ORTHO FOLLY AND THE GENERAL PRACTITIONER
How to appeal a jury award
Goldie was seven years old in 1977 when she first visited Dr. Jamie. Her last visit with him was in 1983. Initially Goldie had a significant "overbite". Jamie first tried to correct it by extraction of 16 primary teeth and later six permanent teeth. Then Goldie had full orthodontic banding and wore headgear. According to Goldie the treatment was unsuccessful. As a teenager she was ridiculed at school. Goldie spent five of her teenage years avoiding social contact. When Goldie turned 18, she left home and started to work. She consulted an orthodontist who told her she could have the problem properly corrected. Goldie was relieved!
From the age of 18 until age 22, Goldie underwent corrective treatment. Her upper and lower dentitions were totally banded again. For another two years she underwent the next stage of treatment, total orthognathic surgery involving the advancement of her lower jaw and chin reduction. Although no longer embarrassed by her appearance, she was advised that her problems were not over. She would need to have bridge and crown work in future, and she might benefit from further chin reduction surgery.
Goldie decided to sue Jamie. A judge and jury tried the case. Goldie alleged that Jamie was negligent in that he compromised her adult dentition by needlessly removing a number of her teeth. The jury was asked to assess only Goldie’s pain and suffering. Since all other claims for compensation were settled prior to the trial.
The jury was very sympathetic to Goldie’s story. They awarded her $100,000, which included compensation for all consequences of her 22 extractions including:
- pain and suffering associated with the extraction procedures, which involved two weeks of discomfort in the case of removal of the adult teeth;
- resulting accentuation of the chin;
- the corrective orthodontic treatment resulting in the need to wear braces a second time between the ages of 18 and 22;
- the jaw and chin surgery, which involved an infection, five days in hospital and a one-month recovery period;
- the 'retainers' which she had to wear thereafter between her teeth, and was wearing at time of trial;
- the bridge and crown work which had yet to be done
- possible further surgery on the chin; and
- the continuing sensations reported by her of tingling and cold in parts of the mouth and 'clicking' of the jaw.
The jury accepted the opinions of the plaintiff's expert witnesses. They found Jamie negligent.
Jamie instructed his lawyer to appeal the jury award for pain and suffering (non-pecuniary damages.)
Review of a jury award - The applicable test: Was the award "inordinately high" as to be "wholly out of proportion to the circumstances of the case?”
During the appeal Dr. Jamie’s lawyer, Able cited three cases involving claims by plaintiff’s who suffered jaw and other injuries in motor vehicle accidents to support a reduction in Goldie’s award for non-pecuniary damages.
Case # 1. In December 1986, a plaintiff suffered injuries to both knees, the left elbow, back and neck, cuts to the face and a fractured jaw. She was hospitalized for five days, and had her jaw 'wired' for 3 months. She was left with a temporal mandibular joint dysfunction and wore a jaw splint. She had root canal treatment and was left with misalignment of the lower front teeth. She was awarded 'non-pecuniary' damages of $33,000.
Case #2. In July 1988, a plaintiff suffered two fractures of the jaw in addition to other injuries including broken clavicle, cracked shoulder blade, and cracked pelvis and right knee injury requiring surgery. She spent a week in hospital. The jaw fractures required that her mouth be wired shut for six weeks, and her convalescence took five months. She then required braces, further surgery involving cutting and realigning the jaw, and another period of convalescence during which her mouth was again wired closed. She had to wear braces for some considerable time, and thereafter had to have retainers. She was awarded non-pecuniary damages of $45,000.
These two cases, counsel Able submitted might be regarded, from some points of view, as somewhat 'worse' cases than Goldie’s.
Case # 3. A plaintiff suffered injuries including a fractured jaw, which required wiring, as well as surgery to the temporal mandibular joints and procedures to correct her malocclusion. Her dental treatment was on going at the time of trial. It would likely continue indefinitely into the future. The judge awarded $37,500 in 'non-pecuniary' damages to this plaintiff.
At the appeal Goldie’s lawyer did not provide case law to rebut Jamie’s cases. He frankly conceded that Goldie’s award was one which could properly have been regarded as excessive had it been made by a judge alone; however he argued that the three cases argued by Able were dated and should be adjusted upwards to account for intervening inflation.
Judge Fair deliberated. He applied the applicable test to review jury awards. He found Goldie’s damages award excessive.
Judge Fair wrote in his appeal decision that if a simple comparison of the extent of the injury Goldie suffered, the treatment she underwent and her prognosis for the future, the award appeared to be at least twice the amount which would normally be regarded as appropriate.
He added that Goldie’s case had special facts and stated:
“In my view important facts present in this case distinguishes the suffering involved from that which normally occurs in the more familiar cases of accident trauma. Here the victim- Goldie was delayed in obtaining treatment because she did not realize that the professional person to whose care she had been committed had in fact been worsening, rather than curing, her condition. Here the damage did not occur all at the one moment, but over a protracted period of time. It continued untreated during her adolescence, at a time when any disability, which affects the victim’s appearance, can be particularly distressing. He concluded: “We may, I think, properly take this into account in arriving at an appropriate award.”
Judge Fair referred to the jury who had the advantage of evaluating Goldie’s testimony and credibility. He concluded that the jury plainly regarded Goldie’s injury as particularly severe.
He allowed Jamie’s appeal and concluded that an appropriate 'non-pecuniary' damage award in the present case would be $60,000.
J.W. synopsis of a reported case. |
