Expanding Damages in Medical Malpractice Case
As of 1994, there have been in Michigan, caps on non-economic damages awardable in medical malpractice cases. In most instances, the applicable cap is between $400,000.00 - $500,000.00. When one suffers serious injury as the result of medical malpractice, for example death of a family member, the amount of money awardable for non-economic damages is no where near enough to compensate the surviving family members. Therefore, it is extremely important to take the necessary steps to expand the allowable economic damages available in the case because economic damages are not capped. Giroux Amburn previously represented the estate of a young man in his mid 30’s who died as the result of medical negligence and he was survived by his young wife and three young children. One of the allowable damages under the Michigan Wrongful Death Act besides wage loss, is loss of parental guidance and training. The statute itself does not discuss whether or not the term “loss of parental guidance and training” refers to economic or non-economic damages.
Therefore, Giroux Amburn conducted state-by-state legal research looking for similar statutory language in relation to which any other state in the country had determined that the loss was a monetary one. Fortunately, many states with similar statutory language had already determined that loss of parental guidance and training was a monetary loss that could be calculated and therefore, in Michigan, they could make the argument that the language should be construed in the same manner. Giroux Amburn then presented a number of ways in which appropriate calculations could be made. It was important to point out to the court that parents provide a number of tangible services to their children including playing the roles of coach, nutritionist, counselor, therapist, tutor, financial adviser, and much, much more. Ultimately, the enhanced damage calculations created enough exposure for the defendant over and above the caps that the defendant decided to pay a large settlement to avoid trial. By: Robert Giroux, Partner Giroux Amburn/Posted August 1, 2014
Enhancing Non-Economic Damages When There Is Limited Physical Injury
Giroux Amburn represented a young man who was wrongfully stopped by two City of Detroit patrol officers after which the young man was punched in the head. The young man was then arrested and held overnight in police custody. After being let out the following morning, he visited a local hospital emergency room and was diagnosed with a fractured jaw. Fortunately, the young man’s jaw healed in approximately 6-8 weeks without residual problems. Prior to trial, defense counsel continually argued that the case was one of limited damages due to their client’s favorable recovery and as such defendant’s offered relatively little money to settle the case. Believing that the case was about much more than a broken jaw, with the permission of their client, they rejected the settlement offer and proceeded to trial.
During trial in the federal district court in Detroit, Michigan, Giroux Amburn spent much time showing videotape footage, cross examining the two defendant officers, catching the officers in lie after lie demonstrating to the jury the tremendous effect the occurrence had on their client mentally and emotionally. They established that the stop was unlawful, the arrest was unlawful, their client was treated abusively by the defendants and that the abuse had a lasting effect on their client thereby causing nightmares, anxiety, fear of police officers and a feeling of helplessness. In the end, the jury agreed with Giroux Amburn and awarded Plaintiff $2.5 million dollars. By: Robert Giroux, Partner Giroux Amburn/Posted September 22, 2014
Turning Less Into More
Giroux Amburn represented the family of a man who died in jail. The criminal conviction that put decedent in jail was a particularly ugly one and the sentence for the conviction was rather lengthy. Notwithstanding that, the decedent’s death, was absolutely avoidable and unacceptable because the decedent, who suffered from a mental illness, died from dehydration. Counsel for the defense, believing that the criminal conviction and lengthy sentence were to be admitted into evidence offered a relatively low amount of money to settle the case. In addition to thinking that the jury would be greatly bothered by the conviction and lengthy sentence, the defense believed that a jury would not award a large sum of money to the family of a convicted prisoner due to the fact that the incarceration precluded any close family relationships other than occasional letters and phone calls.
Deciding to go forward with trial, Giroux Amburn decided to waive any request for damages related to loss of society and companionship which is one of the main elements of compensation in wrongful death cases. Instead, they decided to go forward with a single item of damage known as conscious pain and suffering. While the decision potentially reduced the chances of a large verdict because they were eliminating all but one category of damage, the decision enabled Giroux Amburn to keep out of evidence the criminal conviction, the lengthy sentence and any discussion of the relationship between the decedent and his family members who had not physically seen him for a number of years. Fortunately, the strategy paid off, the trial was clean, meaning it focused only on the relevant issues of liability and those damages limited to conscious pain and suffering. The jury rendered a verdict of $5.2 million dollars. The verdict was almost 50 times more than the amount offered by defense to settle the case before the trial started. By: Robert Giroux, Partner Giroux Amburn/Posted February 3, 2014
Research and Preparation Pays Off
Giroux Amburn represented the family of a 45 year old man who, while involved in a construction project, fell approximately 150 feet to his death. In Michigan, under the Michigan Wrongful Death Act, there are only certain damages available to surviving family members including loss of love, society and companionship, loss of financial support, medical bills, funeral costs and conscious pain and suffering experienced by the deceased prior to his or her death. Usually, the term conscious pain and suffering relates to physical pain and suffering experienced by the deceased between the time of his or her injury and the time of death. However, Giroux Amburn found a line of cases, both Michigan and federal, establishing that conscious pain and suffering should include mental and emotional injuries as well as physical pain and suffering.
What is more, the courts had ruled that a person could recover for mental or emotional injury or trauma occurring even before any physical contact takes place. In order to help their clients by expanding the size of the potential award for conscious pain and suffering, Giroux Amburn used expert testimony from a psychiatrist was well as case studies from airplane crash cases and convinced defendants that a potential recovery for decedent’s pre-impact fright and shock was huge. Ultimately, Giroux Amburn settled the case for a huge number involving several million dollars. By: Robert Giroux, Partner Giroux Amburn/Posted March 27, 2014