Mark Seigel, a Montgomery County doctor who is chairman of the Maryland section of the American Congress of Obstetrics and Gynecology, said lawyers representing victims can exaggerate the cost of caring for the victims to create higher payouts.
"Our insurance is very expensive in obstetrics and gynecology, and the reason for that are the big awards," said Siegel, also on the board of MedChi, Maryland's medical society. "If you ever get into one of these cases it's all about the economics. They overestimate what the expenses are. It's kind of like padding the bill."
It's very costly, malpractice attorneys counter, to care for children with disabilities and that care often must continue throughout their lives.
Yet Seigel and other doctors said malpractice lawyers play to jurors' emotions.
"It is very easy for jurors to say, 'We don't know what happened, but we think it's fair for the child to have some money to have a better life,'" Seigel said.
Research may back that claim. Studies have shown that, in general, jurors in Baltimore tend to be more sympathetic to plaintiffs in all cases, said Greg Dolin, co-director of the Center for Medicine and Law at the University of Baltimore School of Law. The jury pool may be of a lower demographic and may relate better to the victim than to the hospital executive, said Dolin, who did not follow the two cases.
Cases such as these don't bind other courts, as do Supreme Court decisions, but they can influence future decisions.
"The more verdicts like this that come in it becomes more of a benchmark," Dolin said. "It's not binding, but lawyers can reference what others have been awarded and ask for similar compensation."
The parents from Glen Burnie claimed their son Jaylan Norfleet was oxygen-deprived while still in his mother's womb and that MedStar doctors should have performed a Caesarean section rather than allow a prolonged vaginal birth.
In the Hopkins case, Enso Martinez and his wife, Rebecca Fielding, also claimed their son became oxygen-deprived in his mother's womb and that medical staff should have performed a Caesarean section sooner than they did. The birth had started at home, overseen by a midwife whose license was later suspended, but the mother was rushed to Hopkins because of complications. The judge in that case excluded evidence about the midwife's license, saying it would prejudice the jury.
Malpractice attorneys said they don't expect the cases to have widespread ramifications.
"I don't think two verdicts make a pattern," said Baltimore malpractice attorney Andrew G. Slutkin. "I don't think you are going to see people run to the courthouse to pursue claims. Claims are either legitimate or they're not."
Public Citizen's study found that lawsuits don't affect malpractice insurance rates. The consumer group's report recommended states take a closer look at why insurance companies raise rates, arguing that tort reform just takes away the legal rights of patients.
In the recent cases, Wais noted, his team had several medical experts back up the families' claims. Wais said he told jurors in closing arguments not to let their sympathy for the child cloud their judgment.
The attorney representing MedStar maintains that jurors ignored the scientific facts. He said the family's lawyers wouldn't settle because they were banking on the sympathy of a Baltimore jury.
"The verdict was against all objective evidence that nothing happened at birth," said John Fitzpatrick, a MedStar attorney with Colorado-based law firm Wheeler Trigg O'Donnell. "The jurors did not look at the evidence objectively."
Doctors and hospitals say that perhaps there should be more tort reform.
The University of Maryland's Carver said the verdicts subvert the cap on noneconomic damages in Maryland. She also said the verdicts "demonstrate a failure of the courts to fulfill their responsibility as gatekeepers by permitting evidence with no basis in fact or science to go to juries."
"We are greatly concerned by the recent verdicts and will be asking the legislature to look at remedies," Carver said.
Most doctors acknowledge that victims of doctor error should be awarded. But complications happen in medicine, said Gene M. Ransom III, CEO of MedChi.
"These kinds of verdicts are just not sustainable," he said.
Meredith Cohn contributed to this report Text BUSINESS to 70701 to get Baltimore Sun Business text alerts