The first trial involving injured patients of Las Vegas Endoscopy Center began with Opening Statements this past Monday after a full week of Jury Selection. The plaintiff is represented by one of Las Vegas’ preeminent lawyers, Robert Eglet, who has amassed many multimillion dollar verdicts during his career. And to do what plaintiffs are doing in this case takes a Robert Eglet to pull off. Mr. Eglet has carefully and certainly orchestrated his evidence and witnesses and planned the destruction of the defendants’ evidence and witness. He has also made other subtle arrangements to upgrade his chances of winning big.
I make two points:
1. Malpractice Caps are wrong and Result in Going Around.
2. Leaking Settlements by other Defendants to the Jury May keep the Round Going.
This case, has been headline and news fodder for the past few years. Dr. Desai was paraded around the News Networks claiming he was not mentally competent to assist his counsel and otherwise villain-ized in the media. The Endoscopy Center was immortalized as a place of contaminating disease ridden practices. Nurses were subject to new regulations not allowing them to administer injections without a medical doctor present.
The past few years have created a public distrust and, I would say, outright hate of the Endoscopy Center, its physicians and Dr. Desai; Perhaps not for bad reason. I just point this out because it will only be useful for plaintiffs in this case. The more the jury dislikes one side the more apt they are to consider giving to the other side.
The interesting and potentially problematic issues are that the jury knows the “other parties” (Dr. Desai) settled. Given public knowledge that Nevada adopted Medical Malpractice limits of $350,000, the jury pretty much knows about how much the plaintiff got. Simple math, combined with sympathy (which plaintiff here deserves) may cause a jury to award the difference between what plaintiff got and what they should get against the only parties left in the lawsuit: the drug company that makes the vials of the drug that was reused.
The theory goes like this: since the drug company could have and actually did make smaller 10ml vials they should not have sold 50ml vials to the Endoscopy Center since it would tempt medical workers to reuse used vials and spread disease. This is all caused by the drug company’s loss of profits producing 10ml vials when it could force all users to buy more expensive 50ml vials. In fact that is exactly what the drug company did, thus boosting its financial reports. This enhanced financial picture allowed the drug company to sell itself at a higher price thus enriching the owners and directors of the company. Hence the catch phrase, profits over consumer safety.
And herein is my first rub with the Medical Malpractice Cap of $350,000. Creative lawyers are left to their creativity. You can only get so much for a client injured by medical malpractice. And since lawyers spend so much of their time and money pursuing recovery for those clients, it makes little sense to champion these causes when the client may get little or nothing even if she wins. Mr. Eglet has tried to recoup the difference between what his client got out of the malpractice cap against Dr. Desai and the Endoscopy Center by suing the nearest deep pocket.
"For full justice for what has happened to him, $10 million is the right number," Eglet said.
The theory? Well, that the company made vials that had too much medicine in them. This in turn “tempted medical workers to reuse vials among patients rather than throwing them away.” LVRJ, April 20, 2010.
Despite going against every medical principle known to the medical profession, intentionally contaminating patients, the temptation being too great for the medical workers is what the jurors will have to agree with to pay these injured plaintiff’s more than the small amount they got. But since their temptation was only worth $350,000 Mr. Eglet, one of the few attorneys capable to do so in the state and maybe the country, will make that argument. But the insurance capping made it this way.
And then of course the legislature can get campaign financing from anyone, including corporations. And corporations, according to the Supreme Court, derive the same rights as individuals.
In summary, the “going around” is the need to get around the malpractice caps.
My second point is; once the whole world (and the jury) found out that the “other defendants” settled out as reported on every local news network and paper, the jury will surmise, whether the drug company was intentionally manipulative or not, the only way to pay these poor people will be to give them compensation from the remaining defendants. Typically, this so-called “empty chair” is not explained to a jury: where a defendant settles out before trial and another defendant does not. And no party can argue it was the defendant that settled out’s fault. Then an offset applies, by the Judge, after the jury makes its award without consideration of the other settlement.
Here that empty chair is screaming “we already settled!” The fact that the jury hears that may give grounds to the losing party to appeal. And an appeal will take years. An appeal may result in another trial.
And so, the going round keeps going.
The statistics of whether you will have to step foot in a courtroom are fractional. Since more that 90% of all lawsuits settle before ever reaching the courthouse, you should ask the lawyer you are considering for representation about that. My answer is: I always prepare a case as if we are going to trial. That is the only way the other side will take anything we say seriously. That includes settlement discussions and any alternative dispute resolution that we may enter in to.
"The American Association for Justice announced today it is launching what it called the first phase of a nationwide ad campaign 'to educate lawmakers about the epidemic of preventable medical errors and how tort law changes won't lower costs or cover the uninsured,'" 
