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S.D. Doctor Ordered to Pay $4 Million to Quadriplegic : Courts: The judgment on behalf of the brain-damaged boy could grow to be one of the state's largest.

November 27, 1991|ALAN ABRAHAMSON | TIMES STAFF WRITER

SAN DIEGO — A 13-year-old Southeast San Diego boy left a quadriplegic at birth has won a nearly $4-million court judgment against the doctor who delivered him, an award that could grow into more than $31 million, one of the largest medical malpractice verdicts in California history.

A San Diego Superior Court jury returned the $3.9-million verdict Monday in favor of Terry Battle, who cannot talk, wears diapers and depends on his mother for full-time care.

The panel found that obstetrician Phillip Rand had been negligent in the boy's birth and ordered Rand to pay the entire sum, which is due to grow to $31 million over Battle's life expectancy of 50 more years.

Rand, however, carries no insurance, and, though Terry Battle's parents expressed joy Tuesday over the verdict, the family's attorney said his gratitude to the jury is tempered by the practical obstacles that lie ahead in collecting any cash.

Precisely because of huge jury awards, it is not unusual for obstetricians--those doctors who specialize in the care and treatment of women during pregnancy and childbirth--to go without insurance, either because premiums are too high or as a tactic to dampen victims' enthusiasm for lawsuits that offer potentially huge recoveries, lawyers said.

Still, Battle's mother, Pamela Battle, said, "I feel justified." Referring to Rand, she added, "We finally got him after 13 years."

Lawyer Mitchel J. Olson said he was cautiously optimistic that the family would see at least part of the $31 million. "Having delivered 33,000 babies and working six days a week out of four clinics, I think (Rand) has assets," which could be seized and sold to pay off the verdict, Olson said.

Rand did not return a phone call Tuesday. His attorney, Richard Barton, said he intends to ask for a new trial or file an appeal to reduce or overturn the award. As a result, it could be months or years before Terry Battle sees any of the money.

"We're obviously very disappointed in the result and don't feel the process is over yet," Barton said.

Medical malpractice cases often produce million-dollar verdicts, as juries try to compensate the victims of catastrophic accidents. But lawyers familiar with that legal specialty said Tuesday that they could not recall a larger potential medical malpractice award in a San Diego court.

Attorneys also cautioned that huge jury awards can be confusing and misleading, because the awards can turn out to be worth either much more--or far less.

The value of an award depends on its present or future value, lawyers said. Future values account for investment and for inflation, and swell a jury's original award to many times the original figure.

But, often, the huge original award is itself reduced by a judge who considers it extravagant. Or the lawyers in a case agree to slash it as part of a deal to end appeals to higher courts, attorneys said.

The $31-million San Diego award is the total Terry Battle will receive if he lives the 50 more years he's expected to live, Olson said. If the case were settled now, without any appeals, the value of that $31 million is $3.9 million, Olson and Barton said.

"It all depends on how the numbers are utilized," said medical malpractice specialist Bruce Fagel, a Beverly Hills lawyer who won a $21-million award from three physicians on behalf of a brain-damaged baby in Los Angeles Superior Court in July.

That verdict is widely considered to be the state's biggest medical malpractice judgment, because it is designed to grow to a whopping $460 million over the life of Ashley Hughes, 4, of Pomona, who is totally paralyzed and breathes only with a ventilator. The money stops, however, if she dies.

"What's important," Fagel said Tuesday, "is what these cases settle for, which nobody ever knows," because the settlements are almost always kept secret.

Olson, who is both a doctor and a lawyer, said the significance of the size of the San Diego verdict is that it should remind doctors of the awesome power they wield.

"It sounds kind of corny, but it's true, that obstetricians stand at the threshold of life, and they have the well-being of unborn babies in their hands," Olson said. In this case, he said, "Dr. Rand basically rolled the dice, and Terry Battle lost."

The jury issued the $31-million award after finding that Rand had been negligent, Olson said. Rand was Pamela Battle's doctor before and during Terry's birth, Olson said. On April 28, 1978, when she went into labor, she called Rand and reported she was bleeding, Olson said. Rand told her to go back to bed, Olson said.

She disregarded that advice and went to Sharp Memorial Hospital, where there was evidence the baby was not getting enough oxygen, Olson said.

Testimony at the trial indicated that Rand could not be located initially, so another obstetrician checked Pamela Battle and recommended an emergency Cesarean section, meaning surgery to deliver the baby, Olson said.

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