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Mark Mandell Wins $25 Million Negligence Verdict

Trial attorney Mark Mandell obtained the highest negligence verdict in the history of Rhode Island on April 29 with his co-counsel Yvette Boisclair and Zachary Mandell.

The Case:

The two Plaintiffs (husband and wife) sued the Rhode Island Hospital. Due to hospital employee negligence, the husband suffered a severe brain injury that caused permanent disabilities in his motor ability and movement, vision, speech, swallowing, and cognition. The $25,590,019.63 verdict accounted for pain and suffering, past medical expenses, expected future medical expenses, loss of enjoyment of life, and loss of consortium. In addition, the Judge directed interest payments of $5.9 million, bringing the total award to $31.5 million.

The Story:

On August 28, 2009, the Rhode Island Hospital admitted the husband for injuries from a fall. In the next forty hours, hospital employees negligently diagnosed him and failed to offer ordinary care or follow orders. He went from being able to walk and function normally to being unable to speak, take fluid or food by mouth, walk, or respond. At the end of the forty hours, the client’s brain herniated on his brain stem, and the increased intracranial pressure, brain swelling, and herniation caused permanent and irreversible damage to his brain — preventable damage caused by the negligence of the hospital’s employees.

Negligence Details:

  • Three radiologists misread the CT scans, failing to identify evidence of increased intracranial pressure.
  • The first hospitalist didn’t examine the client during the first or third twelve-hour shift, didn’t follow up to ensure the neurosurgeon examined him, and didn’t transfer the client to an intensive care unit, despite his worsening condition.
  • The second hospitalist examined the client but did not provide any treatment for increasing intracranial pressure. The hospitalist found him to be non-responsive and arousable only to painful stimulation. The hospitalist also called the neurosurgeon to examine the client but didn’t follow up when the neurosurgeon failed to answer the request.
  • The first neurosurgeon misdiagnosed his condition as post concussive syndrome and didn’t re-examine him at the hospitalist’s request.
  • The second neurosurgeon failed to examine him until after the brain herniation—forty hours after his admission to the hospital.
  • Two nurses failed to perform neuro checks as ordered or notify doctors of the client’s worsening condition.

As a direct result of the hospital’s negligence, Mark’s client now lacks voluntary muscle control, can’t drive or walk by himself, needs assistance for transfers to the toilet, transportation, or bed, and suffers from spasticity, cognition impairments, a loss of balance, vision, speech, and swallowing. Everything is a struggle, and he suffers emotional suffering and loss of independence with twenty-four hour supervision and little privacy or independence. His wife also lost the consortium of her husband.

The Method:

In the following paragraphs, Mark Mandell explains some of the ways he used case-framing in this case.

Case-framing combines three important, new concepts:

  1. The overall case-frame
  2. The I-just-can’t-get-over (IJCGO) issues, whose collective meaning provide the foundation for identifying the overall case-frame
  3. The echoes we need to create of the IJCGO issues throughout trial

Because of the powerful influence of early-presented evidence, we need to begin our trials with our key IJCGO issue and then immediately address, in the sequence of their power, all of the other IJCGO issues beneficial to our case. This should almost always be done at the beginning of opening statement.

In this case, I asked our trial judge to let me call my first expert witness even before I gave my opening statement. I have never done this before or ever heard of it happening. That expert was a neuro-radiologist from Chicago. His role was to show the jury our client’s profound brain injury on CT scans. The extent and severity of the brain damage was our key IJCGO issue. I was able to present that expert testimony earlier than ever before. Judges tell the jury that what the lawyers say in opening statement is not evidence. In this case, I was able to cite real evidence supporting our key IJCGO issue in my opening.

This was the first time we have ever been confronted by the defense using decision science principles against us. The defense used our day-in-the-life-of film and also went through our life care plan in their opening statement. This is unheard of but very clever. The defense’s goal was to desensitize the jury to our damage proof before we really got a chance to explain it. For example, several jurors cried when the defense lawyer showed the film for the first time. When we showed the film later, it was still powerful, but no one cried.

Each day, we kept turning the defense’s tactics around on them. For example, after the defendant showed large parts of our day-in-the-life film. In its opening, we “framed” the film by describing how it was meant to show how hard our client was working to do his therapy, to practice his speech, to eat by himself, to be normal. In other words, we weren’t looking to get sympathy for our client’s plight. We were attempting to show he hadn’t given up, and that he needed the jury’s help because he couldn’t do it on his own. The frame we present our evidence in is as important as the content of the evidence itself.

In closing argument, I used the bill the hospital foolishly sent to our clients (for the very same admission that caused our client’s severe brain injury) as an “anchor” for our per diem damage argument. The hospital charged $4,000 a day for the room for our client. If the hospital thought that was a fair and reasonable charge, why couldn’t we use the amount as a daily rate for our per diem damage argument to project our noneconomic proof out into the future? “Anchors” are powerful ways to create echoes of our IJCGO issues throughout trial. The IJCGO issue anchored here is the enormity of the daily struggle my client has to live and deal with.

Verdict:

The jury awarded my client $15 million for pain and suffering, $1,247,631.63 for past medical care expenses, $4,342,388 for future medical care and treatment, and $5 million to his wife for loss of consortium, making a total of $25,590,019.63. In addition, the Judge ordered the defendant to pay an interest of $5.9 million, bringing the total award to $31.5 million.

About Mark Mandell:

Mark Mandell is a senior partner at Mandell, Schwartz & Boisclair, Ltd in Providence, Rhode Island. He was the “Lawyer of the year 2014–15, Appellate Practice, Providence” in Best Lawyers in America, as well as the “Lawyer of the Year in Personal Injury Litigation, Providence” in 2013. He also is a member of the elite Inner Circle of Advocates. You can read more about Mark’s extensive accomplishments on his Trial Guides Author page.

Stay Tuned:

Mark Mandell has developed new ways of trying cases, including his unique case-framing method, choice theory, and the need for protection. Learn about case-framing in Mr. Mandell’s new Trial Guides book coming in 2015.

Recommended Books:

Mark recommends Rules of the Road by Rick Friedman and Patrick Malone, as well as Winning Medical Medical Malpractice using Rules of the Road Techniques by Patrick Malone with Rick Friedman. Mark discusses how he applies the Rules of the Road and other methods as part of his upcoming new book on case-framing.

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