It's Unusual, But Family Picks Change Over Money

By Paul Schwartzman
Washington Post Staff Writer
Saturday, March 10, 2007

When a government failure leads to injury or death, there is no shortage of lawyers willing to seek millions of dollars in damages on behalf of the victims or their survivors.

The family of David E. Rosenbaum, the slain New York Times reporter, took a different tack, setting aside a $20 million lawsuit in favor of a promise from the District to repair its emergency services agency.

Although the family has not dropped its claim against Howard University Hospital, the Rosenbaums' decision to seek a cure for society over personal enrichment is a tactic that is very rare, though not without precedent, lawyers and judges said.

Gregory Mize, a retired D.C. Superior Court judge who heard hundreds of civil suits in his career, said he could not recall presiding over a case in which a plaintiff had not sought monetary damages.

"It flies in the face of convention," said Mize, a judicial fellow with the National Center for State Courts. "Our legal culture thinks in terms of personal injuries -- you can't roll back the tape and make an injury go away. Money is the best way we have in the justice system to compensate people."

Mize called the Rosenbaums' decision "remarkable."

Peter Grenier, a personal injury lawyer who has won millions of dollars for clients suing governments, including the District, said he has never brought a case against an agency that did not involve a monetary claim.

His clients have included the family of Eric Butera, a District police informant who was killed in 1997 while buying drugs undercover. Butera's mother, Terry, won about $1.3 million.

The threat of financial loss, Grenier said, can force government reform. "Until their governmental feet are held to the fire where they face serious monetary liability, they're going to be generally very sluggish about bringing about change," he said.

In the case of the Rosenbaums, Grenier lauded the family "for doing something for the greater good." But he said he remains skeptical that the District government "will meet its obligation."

"I hope they prove me wrong, but in my experience, the District of Columbia is beyond embarrassment," he said. "It amazes me."

Rosenbaum, 63, was killed 14 months ago after robbers beat him over the head with a metal pipe near his Northwest Washington home. When D.C. firefighters and emergency service workers found him, they mistakenly treated him as a drunk, failing to recognize his head wound.

A D.C. inspector general's report later blamed firefighters, emergency workers, police and hospital personnel for an "unacceptable chain of failure" and demanded improved training, communication and supervision.

Rosenbaum's family, according to legal experts, had the potential to win millions of dollars if it had pursued a negligence case. Under the terms of the settlement with the city, the city will establish a task force to examine the agency. A family member will sit on the panel.

In a telephone interview, Marcus Rosenbaum, the slain journalist's brother, said the family has never been interested in monetary damages as an end in itself.

"When you lose your brother, you don't see dollar signs and say, 'Oh boy I can really cash in on this,' " he said. "To me, the important thing was safety, changing the way things work in this city. I live here, and I want everyone in the city to feel safe."

However, Rosenbaum pointed out that, as part of the agreement, the family could reinstate the lawsuit at any time during the next year if it does not believe the District is making sufficient changes.

The family's claim against Howard University Hospital alleges that Rosenbaum waited for more than 90 minutes before he was seen by a hospital physician and nearly four hours before receiving a neurological examination.

The Rosenbaums are not the first to seek reform instead of financial gain.

In 1995, Bettina Pruckmayr, a 26-year-old human rights lawyer, was stabbed to death by Leo Gonzales Wright, a convicted murderer out on parole. Instead of seeking monetary damages, Pruckmayr's parents filed a lawsuit demanding an investigation into why Wright had been paroled and into the failures of the agencies charged with monitoring him.

Less than a year later, the D.C. inspector general issued a 47-page report contending that Pruckmayr would not have died if the city's criminal justice system had performed its job.

Scott Flicker, the attorney who represented Pruckmayr's parents, said the Pruckmayrs never expressed interest in a monetary settlement while filing their lawsuit.

Although he said he never discussed their motivation with them, Flicker said he suspects that the couple "didn't want it to be characterized as being about money. Someone can always question the motives of someone who's trying to make change if there's money at the end of the road," he said.