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Work stoppages by doctors in New Jersey and West Virginia and a threatened Pennsylvania walkout have forced medical malpractice tort reform to the domestic-policy forefront. Claiming that a dozen states are gripped by malpractice insurance crises, American Medical Association President-elect Donald Palmisano said, “The AMA believes that the medical-liability system is broken and needs reform.” Caps on damages for pain and suffering, the most frequently �invoked type of reform, would have had little effect on some of 2002′s biggest verdicts, but one-third of the biggest malpractice verdicts were for pain and suffering. Thirteen malpractice awards were among The National Law Journal‘s Top 100 Verdicts. The biggest: a $94.8 million award in Brooklyn, N.Y., to Jonathan Perez, who, in 1993 suffered brain damage in utero after a medical team at Brooklyn’s St. John’s Episcopal Hospital allegedly delayed administering drugs to stave off his mother’s premature labor. It was the 25th largest award. Nine other med-mal cases in the Top 100 involved failures in neo-natal care. The bulk of the awards were to pay for a lifetime of care for children who suffered debilitating brain injuries before, during or after birth. Six of those verdicts were rendered by New York City juries, four of those in Brooklyn. New York juries had also dominated the 2001 med-mal list. Fourteen of that year’s top verdicts were in malpractice cases, five in New York City. The top med-mal verdict from 2001 was $114.8 million and came in Brooklyn. In 2002, the highest non-New York verdict was the $78.5 million returned by an Orange County, Fla., jury in a suit filed by a 44-year-old woman against the hospital that failed to diagnose her liver tumor. Henalori Shellow-McGee’s verdict was the fourth-biggest med-mal award and ranked 30th overall. Shellow-McGee v. Orlando Regional Health Care System, No. CI-000-4009 (Orange Co., Fla., Cir. Ct.). One lawyer, Dr. Bruce G. Fagel of Los Angeles, won two of the biggest awards: a $59.3 million verdict from a Contra Costa County, Calif., jury in Greenwell v. John Muir Medical Center, No. MSC 00 02889 (Contra Costa, Co., Calif., Super Ct.), and a $43.5 million verdict in Brown v. Community Hospital of San Bernardino, No. SCV-16881 (San Bernardino Co., Calif., Super. Ct.). Both involved neonatal brain injuries. A CALL FOR A CAP In 1975, California enacted the Medical Injury Compensation �Reform Act now widely cited by �reformers as a model for national legislation. Central to the statute are a $250,000 cap on pain-and-suffering awards and a sliding rate scale for attorney fees. Fagel, a former emergency-care surgeon, said the reforms, championed by President Bush, would have had no effect on his cases. He also said that the California statute hasn’t kept up with �inflation. “Two hundred and fifty thousand in 1975 is worth about $75,000 today,” he said. But Fagel credits the law with stabilizing California’s med-mal insurance market. James Wilkens, a partner in the Yonkers, N.Y., firm of Fitzgerald & Fitzgerald, was the winning lawyer in Perez v. St. John’s Episcopal Hospital, No. 26675/96 (Kings Co., N.Y., Sup. Ct.). He noted that two decades ago, New York enacted its own limited tort reform by assigning to the trial judge the duty of reducing a long-term economic damages award to present-day value. Two-thirds of the jury award to Perez, more than $64 million, was allocated toward his future care, medical expenses and rehabilitation. That figure has not yet been reduced to present-day value. The $31 million balance was allocated to pain and suffering. Setting aside the pain-and-�suffering damages, “there is nothing left for Jonathan,” Wilkens said. New Jersey Medical Society general counsel Robert J. Conroy countered that a med-mal injury “shouldn’t entitle you to any more than anybody injured by any other cause.”

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