MEDICAL MALPRACTICE DamagesPosted by BS - 19/09/11 at 10:09 am
Seabury-Peterson v. Jhamb, 2011 ME 35, 15 A.3d 746, Jabar, J.
The Law Court affirmed a verdict of slightly more than $1,000,000 in a medical malpractice case involving failure to diagnose metastases of cancer. The Law Court held that it was within the trial court’s broad discretion to deny the defendant’s motion for a mistrial based on a so-called “golden rule” argument. The plaintiff’s attorney stated in closing that “no one would want to switch places right now more than Donna Peterson.” The court immediately gave a curative instruction and proper instructions on damages. The Law Court held that in these circumstances, the trial court’s response effectively cured any potential prejudice from the one isolated comment.
A mistrial is required only when the curative instruction could not dissipate the ill effects of the prejudicial statement and, in making that determination, the trial court may consider the nature of the comments, their frequency, their possible relevancy to the real issues before the jury, the manner in which the parties and the court treated the comments, the strength of the case (for example, whether it was a close case), and the verdict itself.
The jury awarded the plaintiff more than $100,000 in excess of the amount of her actual medical bills for medical expenses. The trial court ordered a remittitur on that element of damages to the amount of the bills, which the plaintiffs accepted.
On appeal, the Law Court affirmed, finding that the verdict was not based on an improper motive because the jury could have taken into account testimony involving massage therapy, chiropractic appointments, trips to the emergency room, and other activities that might have generated medical bills but for which no bills were in evidence. This could have led the trial court to reasonably determine that the jury mistakenly used an improper measure of damages rather than having been influenced by an improper motive in awarding in excess of the proven medical costs.