THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, April 29, 1995 TAG: 9504290333
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
LENGTH: Long : 134 lines
On paper, it sounded like a lot of money.
In March, a jury said a local man should get $1 million because a doctor's negligence ruined his penis. After the verdict, he was ecstatic. ``I wasn't even touching the ground when I was walking,'' the man recalled.
Then reality came knocking.
Four weeks have passed, and the man - a contract laborer whose name is being withheld to protect his privacy - has not seen a penny. He may get nothing for two years because the doctor's insurance company is threatening to appeal.
The company has offered to settle the case for $700,000, but the man refuses. Such a settlement would leave him $270,000, after medical and legal expenses - and he may need that money for future medical care. He has no health insurance.
Meanwhile, the man's boss is reluctant to let him work. ``We have a lot of other guys around here who need money more than you,'' the boss told him after the verdict.
Million-dollar payouts in medical malpractice cases are extremely rare in Virginia. There have been only nine statewide in the past 10 years, according to the state Bureau of Insurance.
But the Virginia Beach case shows something that many trial lawyers already know: While winning a big jury verdict is hard, collecting is sometimes harder.
``I figured, two weeks at the most we'd have a check - you know, because of the nature of my injury,'' the 45-year-old man said recently. ``I've been ruined for the rest of my life. I can't walk into the bathroom. I have no sexual function.''
Said his wife: ``We want just to be finished. We want the insurance company just to give us a fair amount. We want to leave this area and build another life.''
No one on the other side of the case could be reached for comment. The physician, Dr. David M. Lustig of Virginia Beach; his attorney, John A. Heilig; and the insurance adjuster did not return phone calls.
But Thomas J. Harlan Jr., the injured man's lawyer, said he is not surprised by the insurance company's actions. He has seen it before.
In the past half-year, Harlan has won three verdicts of $1 million each in medical malpractice cases. One was paid quickly; two remain unpaid.
The first case involved a Richmond woman who suffered a cut nerve in her foot. The insurance company paid just eight days after the verdict. ``That's the fastest I've ever received a big check,'' Harlan said.
The second case involved a Virginia Beach woman who suffered permanent facial paralysis after plastic surgery. The insurance company appealed the verdict, but the state Supreme Court refused to take it.
That means the woman will get $147.50 a day in interest from the day of the verdict. So far, 190 days have passed, for about $28,000 in interest.
``This puts a little bit of pressure on the insurance company (to pay quickly), but not much,'' Harlan said.
The insurance company must pay 9 percent annual interest, Harlan said, but the company earns more than that by keeping the money invested.
In the penis case, for example, Harlan said the insurance adjuster told him, ``We're not worried about it, Tom. We're earning 12 percent on that money.''
For the injured man, however, debts are piling up.
The patient, a diabetic who suffered occasional impotence, visited Lustig in June 1993 and asked about shots to cure his impotence. Instead, Lustig advised him to get an implant. The lawsuit said this was unnecessary.
Lustig performed the surgery, but the patient developed a massive infection.
The doctor treated the infection with antibiotics and pain-killers for 3 1/2 weeks.
Finally, the patient went to the hospital with a high fever and the severe infection. The implant was removed, but by then the man had lost all use of his penis. He can only urinate into a cup and cannot get an erection. He has undergone eight more surgeries since then.
As a result, the man has missed a year of work, at about $60,000 a year.
At first, when the man tried to return to work, the boss wouldn't give him jobs. The boss had read about the verdict and recognized him, even though the patient was not identified by name in the newspaper.
``I had to say, `Look, when they came out with the verdict, they didn't give me a check,' '' the patient recalled. He eventually got work.
Meanwhile, the couple has been borrowing money to stay afloat. They sold their second car, a Ford Escort. They reached their maximums on Visa and MasterCards at $10,000 each. They took out four personal bank loans totaling $45,000. They borrowed $5,000 from the wife's parents. They stopped eating out, taking weekend trips, buying Christmas presents.
``I used to have a savings account,'' the man said, ``but that's gone.''
Finally, the man sued Lustig for $1 million, the maximum allowed in Virginia for medical malpractice.
Earlier this year, a review panel of two doctors and two lawyers ruled against the doctor. Then, after an eight-day trial, a jury reached the same conclusion, on March 30.
Upon hearing the verdict, the man thought, ``We won! It was over with, it was finished. Best thing that ever happened to me.''
But the haggling continues.
What is the case worth? The man and his wife still wonder. ``How do you put a monetary value on what we've been through?'' the wife asked.
For starters, the man owes $150,000 in medical and trial expenses. That does not include his lawyer's share of the settlement, 40 percent.
Before trial, the insurance company offered $250,000 to settle the case. The man rejected the offer.
During the trial, the insurance company raised its offer to $680,000. That was tempting, the man recalled, but he rejected that, too, taking his chances with the jury.
Now, after the jury's $1 million verdict, the insurance company has raised its offer just slightly - to $700,00. The alternative is, perhaps, two more years of appeals. Even then, there is no guarantee the man will keep his victory.
``The plaintiff is always looking, potentially, at being reversed and having to retry the case,'' Harlan said.
Last week, the injured man rejected the new settlement offer. An appeal now seems nearly certain.
But will the man accept a higher offer? What about $800,000? What about $900,00? ``Where do we draw the line? What do we call decent?'' the man said.
``I wonder,'' he concluded, ``if I'm doing the right thing.'' MEMO: MILLION DOLLAR PAYOUTS\ Medical malpractice claims paid statewide:
1985 0
1986 1
1987 0
1988 0
1989 2
1990 0
1991 4
1992 1
1993 0
1994 1
10-YEAR TOTAL 9
Source: Virginia Bureau of Insurance
KEYWORDS: MEDICAL MALPRACTICE MEDICAL LIABILITY INSURANCE SETTLEMENT
APPEAL by CNB