The Ugly Face of Tort Reform: Insurance Company Refuses to Pay Brain Damaged Infant

At long last justice? The Utah Supreme Court, Tuesday, ruled that The Doctors’ Company (TDC), an insurance company based in Napa, Calif., cannot invalidate the medical malpractice policy of an obstetrician who caused permanent brain damage because he pulled too hard with forceps. TDC was seeking a declaratory judgment that Dr. Gregory Drezga’s policy was invalid because he failed to report three previous malpractice claims and did not cooperate in defense of the case. The ruling brings the family of 12 year old Athan Montgomery a "step closer" to Utah’s version of "justice".

Why do I say "version of justice"? Because in 2004, the Supreme Court upheld Utah’s damages cap and the jury’s $1.25 million pain and suffering award (along with a $1,022,735.30 special damage award for past and future medical expenses) was reduced to a state-mandated non-economic cap of $250,000. TDC remains liable for the special damage award, the non-economic cap number, and interest. Thus, the remaining verdict plus 12 years of interest could exceed $2 million, but far less than it will cost to care for Athan and far less than the jury intended. TDC will also be responsible for attorney fees. But, is this enough justice?

The good doctor disappeared after the lawsuit was filed and has not been seen or heard from since. As a result, TDC has sought, for 12 long years, excuse from defending the doctor or paying any judgment on his behalf due to his non-cooperation in the subject litigation.

I applaud attorneys David Biggs, James McConkie, and Bradley Parker, who fought for justice for this child and his family. David said:

"We are pleased beyond measure that finally, this young child, now a young man, might be compensated for the medical malpractice that took place so many years ago."

Athan suffers from cognitive disability and slight paralysis on his left side because of the forceps injury and a subsequent Caesarean section. In their ruling, the court noted that TDC cancelled Drezga’s policy in 2000, after the incident. Thus, they said, the cancelation only affected future cases. The justices also cited "extraordinary circumstances" in the case, and ordered TDC to pay the fees for an attorney who represented the absent doctor and argued for application and enforcement of the policy.

Serious brain injuries have lifelong expensive consequences. Attempts to cap serious lawsuits by using terms life "junk", frivolous" and "abuse" when seeking "tort reform" do all citizens of our country an injustice. The taxpayers will be required to foot the bill for the responsible doctor and the private insurance company that profited from the premiums and accepted the risk. Hopefully, Athan Montgomery’s quest for justice will soon be over. Lawsuit Financial congratulates Athan, his family, and the fine attorneys who have represented his interests for all of these years. This pro-justice lawsuit funding company implores all who read this to turn away from the rhetoric of the U.S Chamber and the Insurance lobby. Look at the story of Athan Montgomery and say "no" to the tort reformers; the Athan Montgomery story is a story of the real consequence of tort reform. We wish Athan and his family well and hope they find some measure of future peace.