Famed NYC lawyer turns down $8 million offer in cerebral palsy case

by Walter Olson on July 10, 2009

And then the jury awarded $0.00. [NY Post] Thomas Moore of New York’s Kramer, Dillof, Livingston & Moore is generally acknowledged to be among the most nation’s successful medical malpractice lawyers.

{ 17 comments }

1 Max Kennerly 07.10.09 at 9:48 am

Keep that in mind next time you think plaintiff’s litigation is a walk in the park or that plaintiff’s lawyers get paid too much.

Plaintiff’s lawyers take on an extraordinary amount of risk. Assuming the litigation was not excessively contentious, he probably paid $100,000 – $250,000 out of pocket for costs and put in hundreds of hours to litigate it. The “opportunity cost” of the time spent by the firm on it is worth over half a million, probably more.

$0 recovery.

2 Todd Rogers 07.10.09 at 10:00 am

Cost of doing business.

3 Patrick 07.10.09 at 10:08 am

Legalized gambling, friends. But the focus on the lawyer’s interest in the case is misbegotten. We won’t know who drove the decision unless a malpractice suit is filed, but I feel terrible for the client.

As no doubt does Moore. I wish I could find one particular post, but Eric Turkewitz has written movingly on the topic of rolling the dice and losing, and I know Eric wasn’t thinking of himself, but rather his client, when he wrote it.

4 Walter Olson 07.10.09 at 10:27 am

And unless the NY Post knows more than it is telling readers, its headline ought not to have used the word “bungle”. A gamble that loses is by no means the same thing as a bungle. The policy question, of course, is whether gambling is a rational way for society to approach the issues raised by malpractice allegations.

5 shg 07.10.09 at 10:56 am

First, Tommy Moore isn’t known as a med mal lawyer, but a brain damaged baby lawyer. Far more money involved. Second, we all know that a NY Post headline has nothing to do with either the content of the story or any substantive fact. Third, as much as it’s easy to criticize the “wrongheaded” verdict of a jury finding culpability of a defendant, the system can be just as “flawed” when the jury arrives at a defendant’s verdict. Ending up on the wrong side of a verdict is a fact of life, not malpractice.

Tommy Moore said that the offer was far too low, and he took the path he believe best. And lost. That’s the nature of trying cases. Don’t worry about Tommy, though, as he and his wife, Judith Livingstone, will still be able to afford their humble lifestyle despite the verdict. Plus, I bet Tommy hasn’t given up on the case just yet.

6 Max Kennerly 07.10.09 at 11:09 am

“The policy question, of course, is whether gambling is a rational way for society to approach the issues raised by malpractice allegations.”

While I agree in theory, I don’t know how we resolve these questions any other way. As I’ve said before, I like the way the Vaccine Injury Compensation Board does it, by paying plaintiff’s costs and fees for meritorious cases, thereby removing much of the gambling from the attorney’s perspective and ensuring meritorious cases are heard.

At the end of the day, though, it comes down to either a meeting of the minds (settlement) or a simple yes/no answer (verdict). There’s inevitably gambling involved, much as there is in every economic transaction.

7 Samson Isberg 07.10.09 at 12:24 pm

The NY Post states that “her placenta ruptured”.

I have been an obstetrician for 30 years now, and I tell you now: There ain’t no such thing as a ruptured placenta. Never heard about it. Never read about it. Placentae can’t rupture. Either she has had a “uterine rupture”, or a “placental abruption”. But a placental rupture? Only a journalist can write such a thing.

If the NY Post is as well-informed on the rest of this story as they are on the obstetrical pathology part, I cannot understand why anybody would lend any credence to it at all.

8 Demosthenes 07.10.09 at 4:23 pm

In this high stakes Jackpot Justice poker game, even a skilled card counting professional gambler like the exceedingly wealthy Tom Moore occasionally loses.

Nothing personal. It is just business, Las Vegas style.

9 B Rad 07.11.09 at 12:08 am

“No one should second-guess sound legal advice just because the outcome was unfortunate.”—from the NY Post comments section.

Wow, that’s interesting. Replace “legal” with “medical” and I wonder if the writer still believes his statement.

10 CarLitGuy 07.11.09 at 1:13 am

Max,
while this may have cost the lawyer a cool quarter million in largely paper losses (his time, likely billing at least $600 an hour – though I’ve not pulled any fee ruling for this counsel, and may have grossly underestimated his hourly rate), I am left wondering how many previous cases he has won in which, through the magic of lodestar calculations, he has been paid some multiple of what he actually billed. Regardless, even with a contingency arrangement, the vast majority of contracts I have seen hold the client responsible for costs.

At the end of the day, on loss, counsel is out only his time, that of his staff, and overhead. Should he win, he either receives all that, with some positive multiplier, or a percentage of recovery which has nothing at all to do with the time actually invested in the case. At a mere 25% contingency, that $8 million offer would have represented an 8 to one return on his investment. Any poker player will tell you those are fantastic pot odds.

11 William Nuesslein 07.11.09 at 12:24 pm

We should not use kabuki dances to insure for adverse outcomes. Patients should be required to purchase adverse outcome insurance prior to a medical procedure. The patient would purchase a policy that best fit their circumstances. Mal Med Insurance taxes, with high overhead, decent citizens who understand that all of life is subject to risks.

And I want to thank the jury in this case. I often decry the stupidity of American Citizens, and this counter example brings me pleasure.

12 Commentor 07.11.09 at 1:01 pm

What kind of damages are sometimes won in such cases? I’m trying to put the $8,000,000 offer into context. Economic damages for a baby certainly seems speculative.

13 jkoerner 07.12.09 at 12:17 pm

Too bad NY does not have a law similar to California where a litigant who turns down a settlement and receives less at trial is on the hook for the other party’s legal fees.

14 Patrick 07.12.09 at 7:13 pm

Patients should be required to purchase adverse outcome insurance prior to a medical procedure. The patient would purchase a policy that best fit their circumstances.

What?

Even in “no fault” auto insurance states, the law allows suit for serious injuries caused by negligence. Between the physician, the hospital, and most patients, the risk of negligence causing serious injury is best left with the parties responsible.

15 Patrick 07.12.09 at 7:18 pm

Grrr.
Bad link.

Do you think Jesica Santillan’s surgeon and Duke University should have been allowed to escape liability for getting the blood type wrong in a transplant, because her parents didn’t buy a no-fault “astonishing surgeon scewup” policy?

16 ps 07.13.09 at 2:43 am

If anyone thinks that $8 million (or at least what the parents will ultimately come away with after paying their attorney) is not enough to look after this child’s needs for the rest of its life needs to look up the word greed. Whether they acted on their lawyer’s advice or not they deserved what they got.

17 William Nuesslein 07.13.09 at 11:54 am

Patrick,

Yes.

Life has risks. Medical mistakes is just one class of mistakes. Negligence is distinguished from just bad luck by a Kabuki dance. Look at the fetal-monitor cases where a quack would read fetal monitor tapes and see absolutely clear evidence of distress.

The amount paid for a death claim by a life insurance is based only on how much insurance was in force. Whether Dad was a saint or a bum has no bearing on the payout.

I suppose the Doctor and Hospital in the blood-type case would prefer not to be punished. But I am sure that the Doctor and Hospital do have lots of safeguards in their procedures, and that they take heed from the lessons learned from errors. That is all that should be expected from them.

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