Asset protection headlines: Part two

Recent headlines provide specific examples of asset protection and wealth preservation issues for physicians. In part two of our look at current headlines, we examine the details behind a jaw dropping $43.5 million dollar malpractice award.

The $43 million question, how does this happen?

A recent medical malpractice verdict made national headlines and sent shivers down the spines of physicians nationwide, and orthopedic surgeons in particular. Philadelphia Eagles' safety Chris Maragos won $43.5 in a million medical malpractice lawsuit against his treating surgeon and the institution that treated him. As summarized in the New York Post:

Maragos, who was awarded $43.5 million by the jury, sued Dr. James Bradley and Rothman Orthopaedics for medical negligence after the former safety tore his posterior cruciate ligament (PCL) during Philadelphia’s 2017 Super Bowl-winning season.

The 36-year-old claimed doctors missed a torn meniscus and incorrectly said it was stable, which forced Maragos to retire from the NFL after a fruitful career, the Washington Post reported.

Bradley will have to pay Maragos $29.2 million, while Rothman will have to fork up $14.3 million, per the Philadelphia Inquirer.

A perfect storm of several different factors lead the jury to this verdict, all of which we have covered before in detail.

1. Surgery is a High-Risk Specialty. As we’ve previously covered, national data clearly shows which ten specialties are the highest risk for med-mal claims. General surgery is the number one highest risk medical specialty and specialized surgery, like orthopedic surgery is number five.
2. The patient had significant damages. Damages take two forms, economic damages and non-economic damages. In this case the economic damages for a professional athlete are astronomical given the loss of his multi-million-dollar annual salary, his earning potential over the length of his career and the associated value of endorsement deals and etc.that he may have been paid for and that could have been even greater had he been able to play in the 2023 Superbowl with his team. Additional economic damages include the cost of past and future treatment and rehab including multiple corrective surgeries and an inevitable future knee replacement. Non-economic damages typically include pain and suffering and emotional distress, in this case Maragos and his witnesses convincingly testified about the affects on his daily life, his daily pain, the inability to perform basic activities like going for walks and playing with his children and the loss of his career as a professional athlete.
3. Collectible defendants with assumed deep pockets. Orthopedic surgery is the second highest paying medical specialty and regardless of Dr. Bradley’s actual net worth, it islogical to assume that an experienced orthopedic surgeon has significant assets beyond his medical malpractice policy. Likewise The Rothman surgical institute has been in existence for decades and as it website states, “Rothman Orthopaedics… stands today as the largest full-service orthopaedic practice in the world. We have more than 40 offices in four states, offer both surgical and non-operative services, and partner with sports teams at all levels of competition—from high school to professional—to provide treatment both on and off the field”. Sound ‘broke’ to you?
4. Pennsylvania is a high-risk state for medical malpractice claims. As we’ve previously covered in my multi-part series on medical-malpractice, Pennsylvania is a top ten state for medical malpractice claims, with 68% of all physicians facing at least one lawsuit during their career.
5. Celebrity clients require extra caution. I consistently advise doctors that any issue with a high-profile patient like an athlete, entertainer, politician etc. garners an extraordinary amount of scrutinization, second guessing and in many cases, sympathy. I cannot imagine that the ‘hometown football team hero that lost his shot at the Superbowl’ angle was lost on the jurors, regardless of the facts of the underlying claim. In addition to the possibility of bigger economic damages, the negative publicity and reputational damage can be significantly greater than with an ‘average’ patient. This should not discourage you from treating or even seeking out these patients, Rothman’s marketing material on their own website specifically positions the institution as a resource for athletes. It does mean however, that your compliance with best practices and record keeping need to be at their very highest level and that your use of the diagnostic tools at your disposal needs to be above reproach.

Finally, this illustrates the necessity of proactive legal planning that predictably limits access to the bulk of your assets, beyond your insurance coverage.

Attorney Ike Devji has 20 years of legal experience focused exclusively on asset protection, risk management and wealth preservation. He helps protect a national client base with more than $6 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians, a Physicians Practice contributor for over a decade and a frequent national CME presenter. Learn more at www.ProAssetProtection.com.