Court awards case evaluation sanctions of almost $100,000.00 to insurer of doctor
The family of Corey Bates filed suit against Victor Adlai, an anesthesiologist, Sinai Grace Hospital and the DMC, arguing that the Defendants' failure to respond properly to irregularities apparent in the fetal monitor resulted in devastating birth injuries to Corey. Six days into the trial--after Corey's medical experts had testified, hospital authorities produced complete fetal monitor strips for the first time, after responding to numerous discovery requests by denying their existence.
The attorneys for the family objected and asked the Court to default the Hospital for failing to comply with court-ordered discovery. The attorneys told the Court that they wanted to continue the trial against Adlai, however, despite that fact that the family's experts had already testified without the benefit of the late-produced monitor strips. The Court then entered judgment against the hospital and allowed the jury to decide the case against the anesthesiologist. The jury found that Adlai was not negligent.
The Court later had second thoughts about defaulting the hospital and set aside the default judgment. The late-disclosed monitor strips apparently disclosed negligence by hospital employees, however, as the hospital then agreed to pay approximately $850,000.00 to settle Corey's injury claim. In the meantime, Adlai's insurer asked the court to award case evaluation sanctions against Corey, and the Court agreed to sanctions of nearly $100,000.00.
On appeal, the Court upheld the award of sanctions, although none of the three judges could agree on the foundation for affirming the award. Judge Gleicher pointed out that in essence, the family's attorneys had waived their right to object to the award of sanctions by opting to continue the trial against Adlai despite the prejudice the family suffered by the late disclosure of the complete fetal monitoring strips. She noted that when the trial court expressly raised the issue of a re-trial with the family's attorneys, they opted to continue the trial under the belief that a delay would inure to the benefit of Adlai's insurer.
Case evaluation sanctions [in the form of attorneys' fees and costs] are payable when a party rejects a court-sanctioned settlement and do not achieve a result that is at least ten percent better than the recommended outcome. Even though the family ultimately achieved a settlement that was better than the case evaluation recommendation, this did not replace the verdict of "no cause for action" rendered by the jury with respect to Dr. Adlai. As a result, Corey was required to reimburse all of the insurer's expenses incurred after the family rejected the case evaluation recommendation.