Which came first, the $150,000 settlement or the $1 million jury verdict? That question sits at the center of a malpractice case against 2 New York anesthesiologists.
When the malpractice case came to trial, the pair offered a $150,000 settlement. The plaintiff agreed to the $150,000 offer just as the jury was coming back into the courtroom to announce its verdict. What happened next is in dispute: Either the judge or the attorney for the anesthesiologists -- or perhaps both -- dragged their heels and effectively blocked the agreement until after the verdict was read. The jury announced a $1 million verdict and the plaintiff backed off the $150,000 settlement. The agreement was initially approved, but was struck down on appeal.
The malpractice saga began in 1996, when William P. Urban, MD, an orthopedic surgeon, performed a knee surgery with anesthesiologists Spencer Lubino, MD, and Kentaro Horiuchi, MD. The patient, Mahmoud Diarassouba, began experiencing intense pain and swelling in the leg that was not operated on. He was diagnosed with reflex sympathetic dystrophy in the other leg, requiring lifelong injections of pain medications. In a malpractice lawsuit, he alleged the physicians caused the RSD by failing to reposition the non-operative leg during surgery.
Mr. Diarassouba initially won the lawsuit at trial, and the physicians were ordered to pay $1.5 million in damages. But the verdict was overturned on appeal due to improper presentation of evidence to the jury. Dr. Urban settled with the plaintiff for $390,000, leaving the 2 anesthesiologists facing a retrial.
In the second trial, the anesthesiologists' attorney, Barry M. Viuker, offered a $150,000 settlement, but Mr. Diarassouba's attorney, Conrad Johnson, would not go below $205,000. Mr. Viuker says he advised the anesthesiologists' malpractice carrier to meet that figure, but it wouldn't budge. When the jury announced it had a verdict, Mr. Viuker says the relatively quick announcement suggested the verdict would go to the defendants. Mr. Johnson then accepted the $150,000 offer and immediately asked the court to confirm it.
Narratives of what then happened diverge at this point. According to the appeals court decision, Mr. Viuker did not clearly tell the court he agreed to the settlement and even left the room. Mr. Viuker says he asked for Mr. Johnson's agreement and may not have actually stated that he agreed, but that should not have mattered. He says he then left the room to inform the malpractice carrier of the new offer, though he concedes that he did not need approval because the carrier had already agreed to $150,000. The appeals court narrative also noted that the court reporter and the judge resisted recognizing the agreement. The judge insisted on waiting until after the verdict was read, and the appeals court narrative said Mr. Viuker did not protest that decision and left the room again. This behavior suggested he would get a better deal for his clients in the verdict than in the settlement, but Mr. Viuker contended he wanted the settlement and was silent only because the judge had denied Mr. Johnson's request and he decided he could do nothing about it.
The jury's verdict called for $1.4 million in damages against all 3 physicians. Subtracting what the surgeon had already paid in his separate settlement, the 2 anesthesiologists owed a total of more than $1 million -- decidedly higher than the $150,000 they would have paid under the settlement. Mr. Jordan quickly moved to quash the settlement. Mr. Viuker disagreed and the judge decided to enforce the agreement. On appeal, however, the court struck down the settlement, noting Mr. Viuker had not committed himself to it and did not push the judge to approve it before the verdict was announced.
Mr. Viuker says the physicians are appealing the case. He insists he wanted to settle but was stymied by the judge, who resisted Mr. Johnson's pleas for a settlement, and earlier by the malpractice carrier, which had been holding out for $150,000 when the plaintiff had already accepted an amount well below the ultimate verdict. He says settlement talks would not have gone on as long as they did if the carrier had settled the case for $55,000 more. As the case stands now, the carrier will have to pay $850,000 more. Mr. Jordan, the plaintiff's attorney, did not respond to a request for comment.
Leigh Page
