarded $116.7 in compensatory damages in a case where a stroke victim was allegedly misdiagnosed and sent home, leading to permanent brain damage. This week, well, the reporter in this story in the Tampa Tribune put it best in a summary of plaintiff lawyer Steve Yerrid’s appeal to the jury in the punitive damages phase:
At a hearing Tuesday, he begged them to send a message to doctors and insurance companies everywhere: "Don’t ever put profits over patients’ safety."
"Now’s not the time for mercy," Yerrid said. "Now’s not the time, as I said, for compassion. Now is the time for the sword."
The jury complied.
The three men and three women took about a half hour to award Allan Navarro $100.1 million in punitive damages.
I’ll leave it to others to debate whether this is craziness or the proudest moment of American civilization. Here are some posts from Ted Frank at Overlawyered, Greedy Trial Lawyer, Kevin, M.D., Peter Lattman at the Wall Street Journal Law Blog and TortsProf Blog that will help you make up your mind, if you care to. The more interesting question, for me, is how this threat by the plaintiff lawyer holds up:
Family attorney Steve Yerrid said he’ll pursue damages from the insurance company, which is now claiming in a lawsuit that it has no duty to defend Austin because the doctor breached his contract.
"We’re coming after them next," vowed Yerrid, who was part of a team of lawyers that brought Florida’s landmark suit against tobacco companies and has won numerous other multimillion dollar verdicts.
"For all those people who believe in tort reform, they better find a new day job," Yerrid said. "We’re here to stay."
(This quote was from Kevin, M.D.’s site, but his link was bad and I haven’t been able to find the story with this quote in it). What the plaintiff’s lawyer is talking about is apparently more than the policy limits of $1 million each for the doctor, Austin, and the physicians’ group of which he was part. I took a look at Florida’s bad faith insurance statute when I wrote this post, but I’m certainly not an expert on bad faith law in Florida.
However, before an insurer can have any liability, whether bad faith or not, generally it has to breach some duty to the insured. Depending on the jurisdiction, in a circumstance like this, bad faith liability might arise from either a failure to settle within policy limits or breach of the duty to defend. From the various accounts, it’s not clear to me whether the insurer defended the case at any point or whether there was a reasonable chance to settle within policy limits. In the Birmingham News story (the first link in this post), the insurer sounds very confident it has a defense against liability and bad faith. If I was the person who gave the insurer a coverage opinion to that effect, right about now I’d be taking a hard look at my conclusions, just to ease my mind and make sure I was right.