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Medical Malpractice Attorneys
Philadelphia, Pennsylvania
Medical Malpractice Information from Norman Perlberger, Esq. Malpractice Attorney in Philadelphia
I want to report on an innovative approach to a medical malpractice case that was borrowed from the asbestos litigation in which I was involved for over 20 years. It is called "reverse bifurcation".
Often, cases should settle, but they fail to do so because the attorneys and/or the insurers cannot agree on what the case is worth. A determination by a judge or jury often settles the case. In order to avoid a long trial, some creative approaches have been crafted by courts. This happened, mostly in the Philadelphia cases, in the asbestos litigation, where "reverse bifurcation" was ordered. This means the case was tried on the issue of damages first. If the threat of trial or the actual trial resulted in an ultimate settlement, that was it. If not the case would then be set for trial on liability.
This became an effective tool, especially where after decades of litigation, it was pretty clear which asbestos mining companies, manufacturers, distributors, suppliers or contractors knew of disease-producing defects under strict liability and had been subjected to compensatory and/or punitive verdicts at given job sites.
Building on the success of reverse bifurcation in other types of cases, a Pennsylvania trial judge sua sponte (meaning, he did it on his own without either side asking for it) reverse bifurcated a medical malpractice case. Gulick v. St Luke's Hospital and Health Network, Inc. (Lehigh County; reported in The Legal Intelligencer, Vol 233, P. 399, January 18, 2006).
The trial ended the damage phase of the case with an award of $1,547,500 (including $500,000 for pain and suffering). Two physician-defendants, pre-trial, had tendered their primary policy limits of $500,000 each. The demand had been for $10 Million and plaintiff's counsel had rejected $1 Million.
This underlying serious personal injury case was for the wrongful death of a three-day old baby, who allegedly was found to have lungs that were not "matured" despite the fact that the child was delivered by Caesarean section after a 9-1/2 month pregnancy. The complaint alleged that a pre-birth amniocentesis could have been performed identifying the baby's vulnerability to anesthesia introduced to correct an omphalocele (hernia at the umbilical cord site). Defendants raised various defenses.
If the case does not settle - and the prospects are good, since the verdict was within striking distance of defendants' pre-trial offer - the second phase will determine if any of the defendants were negligent in their care of mother and child, and what apportionment of liability should be made, if any, amongst the defendants (including those that had already settled). In reverse bifurcations, the settled defendants remain in the case so long as there are any unsettled defendants, because of apportionment, contribution and indemnity issues.
While the ultimate outcome of the case remains of interest, it is significant that this method of determining damages, before the liability phase, to promote settlement between the parties, is one that we may see increasingly in the future, especially where there are complex issues, multiple defendants and a wide distance between the parties before trial on the value of the case. Since it potentially involves two trials, which would increase the time, cost and involvement of the parties, counsel and the judicial system (including the empanelment of two juries), it is unlikely that courts will rush to introduce bifurcation, especially reverse bifurcation, into the medical malpractice arena.
The approach of reverse bifurcation should be included in the arsenal of options for personal injury attorneys and courts in limited situations. Other less costly and speedier methodologies exist - e.g., mediation and non-binding arbitration - and they are already employed in many medical malpractice & wrongful death cases to bring parties together in their settlement efforts. HI-LOW arbitration - where a ceiling and floor in values are set - is also a popular mechanism for streamlining litigation and limiting the risks to both sides.
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