Phil Henry Argues Damage Calculation in $36M Med Mal Win

"The law has a measure, and the law has a cap [on pain and suffering]. And that cap is you,"  Philip Henry tells jurors before they hand down a $36 million verdict. 

Arguing pain and suffering damages presents a unique problem to a plaintiffs' attorney: how to measure that amount in a way that resonates with jurors. In a wrongful death, medical malpractice trial, Henry Spiegel Milling's Philip Henry delivered a closing argument that led jurors to return an eight-figure award. Marion v. North Fulton Hospital. 

Sonya Dubose, a 37-year-old mother of seven, died two years after a kidney removal surgery at North Fulton General Hospital, in which Dr. Harry Rutland allegedly botched the procedure by tying off Dubose's aorta rather than the left renal artery that supplied blood to the kidney being removed. Although medical staff discovered the problem days after the surgery, the issue irreversibly damaged DuBose's remaining kidney and paralyzed her legs, among other injuries she suffered before she eventually succumbed. 

In closings at trial against North Fulton Hospital and medical staff that did not include Rutland, Henry reminded jurors of the magnitude of the alleged negligence at issue, and told them their award should reflect the gravity of the harm. “It represents the most overwhelming, comprehensive injuries ever caused to a patient at North Fulton Hospital,” he said. “Your verdict about damages in this case is to meet that type of remarkable, extraordinary event.”

Henry also impressed upon jurors the only cap they were obligated to consider. “That cap is you [the jury],” Henry said. “That is what you and your enlightened conscience find what is full and fair compensation. Fair to both sides. That’s ultimately what we’re all here to ask of you.”

Jurors ultimately returned a $36 million verdict, including $11 million on the wrongful death claim and $25 million on the estate's claim, which included DuBose's pain and suffering. While jurors cleared the individual medical staff at trial, they apportioned 12.5% of fault to the hospital, placing remaining fault at the feet of the non-party physician, Rutland.