Type Miscast: The Reasoning Behind Jury's $7.5 Million Punitive Award After Tragic Diabetes Misdiagnosis
This week's feature tells the story of a diabetic six-year-old girl who died after her doctor misdiagnosed her disease. A New York jury found the doctor, Arlene Mercado, 100 percent liable for the death. And on top of the $500,000 in damages awarded the girl's mother, the jury hit Mercado with a $7.5 million punitive fee.
The damages were intended as compensation--in this case, $400,000 for the girl's pain and suffering, and $100,000 for the family's future economic loss. The $7.5 million, however, was pure deterrent, a punishment that jurors calibrated in proportion to the outrageousness of the malpractice.
So what did jurors see and hear before deciding to make it that high?
Evidence of a cover-up.
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Certainly, the basic facts of Mercado's misdiagnosis, as we detail in the story, played a part in pushing up the award. According to Mercado's notes, she treated the girl, Claudialee Gomez-Nicanor, as if she had type 2 diabetes--even though type 2 is very rare in children younger than 10.
If a six-year-old has diabetes, one expert testified, there's "99.99 percent" chance it's type 1. And while type 2 damages the body slowly, type 1 can kill a person if not properly treated.
Mercado missed, or misread, the signs, and Claudialee ended up in the hospital with a blood sugar level five times higher than normal. But while the doctor's mistake led to tragedy, nobody has questioned her intent.
Her actions over the next few months, however, were of a different strain.
Mercado admitted in court that, when she learned she was being subpoenaed, she threw away her written notes from Claudialee's visits. Before discarding them, though, she typed up copies for the court. At the bottom of those printed versions, beside her signature, she wrote the date of the corresponding appointment, not the date she actually signed the copy.
These copies served as the only record of Mercado's real-time thought process during Claudialee's treatment.
Judge Darrell Gavrin scolded Mercado for tossing the original notes.
"They should be preserved, and every doctor knows that they must preserve their notes, for six or seven years, even if they're scribble notes and nobody understands what they say except the doctor," Gavrin said at the trial. "And then to type up the report after and have one page, as was argued, and not the rest, that is why I found that punitive damages should be submitted to this jury."
There was a major discrepancy between what the typed notes showed and what Claudialee's mother, Irma Nicanor, said happened. Nicanor said that after her December 12 appointment, Mercado's office scheduled their next meeting for February 23, a month after Claudialee died.
On Mercado's typed notes for the December 12 visit, however, she wrote that she would repeat blood testing within 30 days, which would have been before Claudialee's death.
"The doctor put certain information in the chart to give the appearance that she had made a medical course for Claudialee that, if followed, would've prevented this whole tragic circumstance from occurring," Nicanor's lawyer, Paul Hayt, said.
But Nicanor had kept the appointment card from Mercado's office that confirmed her version of events.
"Had she not had that appointment card," said Hayt, "she would be to blame for her child's death. She would, because she would've been the neglectful mother who did not bring her child to that appointment."
Next Page: Shifting the blame for the appointment card.
During the trial over punitive damages, Hayt went further. He noted that, since her initial deposition, Mercado had changed her statements about who gave Irma the appointment card.
Hayt argued in court:
She identified her 12-year-old nephew as a person who had issued that card, so she went from blaming the mother to now blaming a child, thinking that, "Hey, if I blame a child, who's gonna think that a child did anything wrong? Nothing's gonna happen to this kid, right?" That's a good excuse. Well, that excuse didn't work either. Somewhere along the lines, she realized, "Whoops, better not use that excuse because that doesn't get me out of this mess, shifting the blame to a child. Still, my office, I gotta run it and I have to run it properly." So what did she do? She switched it to some other nephew. She didn't tell us which one, just one of her other nephews, an older nephew, okay; never gave a reason for that, and that says a lot, why she didn't.
Jurors agreed. Nicanor's legal team asked for a $10 million punitive verdict and the jury gave her almost all of it.
As Gavrin noted, "Seven million dollars is not petty cash that anyone has laying around. It's not covered by insurance. It's a paper judgment. There's different ways that you can get some of it, but $7 million, that sends quite a message."
The jury's award is not final. Mercado's lawyers have filed a motion to reduce the punitive verdict, and the judge is contemplating it, perhaps to a sum that Mercado could realistically pay. Hayt tells the Voice that he anticipates a lower final judgement.
Send story tips to the author, Albert Samaha
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