Thomas William Malone:   Tommy Malone is a medical malpractice trial lawyer practicing in Atlanta, Georgia.  He received his pre-law education from the University of Georgia and attended the Walter F. George School of Law at Mercer University receiving his LL.B in 1966.  His practice is limited to plaintiff's personal injury and wrongful death litigation.  He was named 1995- Georgia Trial Lawyer of the Year by the American Board of Trial Advocacy.  He is past President and Life Member of the Georgia Trial Lawyers Association; and as a member of The American Trial Lawyers Association, he has served as State Committeeman, member of the Board of Governors, and is a Life Member.  He is a Fellow of the International Academy of Trial Lawyers and also a Lifetime Fellow of The Roscoe Pound Foundation.  He is a Diplomate of the American Board of Professional Attorneys and he is  listed in The Best Lawyers In America, Woodward/White, Inc., all editions.  He is a frequent speaker for medical and legal groups.  He has won numerous record setting verdicts.  His publications are in the field of trial practice and include, among others: Maximizing Damages Through Voir Dire and Summation, The Harrison Company (1988); "A Paralyzing Case of Pneumonia", Endgame:  Winning Closing Arguments From Great Georgia Cases, Daily Report, American Lawyer Media, L.P. (1994); "Voire Dire and Conduct of Judge and Jury", Georgia Trial Lawyers Association Trial Practice Manual, Georgia Trial Lawyers Association, co-authored with Hon. Frank H. Eldridge (1993 & 1994); "Handling The Plaintiff's Case", Medical Malpractice:  Handling Urology Cases, Shepard's/McGraw Hill, Inc. (1990);  "Direct Examination of a Neuropsychologist", Personal Injury Review - 1987, Matthew Bender Publications (1987); "Closing Argument - Case involving the Wrongful Death of a 7-Year Old Girl", 1983 Personal Injury Deskbook, Matthew Bender Publications (1983).

DEMONSTRATION OF A CLOSING STATEMENT IN AN HMO CASE

I.          INTRODUCTION

            It is my belief that only the closest of cases can be won or lost in summation.  However, summation is the opportunity for bringing together an understanding and full appreciation on the part of the jurors of the plight now facing the client and his or her family as a result of the carelessness of the defendant.  This is the opportunity for maximizing damages!

            While the general principals of damages in a case against an HMO defendant are the same as in a general medical negligence case, today every juror hearing a case involving medical malpractice committed by a managed care organization does so as a part of this health care revolution and brings to the calculation of damages, both compensatory and punitive, their understanding, praises, and fears of the system. Today jurors hearing managed care cases know the backdrop.

            Managed care organizations are the products liability defendant of the 1980s.    Profit is the bottom line and there is plenty of it in today's system.^[1]  The recent announcement of Aetna's deal to acquire U.S. Healthcare, Inc. for $8.9 billion in cash and stock, creating the nation's largest managed-health-care company, certainly serves as a striking example of profit-driven health care.^[2]  Not all of the savings created by managed care are reinvested into health care to the benefit of the consumers;^[3] much of it is going to line the pockets of managed care executives.^[4]  For example, the Wall Street Journal reports that out of the recent deal by Aetna to acquire U.S. Healthcare, CEO Leonard Abramson and his family will reap a whopping $920 million in cash and stock. Physicians have even been prohibited from disclosing expensive alternatives to their patients.^[5]  Medical device and pharmaceutical manufacturers even offer a cheaper "managed care product line".[6]  While statistics differ regarding how deeply managed care has penetrated health care delivery, some sources indicate that today, seven out of ten Americans entrust their health care to some form of managed care organization (MCO);^[7], and 45% of United States physicians are under contract with managed care organizations (MCOs);^[8] administrative risks and liabilities associated with such arrangements may shift from a focus on the individual physician to the MCO.^[9]  Profit-motivated decision-making will predictably increase both the risks and liabilities associated with the delivery of health care.^[10]  

In managed care cases it is vitally important to obtain copies of all contracts between the provider and the patient, the MCO and the physician providers and the MCO and hospitals or other medical groups with which it contracts.  This is where you will find evidence of the profit incentive and its potential to taint medically appropriate care. 

Discount contracts, fee withold arrangements, gag clauses may be found in these contracts.  They are relevant to illustrate the financial or profit motive underlying medical treatment.[11]  Once such contracts are in evidence, counsel is permitted to draw from and comment upon the evidence in summation.[12]  Thus, in cases not involving ERISA plans, highlight these motives and the potential impact on decision-making.  Jurors are incensed when they find that profit motivation is improperly and detrimentally impacting on healthcare decision-making. 

