Berg v. Footer: A $1.4 Million Cervical-Cancer Verdict That Reshaped D.C. Settlement-Credit Law

Patricia Berg saw her gynecologist, Marvin Footer, M.D., about vaginal bleeding between her menstrual periods. In June 1987 he performed a fractional dilatation and curettage at George Washington University Medical Center to find the cause. He missed it. The precancerous condition that the workup should have caught went undetected, and her cervical cancer was not diagnosed until it had advanced.

Patricia Berg died in June 1990. Her husband, R. Christian Berg, brought a wrongful-death and survival action as her personal representative. He sued Footer, the medical center, and the cytology laboratory that had handled her Pap slides, alleging that their combined failures delayed a diagnosis that could have saved her.

Berg settled with the hospital and with the laboratory, which paid $150,000 while denying any wrongdoing. The case against Footer went to trial. Patrick A. Malone tried it for the family. The jury found that Footer's negligent failure to detect the precancerous condition had caused Patricia Berg's premature death, and it awarded $1,406,071 in damages.

The fight then moved to a question that sounds technical but decided how much the family kept: how a verdict against one defendant should be reduced when other defendants have already paid to settle. The trial court had subtracted both settlements dollar for dollar from the verdict, which shrank what Footer owed.

On March 22, 1996, the District of Columbia Court of Appeals drew a line. A settling party whose liability was never established, like the laboratory, gives the remaining defendant only a pro tanto credit, meaning the actual $150,000 paid. A settling party that has admitted it is a joint tortfeasor, as the medical center had, gives only a pro rata credit, here one half of the balance. The court reversed the dollar-for-dollar credit the trial judge had allowed for the hospital, and it also struck an extra $200,000 the judge had charged against the family.

The decision became a leading District of Columbia authority on how courts split a verdict among settling and nonsettling defendants. After the recalculation, judgment against Footer came to $628,035.50, which the family kept on top of the hospital and laboratory settlements.