Judge, upset by doctor's testimony, allows punitives in medical malpractice case.

Careless words in a medical malpractice deposition came back to haunt a Florida hospital when a judge reacted with an extremely rare decision to allow punitive damages.

The ruling's impact was evident a week later when the hospital and several of its doctors made a final push to settle the case and granted the family of Edith Graupera significant damages. (Aleman v. Lifemark Hosps. of Fla., Inc., No. 02-04540 CA 30 (Fla., Miami-Dade Cir. Ct. Apr. 18, 2003).)

"When the conduct is outrageous enough to warrant asking for punitive damages, the cases almost always settle," said Thomas Masterson of St. Petersburg, Florida, chair of ATLA's Professional Negligence Section, who has followed the case. "I can't emphasize how rare it is. I have had only one or two cases in my years doing this where it has been appropriate to ask for punitive damages."

To receive punitive damages, the plaintiff must prove that a doctor intentionally made an error.

The lawyer who represented Graupera's family, Stuart Ratzan of Miami, attributed the victory to the "egregious situation" in which the 23-year-old Ecuadorian immigrant found herself in April 2000. After feeling nauseated and fainting, she was taken to Palmetto General Hospital outside Miami. She had a small abscess under her left arm but was held in the emergency room for 12 hours before she was finally diagnosed with toxic shock syndrome--a life-threatening, but in this case, easily treatable condition.

The hospital's infectious-disease specialist called for immediate surgery to drain the abscess. But a day and a half--and three orders for surgery--later, Graupera died, her abscess still undrained.

To Ratzan, the case exemplifies how some hospitals treat the poor. He alleged that the hospital's policy was to call only surgeons who participated in Graupera's health plan rather than nonnetwork surgeons, who, under managed care rules, would be paid less or not at all unless plan administrators were convinced of an emergency.

According to the lawsuit, one surgeon, Abelardo Arango, did not leave home that night despite receiving two calls from the hospital. In a deposition, Arango testified: "I actually think [a doctor] would be insulting me if he asked me to go and drain a small abscess."

Miami-Dade Circuit Judge Barbara Levenson reacted angrily to the remark during a March hearing on whether to allow punitive damages.

"That would be kind of like me saying I have been on the bench for 11 years, and I've listened to murder trials and medical malpractice trials and civil rights litigation, so I'm not going to listen to this automobile case because I'm just too senior to listen to that," she said.

In addition to Arango, the suit names the hospital and doctors Robert Urquiza, Nestor De La Cruz-Munoz Jr., Jorge Caridad, and Ruben Andrade, now deceased. Under Florida law, plaintiffs need permission to seek punitive damages, which the Florida Supreme Court has said must be reserved for cases of a "gross and flagrant character, evincing reckless disregard of human life."

The message of Arango's deposition testimony was clear, Ratzan said: "He had nothing to gain financially by going in. It was a Sunday night at 7:00. He didn't want to come in. If she was a more important person, a person with more money, he might have acted differently."

Arango's attorney, Aram Megerian of Miami, said the judge took his client's testimony "completely out of context." Arango's point, Megerian, said, was that he "didn't want to go behind the general surgeon's back" and that doing so "would have been an insult" to the surgeon on call.

Megerian maintains that Arango did nothing wrong. The case, he said, was settled on the insistence of the doctor's insurance company, which was concerned about Graupera's daughter. "There was a young girl who was left without a mother," Megerian said. "A determination was made that the sympathy factor for the jury in this case would have been too great for us to surmount."

The hospital's attorney, Scott Teich of Hollywood, Florida, declined comment, citing the confidentiality of the settlement agreement.

Ratzan noted that the case unfolded against the backdrop of efforts, nationally and in Florida, to enact tort "reform" to cap damages in cases like Graupera's.

"At this time, when doctors are complaining about malpractice premiums and too many lawsuits, you get a glimpse of how things really are in the medical profession," he said.