In the paragraphs that follow, I hope to share some insight into my practice in the courtroom against one managed care defendant and will provide excerpts from my summation in a recent case as illustration. 

II.        ILLUSTRATION - SUMMATION FROM Adams v. Kaiser Foundation Health Plan of Georgia^[13]  

            In this medical malpractice action the Defendant, Kaiser Foundation Health Plan of Georgia, Inc., contractually agreed to provide James Don Adams, III and his family comprehensive health care including physician, nurse, hospital and other care on an emergency and non-emergency basis.  The plan directs members to call Kaiser in the event of emergency and provides an after hours telephone number.         

            A. Factual Background

            On March 26, 1993, Lamona Kaye Adams was instructed to bring James Don Adams, III, age six months, to the KAISER Southwood facility.  He was briefly examined by the Kaiser doctor who diagnosed upper respiratory infection with post nasal drip, and recommended saline nose drops, vaporizer use and Tylenol.  The Doctor told Mrs. Adams not to worry as many children with temperatures of even 105 degrees are not seriously ill. 

            After following the Doctor's instructions, Mrs. Adams awoke at approximately 3:30 A.M., the next morning, found her child to be even more feverish and called the Kaiser Emergencies/After Hours number.  She reported to the nurse on duty that her child's temperature was 104, and that he was moaning, experiencing panting breathing, and he was very limp and was not moving.  Mrs. Adams was advised to give her child a cool bath and await a return call from the nurse.  Mrs. Adams followed these instructions and called her husband to come home from his night job.

            The after-hours nurse telephoned the on-call pediatrician and generally related the child's symptoms, advising the doctor that she had ruled out respiratory distress.  Based upon the inadequate information provided by the nurse, the doctor directed the nurse to tell Mrs. Adams to take her child to the Scottish Rite Emergency Department, located approximately 42 miles from the Adams' family home in Fairburn, Georgia.  Scottish Rite is under a multi-million dollar contract with Kaiser for the care of its pediatric patients.

            The nurse called back at approximately 4:00 A.M. and transmitted the instructions to Mrs. Adams, who asked the nurse  for directions.  Speaking from the Emergencies/After Hours line at Kaiser's Glenridge facility located in the Scottish Rite neighborhood, she declined to give the directions, and instructed Mrs. Adams to telephone Scottish Rite for directions.

            At approximately 4:30 A.M., James and his parents set out, in stormy weather, for Scottish Rite.  Approximately 30 miles into the trip, James experienced severe difficulty breathing, lost consciousness, and experienced a respiratory arrest which led to cardiac arrest.

            Mr. Adams sped past the interstate exit and on to the nearest hospital, Kennestone Hospital at Windy Hill which is approximately 36 miles from the Adams' home, where the emergency room physician noted that the child was unresponsive and in full cardio-respiratory arrest.  The ER doctor and the staff of the Windy Hill Emergency Department instituted emergency cardiopulmonary resuscitation measures, and were ultimately successful in obtaining a return of pulse and respiratory effort.  However, when color returned to his body it did not return to James's hands and feet.

            James was transported via ambulance to Scottish Rite where he arrived at approximately 7:30 A.M. and was admitted in septic shock with poor perfusion and disseminated intravascular coagulation.  Admission diagnosis Hypoperfusion syndrome. The color never returned to James's extremities, and by day three of hospitalization, the child's arms were black below the elbows and his legs were was black from the mid-thigh.  On April 6, 1993, James went to surgery where his hands and feet were removed from his body. James subsequently underwent several debridements, porcine grafts, split-thickness grafts and other related surgical procedures. 

            The Plaintiffs contended that delayed treatment here resulted in prolonged hypotension, cardiac arrest, and ultimately caused or contributed to the limb loss. 

            Kaiser defended this case on both standard of care and proximate cause issues:  First, notwithstanding its violation of its own rules and regulations, the care was proper.  Second, the "so what" defense arose whereby most of the defense experts, including the subsequent care physicians at Scottish Rite, opined that prompt treatment would not have prevented the amputations.

            B.        Summation on Causation and Liability

            An excerpt from my summation in the case may help illustrate the arguments as to causation and liability:

2.   Summation on General Damages - "Magic"

            The "magic" of the damages case came by causing the jury to address the issue of general damages.  This theme may best be illustrated through excerpts from my summation.  You may recognize the advice of my good friend, plaintiff's lawyer Howard Nations of Houston, Texas, who is known nationally as an expert in development of themes for general damages.

