In mid-June a Lee County jury awarded nearly $10 million to a Ft. Meyers woman in a failure to diagnose allegation case in which the trial lasted two weeks. Dr. Kenneth Berdick, an internal medicine doctor in Ft. Meyers, had no professional liability insurance coverage and has had to incur the expense of his defense, and will bear the costs of the long appeal process.
The case revolves around Dr. Berdick failing to diagnose rectal cancer for five years after the patients first symptoms. He subsequently referred his long time patient to a specialist, who did make the correct diagnosis. The cancer now has spread to the patients lungs and liver and is considered to be fatal. The patient is a 43 year old mother of three young children.
The plaintiff attorneys, Craig Stevens and Joe Linnehan of Morgan and Morgan, have said that they intend to pursue the doctors personal assets which they believe are ample and collectable.
Dr. Berdick was represented at this two week trial by defense counsel and put forth a defense that included expert testimony on causation and the standard of care. According to industry expert sources the cost of defending this case through a two week trial probably cost the physician a minimum of $100,000.
The appeal process expenses are estimated to conservatively be around $300,000. In order for Dr. Berdick to appeal the plaintiffs verdict, he will have to purchase the transcript of the trial, which will cost about $10,000. The attorney fees for post trial motions and prosecuting the appeal could be anywhere from $10,000 if he uses the lawyer that defended him in the trial or $25,000 if he uses an appellate attorney. In order to protect himself from execution of the judgment during the appeal, he will have to bond off the judgment. That assumes that the doctor can find a bonding company willing to help him. According to experts, the problem is that the bonding company is going to want Dr. Berdick to have liquid assets sufficient to satisfy the judgment of $9.7 million plus two years of interest at 12% per annum, or another $2.3 million, for a total of $12 million. Those assets must be completely unencumbered and pledged for a minimum of two years to secure the bond. If he doesnt have $12 million in liquid assets that are completely unencumbered and that can be pledged for a minimum of two years, no one will sell him a bond at any price. If the asset requirements are met, the bonding company could charge up to 2% of $12 million or $240,000 for the bond alone. The estimated total cost of the initial trial of $100,000 plus $300,000 roughly for the appeal means Dr. Berdick will be out an estimated $400,000 even before paying anything towards the $9.7 million judgment or the $250,000 that state law requires the doctor pay within thirty days of a judgment to keep his medical license.
This case will be watched closely by the five thousand uninsured doctors in Florida. For an internist in Ft. Meyers coverage costs between $14,000 to $17,000 per year. Even if he had chosen limits of $250,000 / $750,000 most coverage would have picked up all of the legal expenses, including the appeal costs. Excess limits verdicts like this one often then result in a bad faith claim against the doctors insurer, in which the insurer often is forced to pay much if not all of the doctors liability over and above the doctors chosen limits. Florida has the toughest bad faith laws against insurers, which is one reason insurance rates in Florida are so much higher than those in other states.
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