Thursday, February 27, 2003

They want caps, but not for themselves: A doctor in South Carolina sued for and received a verdict for over $30 million in a defamation case. Here's the article, which is not available online without a subscription:
A recent $30.25 million verdict in South Carolina demonstrates that the value of intangible injuries -- a doctor's reputation in the case -- can be substantial.

Gregg Meyers, the Charleston, SC, solo, who represented the plaintiff, said that giving jurors a sense of the value of tangible items helps them gain perspective on the true value of a person's professional reputation -- in this case, that of a medical doctor whose ability to practice medicine was severely diminished by defamatory comments made by the manager of the defendant health care center.

He said the key to success in these cases is letting the jury decide the actual dollar amount.

"I've been trying intangible injury cases for a while now," said Meyers.

"Don't ever tell [a jury] what the value of a case is, but give them a sense of what other [tangible] things are worth," he said, using automobiles or works of art as an example.

On Dec., 19, 2002, after a three-day trial and less than a day of deliberations, a Charleston, S.C., jury awarded the plaintiff $30.25 million. The verdict included a quarter-million dollar award for conversion of a patient list by the employer, Trident Medical Center.

The decision may be one of the largest defamation verdicts nationwide, according to Meyers.

M. Dawes Cook of Charleston, S.C., attorney for the defendant, said that post-trial motions have been filed and are pending, but would not comment further on the case.

Office Conflicts

Dr. Bruce Skinner was an internist who went to work for Trident Medical Center in 1998.

After taking more than a year off for personal medical leave, he returned to work, but was reassigned to a different Trident facility in the small town of St. Stephen, where his employer said he would work until construction was completed on a new, larger facility.

Unfortunately for Skinner, he never made it to that facility.

He quickly discovered many problems in the small office, including the physical condition of the building, which he repeatedly insisted Trident address. But the physical condition of the facility was just the tip of the iceberg.

"They wanted him to bill as much as possible to the people he was treating," said Meyers. But Skinner was trying to provide quality care without expensive treatment, and didn't feel comfortable running up the costs of those services.

According to Meyers, his client was not comfortable with the pressure to bill more, particularly in a small town like St. Stephen.

To compound problems, there was a nurse in the office who was "exerting too much control" over patient care, according to Meyers. He said she was
providing treatment beyond the scope allowable to nurses, and Skinner wanted to put a stop to it.

He reported the activity to the office manager. After months of insisting that Trident address the issues that Skinner raised, they finally made the changes.

The squeaky wheel may get the grease, but in this case, the squeaky wheel also loses his job.

Meyers said that about a week after Trident addressed his client's concerns about the facility, the employer fired him by exercising its "not for cause"
termination provision in its employment contract, citing "business reasons relating to the marketplace," according to Meyers. The medical center added
that he was eligible for re-hire inside the organization.

According to Meyers, the office supervisor never had any complaints about Skinner as a doctor, and even gave him a written "personal commitment to help Skinner find a job," although that help never came.

Then the accusations began flying.

Meyers said the office manager accused Skinner of stealing an EKG machine and of purposely plugging up a sink with the intention to flood the medical facility.

"It didn't make any sense at all. [Trident's] theory was that [Skinner] was anxious to move from the office into the new facility, so he sabotaged the building," said Meyers, who was surprised that the company didn't try to "distance themselves" from the office manager at trial.

"Their argument at trial was that the statements [about theft and sabotage] were true. I think they embraced these bad statements in a way that seemed
to be cavalier," said Meyers.

Meyers pointed out to the jury that there is a disconnect between the company's position at trial -- that Skinner had stolen an EKG machine and had sabotaged the building -- and the office manager firing him "without cause" and offering to help him find work in the future.

His Name Is Mud

Meyers said that after his client's dismissal, Skinner was unable to secure another job in the area, and blamed his difficulty on the allegations being spread about him by the office manager both inside and outside Trident.

A doctor testified that he heard the accusations at a group meeting for independent doctors. Meyers said a nurse who knew Skinner professionally for 10-15 years testified that the alleged theft and sabotage would be shockingly out of character.

Skinner testified that Trident's refusal to return calls from reference requests from potential employers compounded the problem. Meyers said his client would have positive interview, potential employers would request references, and then he'd never hear back from them.

This, said Meyers, was evidence to satisfy the "malice" element that must be proven in a successful defamation case.

The Defense

According to Meyers the defense argued that the statements being made about Skinner were true, and trued statements can't be defamatory.

"They had a comment made by Skinner that he was aspiring to transfer to the new facility and reasoned that by stealing [the EKG machine] he would hasten
the transfer," said Meyers, who called the argument "ridiculous" on many levels, including the fact that the new facility wasn't even ready yet.

"Their circumstantial evidence was that he had access and motive, and we pointed out that it was absurd."

Meyers argued to the jury that if you want your employer to transfer you, the last way to get in the employer's good graces is through sabotage and theft.

"Skinner testified that perhaps [the defense] should have asked the cleaning lady [how the sink got plugged] instead of him."

Meyers also said the expert witness for the defense testified that the reason Skinner couldn't find a job was because of his whistle-blower status at Trident, and that was his own fault.

"They argued that there was little causation between Skinner's ability to find a job and what they did."

"But," said Meyers, "the jury saw a doctor who was trying to do the right thing," and, apparently, didn't believe the allegations of theft and sabotage.

"They didn't try to argue that [his] reputation wasn't worth much," said Meyers.

And, good thing, because the jury found that the value of a doctor's reputation held a tremendous value."

Making The Intangible Tangible

Meyers said that giving jurors analogies and comparisons to the value of tangible things in this world gave the ma perspective and visual image from which they might make the intangible tangible.

"I said to the jury, 'if this case was about a truck, you could say that that truck was worth $5,000. And if that truck had a winning racehorse in the back, it might be worth $15 million. [What] if the truck was carrying the Mona Lisa -- even that's easy to value. This truck was carrying the reputation of Dr. Skinner. Rank this kind of thing."

"Certain intangible things about life can be valued," said Meyers.

"I'm glad the jury took this case seriously."

And the same source it's reported that a San Rafael, California jury has returned a $31.7 million verdict for an opthamologist who accused disability insurer UnumProvident Corp. of cutting off his benefits as part of a management scheme to boost profits.

Isn't it nice to see these doctors getting their day and their due in court? Isn't it too bad they want to deny the same rights to all us non-doctors?

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