            The following includes excerpts from my summation in the Adams case:    

            Now, we talk of money. We talk of money because there is no magic.   Wave a wand and restore his limbs, this family will run out of this courtroom, and I'll be right behind them.  But, ladies and gentlemen, there is no magic.  No magic for this child.   There is only stark, cold, absolute reality.   Reality is what this family must deal with. . . .  You swore that you would address every element of damages in this case and award an appropriate number. Every one of you swore to that.  And if you hadn't sworn that you could deal with it, you would not be sitting here.   That's every element.   And it's going to be a tremendous number.   And we all knew that when we started. [Defense counsel] knows that.   

            But what about this magic that exists in the world of children; the magic of each new day, new challenges, dreams, fantasies, magic of new friends, the magic of testing one's talents against his sisters and his cousins and his friends.     

            The magic ordinarily is that special feeling that only children know that we can think back on, perhaps, if we are lucky; the magic of hitting that ball a bit further than somebody else hit it, the magic of swimming a bit faster, the magic of that special, special moment when we rode that bicycle and wobbled down the street.  Those ‑‑ that's what life is about. That's what the enjoyment of life is about.   Magic of his days.     

            What is this loss you ladies and gentlemen are called upon to measure? I'm going to share with you an example of prose; what is a boy. . . .  Others have said things better than I can say them, and this just touched me when I read it.  

            Between the innocence of babyhood and the dignity of manhood, we find the delightful creature called a boy.   Boys come in assorted sizes, but all boys have the same creed ; to enjoy every second of every minute, every hour of every day, and to protest with noise, which is their only weapon. 

            [James is] not here.   He protested about being here.  When the last minute is finished, and mom and dad pack them off to bed at night.   Boys are found everywhere. On top of, underneath, inside of, climbing, emerging from, running around or jumping to, little boys; mothers love them, older sisters tolerate them, and heaven protects them.  A boy is a magical creature.   You can lock him  out of your workshop, but you can't lock him out of your heart.  

            You can get him out of your study, but you can't get him out of your mind.   You might as well give up.   He's your captor, your jailer, your boss. A pint‑sized cat chasing a bundle of noise. But when you come home at night with only the shattered pieces of your hopes and dreams after a long day's work, that little boy can mend all of those problems just like new, with two magic words, hi, dad; hi, mom.   Little boy.   

            Now, let's talk about money.   This is the verdict form you'll have out with you.   I told you there would be two cases.   One is A, and one is B.  The A is the parents ' claim.   A million three hundred sixty thousand ninety‑eight dollars is what [plaintiff's economist] testified to you, without objection, that the cost of care reduced to its present cash value, the undisputed cost of care and cost of benefit, the undisputed cost of care and cost of benefit from now until age 18. . . .  And I assure you that Kaiser will be free from any other obligation after this family ‑‑ once this verdict  comes in and comes in a just and fair amount.  They will not have to worry about ever hearing from this family again.  

            . . . This family is there as a prisoner of Kaiser because they fear that to change any kind of insurance coverage at this stage of the game might just result in no coverage at all. . . .    

            So, allowing nothing for loss of services that you are entitled to, add into this for him, this number at a  minimum has to be one million three hundred sixty‑five thousand ninety‑eight dollars to give him the bare minimum until his 18th birthday outlined in this plan.              

            The second, and I suggest to you, if you want to add something for loss of services, you add it to it, and that will be what the parents get that they can do with as they see fit so long as they provide the services that the child needs.  They are obligated to do that with this money because the law requires them to look after their child.   Now, at age 18, though the law does not require them to look after their child anymore, regardless of whether they would or not, there is the legal way the matter has to be presented to you ladies and gentlemen.               

            One million three hundred thousand dollars was the median number for loss of income, assuming very different  factors. . . .  You remember [the economist], even though we hurried, that  was the midline point under several different assumptions.   

            We suggest to you the out‑of‑pocket money that has nothing to do with losing the enjoyment of earning money, this is the out‑of‑pocket money which has to be reduced to out of cash value, the cost of care with all the blanks in there that they weren't able to put any numbers on these, these damages that we  are talking about are only submitted to you if we first cross the threshold to satisfy Her Honor that we have proved this with reasonable certainty or reasonable specificity.   They are called special damages.   

