Warren West’s pregnant wife died during an emergency delivery in Nevada in 2005. His daughter was born with severe brain damage.
Attorney Chris Gellner filed a malpractice lawsuit. Another attorney, Dave Haley, served as guardian ad litem for the child.
Here’s what they negotiated. A $238,000 settlement. But, only $30,000 was to go to the daughter.
You read that right. Only $30,000 was to go to the daughter.
About $80,000 was to go to Medicaid – to reimburse for expenses.
And the lawyer and guardian would divide about $128,000.
Seems excessive? The judge agreed and ordered attorney fees be reduced.
This case worked its way up to the Nevada Supreme Court. They agreed the lower court had the authority to change the distribution. The Court noted that Gellner had limited experience as a malpractice attorney and he made the case more complicated than necessary with his amended motions, dismissals, and time-barred complaints.
Nevada Supreme Court noted the lower court can decide to allocate up to $100,000 to the injured child.
If the judge had not taken any action, the attorneys would have split an amount four times the crumbs negotiated for the child.
This is a terribly tragic and sad case by any metric you choose. The most likely scenario is that the State of Nevada will ultimately take over the care of this injured child as a welfare case.
This is what welfare is for, absenting a large enough settlement to provide continued care without it. Obviously that is not the case here.
The attorneys who were willing to “take over” the settlement away from the child probably supposed that care would eventually be taken over by the state; and if you asked them, they would probably have told you this.
Nonetheless, they don’t have too much to be proud of.
Michael M. Rosenblatt, DPM
And they wonder why so many people dislike them? This is just a sin! Any person with a soul would reduce his take and give it back to the injured child, who clearly will need it How many hours did he really put into the case, really, not thr inflated amount, the real humber of hours, Then pay him a fair hourly wagem not $500 per hour, maybe $50 per hour?
$100,000? That’s it??? Did you forget another trio of 0’s? What’s $100,000 going to get a genuinely brain-injured newborn? Or did the kid die, too?
Nothing about this adds up. Or am I missing something?
Here’s the case: http://caselaw.findlaw.com/nv-supreme-court/1598108.html
A little more detail from the court record:
“Unable to care for the baby’s medical needs, West (the father) relinquished (the baby) for adoption and she became a ward of the state. Nonetheless, West retained petitioner attorney Christopher Gellner to bring a wrongful death and personal injury claim on the baby’s behalf against real parties in interest Dr. Joel Orevillo and Stewart Pulmonary Associates, Ltd. (SPA).1 While litigation was ongoing, the baby was adopted and named Ashley, and petitioner Dale Haley was appointed as her guardian ad litem.”
Just because there was a bad outcome does not mean malpractice occurred… Let us not assume that because there is an unfortunate child that “somebody has to pay”. This is the mentality that has gotten this country into the malpractice quagmire that we are in.
Nice post. I learn something new and challenging on blogs I stumbleupon everyday.
It will always be exciting to read through articles from other authors and use
a little something from other websites.
“Gellner had limited experience as a malpractice attorney and he made the case more complicated than necessary with his amended motions, dismissals, and time-barred complaints.”
Unless he fully informed the father of his limited experience as a malpractive attorney, the father and/or the attorney for the child should sue Gellner for a less than opitmum outcome.
First, I don’t know anything about the particular merits of this case, but using an inexperienced medical malpractice attorney is never a good idea. I’m glad the judge decreased the fees to give the child more of the settlement. However, I fail to see what this has to do with Medical Justice other than to stir up more attorney hatred by doctors.
Fortunately, as a long time plaintiff’s attorney and former RN, I work everyday with wonderful, very credentialed physicians who review cases for me and testify despite the risks. They don’t have the level of vitriol that appears on this website. You would think there was actually no such thing as medical malpractice. I can assure you, and sad to say that business is very good. I wish it wasn’t. Instead of hating attorneys, I think you should spend more time on preventing errors. Certainly, I am an advocate for mediation in medical malpractice and admire the programs at St. Luke’s Rush and other institutions which have a program for identifying errors, made determinations as to how they will proceed with a claim and utilize apology and early settlement for meritorious cases. They actually use plaintiffs and defense attorneys in their program.
To Kathy:
You ask a good question. What does this have to do with Medical Justice? Actually everything. But, it’s not designed to stir up vitriol to attorneys.
There are many talented attorneys who do a good job advocating for their clients. They are seasoned veterans who really understand the merits of the case. But, there are many dilettantes who are just as capable as suing a doctor for malpractice – and do so, when there is limited basis for propelling any action. Yes, it’s true that these attorneys will often lose and learn an expensive lesson. That comes as cold comfort to the doctor defendant.
In medicine, if you have a brain tumor, you typically must have a neurosurgeon remove it. If you have coronary occlusion- you must have a cardiologist unblock it. Other specialists will not have hospital privileges to perform these procedures. But, if you have a JD degree, any type of lawsuit can be filed – with collateral damage to all parties – that includes both plaintiffs and defendants.
For patients who become plaintiffs and pursue meritorious cases, all parties would be best served if experienced counsel is invloved. And, no, that did not happen in this vignette. So, no vitriol. Just an honest observation.
To Medical Justice:
Thank you for your very measured response.
