Federal appellate court justices for the Tenth Circuit issued a clear warning to defendants who argue for more time in the wake of last-minute settlement deals wrangled by co-defendants to avoid trial: Don’t count on it.
In Monfore v. Phillips, a doctor was accused of medical malpractice – alongside several other physicians. As often happens in these cases, defendants all presented a united front as the litigation wore on. There are, of course, many benefits to this, such as reduced costs by pooling resources.
However, it’s quite common for litigation to end in settlement agreements prior to trial, and it’s not unheard of for these developments to occur even on the eve of trial – or during trial. So when every other defendant broke rank on the united front and struck a deal with plaintiff just before trial, the sole remaining defendant doctor claimed he had been blindsided and needed more time to develop a new legal strategy, one that would have pinned the blame on his former co-defendants.
While the trial court would have been within its discretion to allow defendant that break, the court wasn’t inclined to do so. The case had already been pending for years, and jury selection was already scheduled. Ultimately, the jury sided with plaintiff, representative of the estate of deceased patient, awarding her $1 million – solely the responsibility of that single remaining defendant.
Defendant appealed on grounds trial court had abused discretion by failing to grant him more time. Appellate court, however, soundly rejected this defense.
This was a case of diagnostic error resulting in wrongful death. Decedent went to the hospital one day, complaining of neck pain. After undergoing a myriad of tests, doctors learned he had throat cancer and that, while treatable, it would require immediate attention. However, there was a major problem: That diagnosis did not make its way to the patient. Instead, he was sent home with a prescription for antibiotics and nothing else.
A full year later, he again returned for medical treatment, complaining of unbearable pain. By that time, his throat cancer was too far gone, and it was terminal.
His widow pursued a claim of negligence against numerous defendants, but as mentioned previously, only one made it to trial.
Although the sole remaining physician claimed surprise that his co-defendants abandoned him to stand trial alone, the appellate court mused, “Can a partial settlement really come as a surprise at an age when virtually all cases settle in part or in whole, many on the eve of trial?” The reality, the appellate court noted, is that such outcomes are foreseeable, and in fact occur all the time in multi-defendant.
While defendant initially benefited from that united front through the discovery phase, his legal team failed to plan for a very common outcome in these cases, which is that some defendants jump ship for attractive pre-trial settlement offers in exchange for being excused from further liability. Plus, the deal may be confidential and they are never actually found liable for any wrongdoing.
Plaintiffs benefit from these pre-trial settlement deals because it saves them the expense of the trial and the ordeal of having to prove wrongdoing. It’s a guarantee of compensation where that guarantee does not exist at trial.
The court noted that even if all defendants would have gone to trial, a failure to prepare with expert witnesses and testimony that could show contributory negligence by co-defendants could lead to regret. It’s a possibility for which defendants have to be prepared, and failure to be prepared isn’t anyone’s fault by the defendant’s.
Contact our South Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
Monfore v. Phillips, Feb. 10, 2015, U.S. Court of Appeals for the Tenth Circuit
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SC Supreme Court: Med-Mal Indemnity Action Barred by Statute of Repose, Feb. 14, 2015, Spartanburg Medical Malpractice Lawyer Blog