            They are treated differently than general damages, which I submit to you is what this case is really about, the general damages for the pain, the suffering, the loss of enjoyment of life that will be with this child and this family every day that he lives, every hour, every minute of his life.  So you'll add something to this. You don't have but one blank, so you'll have to take these numbers.   And if you're going to follow your oaths as jurors and deal with general damages, you have to add something to his claim there at the bottom number, the five million something has to have something added to it for that amount.  Now, let's look at what money is in our society today.   It's in the newspapers all the time.   Fifty‑three million dollars for a Van Gogh; 82‑and‑a‑half for another Van Gogh.  Somebody bought it.   Mere paint on canvas, oil on canvas, that's what society will pay for paint.     

            And I will suggest to you I will give you some things you might just want to have in mind when you are dealing with this awful, awful responsibility of giving him every penny to which he's entitled.  He, as I showed you, is certainly as equal to the greatest work of the greatest master of all time.   And as much destruction has occurred with that work as would have occurred with the destruction of one of these paintings.   

            So when I talk to you about millions and millions, I'm not making up something fanciful.   I am suggesting to you that your responsibility as jurors requires you to do something no jury before you has ever done; look at this child and place a just and dollar value on the amount of his suffering.   And that is the toughest, toughest thing that you can do.     

            You know, in our society, 31 million dollars was split between Spinks and Tyson for 93 seconds.  Ninety‑three  seconds, they split up 31 million dollars.  Michael Jackson made a deal with Sony where he got a billion dollars.  Oprah signed a contract to continue her show for 500 million.   Larry Johnson signed with the Charlotte Hornets to play basketball for a record 84 million.     

            One Atlanta Journal article says that others have cut basketball deals ranging from 34.8 million to 74.4 million.   The Braves signed on Dave Justice to a five‑year contract for 27‑and‑a‑half million.     

            Reported in the paper, CEO such as Mr. I. O. Riley with Heinz, the ketchup company, made over 75 million dollars in one year as CEO of that company.  And an article on excess pays for CEOs in the United States revealed that Walt Disney's Mr. Isner was overpaid in a three‑year period 358.9 million dollars. 

            One million dollars, this year's Super Bowl ad, for 30 seconds, I'm sure many of you watched it, 30 seconds,   our society invests a million dollars for 30 seconds.    

            So, ladies and gentlemen, I talked to you about those numbers just so that you will know that millions and   millions, large as they are, are not going, are not unheard‑of concepts in our societies.  And I mention that to you because you are going to have to deal with what is just and fair in this case. . . .  

            But let's assume that there's a classified ad in the paper.   And it says, job available.   And let's don't talk about a thousand dollars an hour, even though they recognize that that's fair and appropriate in some circumstances.  Let's talk about, about a hundred dollars an hour, classified ad, Atlanta Constitution, $100 per hour available for special job. No experience required. No special education required.   No special training required.   A hundred dollars an hour.  The only thing is that, if you sign up, you can never resign, and the job is 24 hours a day, 7 days a week for the rest of your life.   A hundred dollars an hour.  And the only other condition is, you can never again use your hands and never again use your feet.  How many in society would apply for such a job?     

            James was not given the option.   You know, that's his job.   He will never experience those thrills, the holding of hands, that first kiss. And I'm going to suggest to you, ladies and gentlemen, if this little fellow, one day when he's 18 years old, and he's getting around the best he can, he runs into a young lady and says, do you like the L. A. Lakers, she says, yeah, I like those Lakers; well, how would you like to fly with me to Los Angeles and watch a Lakers game? I think he ought to have enough money to take her.  I don't ‑‑ I think if he wanted to say to a companion that lived with him that helped wipe his little bottom when he's 25 years old and can't do it himself, he's got to have somebody with him, got to have somebody, they don't provide anybody, but momma and daddy cannot be here forever,   what if momma and daddy were killed in a car wreck? What is to  happen of little James?   Rest on the good graces of the likes of them?   What is his future?     

            You know, in our society, talking about this pain, governments can't even inflict pain.   They can take your life for certain things, but they cannot inflict pain. Pain is life's window into hell.   Rejection is life's window into hell.  Self‑esteem is the only chance he's got.   Sure, he's in the 65 percentile, 65 percentile; well, if he's going to make it, he has to have that ambition, that drive, that struggle that keeps him at those books.  He's got to have it. He can't compete any other way. You remember what [the life care planner] said.  He's got to have the self‑esteem.     