As a longtime subscriber to your blogs, and someone who has surveyed your complete website, I’ve seen many examples that can only be described as pandering to an already irate subscription base. For example, you were utilizing cartoon like videos which depicted plaintiff’s attorneys as all money grubbing, avaricious individuals. I actually used those cartoons in a motion to exclude from evidence the finding by a professional association, against a particular expert who was to testify on behalf of a patient that I represented. I not only had to undermine and discredit the findings of the professional association, which I did, I also had to show that the person who had brought this complaint against her, one of your subscribers, was bent on destroying this particular physician because of the expert testimony.
I know you believe you are providing a legitimate service, but if you are going to try and destroy plaintiffs’ attorneys in the process, which has been a part of your advertised arsenal, then you are only trying to do to another profession what you claim is being done to your profession. I could spend a lot of time regaling you with horror stories of gross incompetency that I observed when I was nurse and in my career as a medical malpractice attorney. However, I would rather accept the fact that their are good and bad in every profession and practice as competently and ethically as I can in order to be a good person, professional and citizen.
Methinks thou dost protest too much. Yes, I believe we provide a legitimate service. I’ve spoken on panels with many of your most talented peers (and I believe I’ve earned their respect).
From our website:
There are two types of malpractice attorneys: experienced, specialized medical malpractice attorneys and generalists, who dabble in malpractice law.
Experienced medical malpractice attorneys are skilled at determining the value of a case. These attorneys generally make good judgments in their pursuit of medical malpractice cases, and they rely upon a trusted network of expert witnesses to obtain sound medical opinion before moving forward.
At the opposite end of the spectrum are attorneys who are inexperienced in medical malpractice litigation. These attorneys typically do not have a network of expert witnesses at their disposal and lack the background to know how far to proceed with a claim. Further, since plaintiff’s attorneys receive the bulk (if not all) of their payment from contingency fees from cases either won or settled, the more time invested by the attorney, the more motivated he or she is to continue pursuit of a case, regardless of the underlying merit.
Medical Justice focuses on deterring the generalist attorney from pursuing a medical malpractice case by increasing the risks associated with filing a frivolous medical malpractice suit.
Your point is that there are patients who have been injured by negligence. Guess what? I agree. But, where we part ways is that I believe overall the medico-legal tort adversarial system creates more damage than benefit. I don’t expect you to agree. But, in my humble opinion. the current tort system does not deter negligence. And if does a poor job of making injured parties whole.
The reason many doctors are irate over the current tort system is because many have been unfairly exposed to it. They have opened a letter that said they acted with wanton disregard for a patient’s safety causing irreparable harm. Yet, the New England Journal of Medicine noted last year than 80% of these cases end in zero payment to the plaintiff. If you are interested in knowing what alternative I would favor, look no further than patientsforfaircompensation.org.
Re: Kathy’s “measured response”–
Whenever I hear or read someone disparaging another for accusing them of “money grubbing,” that tells me that a nerve has definitely been hit. Were it otherwise, the accusation would be ignored as foolishly untrue. I agree with Dr. Segal–sounds like too much protest.
Have I ever heard of medical malpractice? Sure. I’ve even testified against other doctors, which I find to be a distasteful thing to do. Someone has to do it, and it’s better if it comes from within the ranks rather than from elsewhere. Most times I’ve been consulted, though, it’s been would-be frivolous suits, which has led me to a specific strategy for med mal consultations: I’ll review anything for defense and promise to give my honest opinion. Sometimes the only possible thing to do is try to figure out how best to settle–clear cut med mal. Most of the time it’s otherwise: no real case to speak of and defense is clearly indicated. I’m on the case.
From the opposite side, though, if a plaintiff’s lawyer wants me to review, I agree subject to them accepting my rules. When I review the case, I’ll find it to be in one of three categories. In the first case, there has been an egregious fault on the part of the doctor. I’m on that case, even up to and including testifying in court against him.
In situation 2, something happened that I wouldn’t do myself, but I can see where a reasonable, thoughtful doctor might do it. I won’t testify against that doc, but a suit wouldn’t be a priori frivolous. At that point I’ll share those thoughts with the consulting lawyer, but wash my hands of the case.
Case 3 is the most common: no case, and often the lawyer will keep pressing me for an angle from which to sue. One went so far as to suggest that, even tough the problem that arose did not come from a lapse (failure to put on a pulse oximeter, for example), that the theory of felony murder should be applied: a serious problem arose and there was a breach of technique, therefore there is guilt because of the–entirely unrelated–breach. That’s frivolous. In these cases, I also inform, but then I wash my hands for the time being. I tell the consulting lawyer, though, that I retain the right to notify the proposed target and even make myself available to them as their consultant and witness.
I put all three of these options on the table ~before~ I accept reviewing the case. Most lawyers, I admit, are thoughtful and like this, feeling that they’d rather only take “good” cases. Two have balked and told me that what I do is unethical (to which I reply that they’re perfectly free not to retain my services). Others have decided to try to persuade me of the error of my judgment, but never successfully.
So, is there medical malpractice? Sure. Is it as rampant as many attorneys portray it as being? No. Did John Edwards’ “channeling” of the thoughts of the baby in intrauterine distress make lawyers look good? I’ll let Kathy answer that one. Do I think the word “egregious’ applies to the way that he tried that case. Yes.
Is this response “measured? Dunno.
JH