If it seems that plaintiffs are seeking more and more in damages in medical liability lawsuits, they probably are. The big dollar damage figures contained in the plaintiff’s initial court paperwork are called the “ad damnum” clause, from the Latin meaning literally “to the damage.” These sometimes shocking figures on the last pages of a complaint are the plaintiff’s notification to the defendant of the damages being claimed.

Most trial lawyers agree that the total dollar amount used in the ad damnum has little or nothing to do with the actual damages involved in the underlying case. In fact, the courts agree. In Davis v. Browning-Ferris Industries, Inc., (898 F.2d 836 [1990]), the court wrote:

The ad damnum is, blatantly, an opinion of counsel … Indeed, it is even less; it is a mere psychological expression of hope. In addition to the opinion rule, it could well be said to violate [the Federal Rules of Civil Procedure] 11, as not being “well grounded in fact.”

An anchor not linked to reality
The amount cited in the ad damnum clause is very rarely the actual amount recovered in settlement or at the end of trial. Plaintiff’s lawyers frequently pick a number that exceeds the actual amount of expenses incurred by the plaintiff. If the number is too small, a jury award over that amount would require a motion, which may or may not be granted by the judge, to file an amended complaint to raise the ad damnum to match the jury award. If the motion is denied, the plaintiff’s award would be limited to the amount of the ad damnum—and subject the attorney to his/her own malpractice claim. You can be sure the ad damnum clause would be appropriately set on that legal malpractice lawsuit!

Research suggests that jurors look for “anchors” to determine how much to award in damages. The most frequently used anchor—and often the only dollar amount given to the jury—is the ad damnum clause. For this reason, many states are moving away from using ad damnum clauses.

According to one tort reform theory, large ad damnum clauses stir up publicity through newspapers and television, which in turn encourages large jury awards. Several states—including Maryland, Maine, West Virginia, and Colorado—have passed legislation to eliminate any statement of monetary damages in the pleadings. Approximately 35 states, including Illinois, Texas, Wisconsin, and Virginia, prevent large medical liability awards through legislative caps on the amount of noneconomic damages. Plaintiff’s lawyers are actively testing the constitutionality of medical liability caps in many of these states.

What’s ahead?
With a new administration and a markedly different Congress taking office this month, the future shape of tort reform is unclear. In the interim, however, big jury awards, such as the following, are likely to continue:

• The recent $8.2 million award against an Indiana podiatrist for failure to timely diagnose and treat cancer in the toe of a 33-year old mother of two. The award will be subject to Indiana’s $250,000 liability cap.
• The $5.8 million jury award against a Maryland physician for failure to diagnose and treat a 47-year-old lawyer’s cancerous mole.
• The $17 million jury award to a woman whose pancreas and bladder were damaged by a New York obstetrician during a Caesarean section.
• The $9.8 million jury award against a Kentucky doctor and hospital for improper connection of hoses during a routine heart surgery.
• An $8.5 million jury award to the widow of a man who died on the day his surgeon was going to discharge him from the hospital. California’s malpractice cap will likely reduce the award to $1.6 million.

Melissa Young is AAOS assistant general counsel. She can be reached at young@aaos.org

Editor’s note: Articles labeled Orthopaedic Risk Manager are presented by the AAOS Medical Liability Committee under the direction of contributing editor Douglas W. Lundy, MD. E-mail your comments to feedback-orm@aaos.org or contact this issue’s contributor directly.