            And [plaintiff's psychologist], you remember his cross‑examination.   [Defense counsel] said, well, we won't talk about that one anymore, put it down, because [plaintiff's psychologist] told him very plainly, there are not any programs that take after this.   And they would have us trust the Republicans on taking care of this child in the future?   I don't think so, ladies and gentlemen.  Or any government, Democrat or Republican, one or the other.  The governments come and go.     

            Now, I figured this up.   Y'all can check my arithmetic if you like.   You are going to have out with you an annuity mortality table. And he is rounded off at two years of age.   That will give you 71.59 years of life expectancy.   That means he's got 26,130.35 days to live.  That means he's got 625,128.4 hours to live. At a thousand dollars an hour, that would be six hundred million 2 dollars.  At a hundred dollars per hour, that is 62 million seven hundred twelve thousand two hundred eighty‑four dollars.  Sixty‑two million is a whopping sum of money.  But I suggest to you, ladies and gentlemen, if you, in your enlightened conscience, look at this child and think about his narcotic addiction and think about somebody having to rub his scars with lanolin or something like that every day the rest of his life and the opportunities he should have, and that classified job that he didn't apply for, I submit to you, the  general damages in this case for past and future is certainly something over, over 60 million dollars, is worth more than one of those paintings.    

            And if you are of the mind that, we don't, we're not going to give that kind of money, then, and you go out and you say that, then you would not be the jurors we knew you to be when we accepted you under your oaths, because you said you would listen to the evidence, didn't have any preconceived notion, any ceilings.     

            And reason among yourselves and come up with what's just and fair.   Nobody will quarrel with you if you do that which you have sworn your oath to do.   Deal with it.                Don't turn away from him anymore.     

            I mean, when you saw the pictures, we know the effect.   Turn away.   You cannot do that.  And I'm going to close with one more little piece of prose, I guess it is, that I think applies directly to your function in this case.   

            There were two little ruffian boys who knew there was a wise man in the town.   And I'm suggesting that you are like the wise man.   And that wise man knew every answer.  He was the collective conscience of the community.   Did right every time.  And these little ruffians caught a little bird that had fallen out of the tree.   And they went for that wise man, and they knew they were going to get him.     

            And they said, wise man, wise man, as wise as you are, tell us, is this little bird alive? Or is this little bird dead?   Wise man, being wise as he was, he knew that if he said the bird was dead, they'd open their hands, and he would fly away. But he knew that if he said the little bird is alive, they would surely crush the very life and every prospect for every tomorrow out of that little bird.     

            Now, I suggest to you, ladies and gentlemen, little James and his future, as difficult as it might sound, is    that little bird.   And you, ladies and gentlemen, in your collective wisdom that only you can employ in our system of justice, are in the position of the wise man.   

            I ask you by your verdict, indeed, to send a message to this family.  Tell them that justice in our society, the expectation of careful health care in our society, fairness, full and just and adequate award, is free and alive, and let him fly to the heights that he can fly, with this as a start, with this as a start.    

            Or if you want to believe Kaiser, crush the life out of him and let him depend on the likes of Kaiser to furnish what the proof is that they furnished.     

            Our system is so wonderful.   There is no substitute for bringing people like you together to rule on matters such as this.   There are those who would take it away from us, say that you're not smart enough, jurors are not smart enough to deal with these issues.    

            But you are certainly smart enough to listen to both sides of this case, decide what is more likely than not, and do the humble and just, honorable and just thing.   

            The family and I, everyone involved anxiously await your verdict, which will surely speak the truth of this case, the truth of the case.     

            We ask for no sympathy. That's been given. Not by Kaiser, but it's been given.  No calls, no cards, no flowers, but we've had enough sympathy.     

            We are here respectfully and, I submit, with all the respect that a family has ever had and a lawyer had ever had, demanding, respectfully, full and complete justice. There is no truer sound, no prettier word than justice when it's done.  

            Thank you."

VIII.   CONCLUSION

            In any summation jurors must be told that they are the final judges of the facts and that no further litigation will be possible based upon any error they might make.  The jurors should be given an answer to prepare them for potential criticism of a finding in favor of the plaintiff, particularly if the amount sought is large.  Their duty is to apply the law to the facts, even if they personally disagree with the result.  Jurors should never be burdened with concern for any personal aftereffect of their verdict.  The jury is, indeed, the collective conscience of the community.

            This jury, serving as the collective conscience of the community roundly condemned managed care and its intrusion into the delivery of healthcare which cost young James Adams his arms and legs. 

When you choose an ABPLA board certified attorney you can rest assured that you have one of the best malpractice lawyers in the country.