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In Delivery Room, Baby and Doctor at Risk

It took two trials for Schochor to find the result he was after. The first ended in a mistrial after a juror resisted faulting the doctor. Other jurors reported that the holdout had used racial slurs to describe Dennis. The judge ordered a second trial, and at this one, in 1996, jurors concluded that Kearney had been negligent. Richard, then 8, was awarded $637,372.

Although Dennis was thrilled with the outcome, it did little to resolve her immediate needs. She was working as a cashier. Her then-husband worked in housekeeping at a small hotel.


Kevin Kearney, at his Salisbury office, is giving up obstetrics because the malpractice insurance costs are too high. (James A. Parcell -- The Washington Post)

Ehrlich's Proposal

Maryland Gov. Robert L. Ehrlich Jr. has prepared draft legislation that he says will help resolve the medical malpractice insurance problem. His proposal includes the following provisions:

• It allows insurance companies to pay jury awards in periodic payments over time, rather than in a lump sum.

• It provides that an apology or expression of sympathy from the doctor is inadmissible as evidence of fault.

• It limits attorney's fees to 40 percent of the first $200,000 of any judgment, 33 percent of the next $200,000, 25 percent of the next $200,000 and 15 percent of anything over $600,000.

• It allows the Board of Physicians to take disciplinary action against a doctor based on a preponderance of the evidence, rather than the current burden, which requires clear and convincing evidence of malpractice.

• It requires the parties in a court case to participate in upfront mediation to resolve their dispute before going to trial.

SOURCE: office of Gov. Robert L. Ehrlich Jr.

Money was so tight that the couple went for long periods without a working telephone.

And Dennis had to pay legal bills of $258,000. The remaining $379,000 was placed in a trust, available to Richard when he turns 18.

Walking out of the courtroom, a juror approached Kearney and put her hand on his shoulder. "She said to me, 'Dr. Kearney, don't feel bad. We just felt we had to give something to the baby.' "

Reality Dawns

Kearney did not let the court's ruling disrupt his practice. Over the next several years, in fact, his caseload grew. And so did his legal exposure.

He began doing more Cesarean sections out of an abundance of caution. Still, he was sued six more times, including a second case involving shoulder dystocia, which he settled. By contrast, the average OB-GYN is sued 2.6 times over a career, according to the American College of Obstetricians and Gynecologists. His insurance bills crept up.

Then in December 2003, his carrier wrote to say that the company was getting out of the malpractice insurance business and that he would be dropped.

"I tried everywhere to find new insurance, but they kept giving me these outrageous quotes," Kearney said. One company offered to cover him for $150,000, more than double the region's average rate. Another set the premium at $200,000 "because I had notches in my gun." For six weeks, Kearney tried to resolve this crisis as 150 pregnant patients waited in limbo.

Reluctantly, he dialed each one, arranged to transfer their charts and pledged to track their progress. At 56, he had delivered his last baby.

Though his small gynecological practice will keep him afloat until retirement, he has become bitter. He's taped a bright orange bumper sticker to the front door of his office. It says: "Become a doctor: Support a lawyer."

End of a Tradition

Late in the summer, representatives for the state's doctors, lawyers and insurance carriers gathered with Ehrlich to discuss the malpractice crisis.

Schochor spoke on behalf of the trial bar. "To be out there gunning for victims and the lawyers, it's the wrong focus," he said.

Schochor's position is that limits on jury awards hurt not only lawyers but the victims of malpractice -- people such as Richard Turner, whose family continues to struggle with medical bills. Court records show that Richard's mother, who has remarried and now goes by Donnette Corbin, wrote to the clerk this year to ask a judge's permission to withdraw $10,000 from Richard's account "to pay some bills." Her request was denied.


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