Brewster Rawls Reflects on a $300,000 Settlement and What Makes Rawls Law Group Different

As Virginia state law malpractice cases go, a $300,000 settlement is a bit unusual.

The facts were straight forward: During a colonoscopy, the patient's gastroenterologist identified a 4 cm

precancerous polyp and marked its location with an endoclip and India ink before referring the patient for surgical removal. The patient underwent a laparoscopic hemicolectomy to remove the polyp.

The subsequent pathology report showed neither the polyp nor the endoclip were present in the removed tissue. Despite having undergone major abdominal surgery, the polyp remained in the patient's colon. The surgeon had missed it.

We had a decent - but not a "slam dunk"- liability case. Defending what the doctor did would not necessarily be easy, but a good defense lawyer would have a decent chance of winning. Here, I had no doubt as to the competence of our opposing counsel.

Damages were modest. This was one of those situations where a disaster could have happened, but it didn't. The cancer was still caught in time.

With Virginia’s absolute damage cap, insurers have a definitively limited high side risk. This means they are more inclined to roll the dice on matters with relatively moderate exposure. Hence, you tend to see a fair number of seven figure and high six figure resolutions, but a surgical case like this one in lower six figures is not seen that often.

This case is even more curious. We got it after another firm had voluntarily dismissed it. That circumstance alone tends to make carriers and defense lawyers bullish. Frankly, when the case came to us, I took it mostly because I thought it would end up being a decent means of getting more trial experience for my colleagues. It was a one medical issue matter, so our financial risk with experts and other costs was limited.

So, I was a bit surprised (pleasantly) when the other side made a serious effort to settle the matter.

Why did they do that?

The short answer is that I don't know, but you almost never do. While the case had gone well for us in discovery, there were no real bombshell events or changes.

Here’s my theory: From the start, we never asserted that the case was a bigger one than it actually was. We acknowledged that damages were not huge. We made no claim that this was likely to produce a "cap verdict."

Many plaintiffs' lawyers take a maximalist view. Some might look at a case like this and think that as long as there was a chance of a bell ringer verdict - and here there was a chance, albeit not a big one - then they should go full bore.

Maybe such an approach pays off for some, but I can't say I have seen it work very often. More frequently, such tactics backfire. Juries don't like parties who overreach. I swear they can smell it - and the side doing it is not likely to be rewarded.

Knowing we would try the case realistically made it riskier for the defense. On the one hand, they could feel reassured that the odds of a high verdict were reduced, but on the other hand, the odds of a defense verdict were also markedly lower. The likelihood of a plaintiff’s verdict of some amount was increased.

 I suspect that the defense lawyer evaluated the case appropriately. More importantly, the carrier and the doctor wisely listened to him. At least in my experience, the latter doesn't always happen.

Teaching point: When everyone does their job like they should, things tend to work out quite reasonably. That shouldn't be surprising, but it often is.