Nicholas, born with the umbilical cord wrapped twice around his neck, not breathing or moving, had turned pale blue. The Apgar scale, used by doctors to evaluate a newborn baby’s general condition, was 2 (out of a possible 10) at one minute after birth, and 3 at five minutes. Intervention by members of the hospital’s Neonatal Intensive Care Unit (NICU) brought steady improvement to Nicholas’s vital signs. They stabilized his Apgar at 8 (normal). Mother and baby were routinely discharged from the hospital two days later without further incident.
After the plaintiffs completed their case, Citrin began his defense of Stern and LIJ. He dealt first with whether Stern had deviated from accepted medical practice in managing Caputo’s labor and delivery. Citrin called other OB/GYN physicans, who testified that, based on the fetal heart monitor strip, Stern made a medically acceptable decision to permit Caputo’s labor to proceed and her to give birth naturally.
Citrin later addressed an issue that I had asked about during jury selection. In court, witnesses and Nicholas’s medical records confirmed my conjecture that at no time in the child’s life before age five (his age at the time of the trial), had he ever been given any kind of diagnostic tests that might have revealed brain damage sustained at birth or later. Although this is neither illegal nor abusive, this simple fact made Caputo seem neglectful of her son’s interests.
Caputo testified that, when Nicholas was about two years old, she began to notice that he might be delayed in achieving normal developmental milestones in a few areas. She was working and carried adequate health insurance for herself and Nicholas, but she never had him tested—no CAT scans, MRIs, or EEGs had ever been taken. The law firm representing the Caputos sent Nicholas for an EEG in preparation for this trial and ordered competency tests to show the extent of Nicholas’s developmental deficits. He now attends a special education program at a New York City public school.
Whatever these tests showed, there were no earlier baseline data to compare them against. For me, that was the deciding point, and Citrin had framed it very clearly for the jury. Once our deliberations began, we quickly agreed overall that the plaintiffs hadn’t convinced us, especially regarding negligence. We awarded no monetary compensation.
We worried about the impact that our verdict might have on Nicholas, who came into court briefly during the trial. He was a physically healthy child with long, curly hair and a pleasant manner. He waved and smiled at the jury members. As a father of three, I could not help but feel compassion for Nicholas and his mother. All of the jurors felt the same way: we were concerned about what the future might hold for them.
However, we were told after the trialby the presiding judge, New York State Supreme Court Justice Roger N. Rosengarten, that to reach a mutually acceptable financial settlement, Citrin had offered Langell what is known as a “high/low agreement.” In a high/low agreement, the low figure sets a minimum amount that a plaintiff is assured of receiving. The high figure is the maximum amount the plaintiff stands to gain, regardless of what a jury decides. In effect, this agreement puts the financial outcome of a civil trial beyond the jury’s control. Why did Citrin believe it was necessary to offer the high/low?
“If we lost and had to pay compensation, all or most of Dr. Stern’s personal assets, including her house, could have been taken away from her. LIJ was not subject to the high/low, so she would have been the only one held financially liable. I wanted to protect Dr. Stern’s personal assets.”
It’s easy to understand why Langell accepted the offer: “We might have gone home empty-handed. I could not let that happen if there was an alternative,” Langell said after the close of the trial. Caputo, who had originally sought a million dollars, accepted $600,000 under the agreement. Neither she nor Langell agreed to be interviewed for this article despite repeated requests.
“Caputowas the type of case where the facts could have supported either side,” Justice Rosengarten says. A verdict had the potential for plaintiffs to go home with nothing or for defendants to pay a much larger amount in compensation than they expected. Mr. Citrin’s offer of the high-low served the interests of both sides. I’m glad that they were able to reach an agreement.”
Medical malpractice remains a politically sensitive issue. There are some indications that the Barack Obama presidency might create a very different arena for deciding medical malpractice cases. Obama coauthored an article in 2006 with Hillary Clinton for theNew England Journal of Medicine, titled “Making Patient Safety the Centerpiece of Medical Liability Reform.” The articlerecommended an alternative dispute resolution mechanism, which could radically change or eliminate the current litigation-based civil tort system.
Obama and Clinton favored a nonbinding process by which physicians could confidentially accept responsibility for medical errors in exchange for an offer of “fair compensation” and the patient’s promise not to sue. However, if the result is nonbinding, the parties could still try their case in a civil court. Predictably, opinion is divided—some legal experts see the change as necessary because the current system has become too expensive and time-consuming. Civil practice lawyers and judges are generally against it: they believe that it would be anti-democratic to deny plaintiffs their day in court.
