James Geagan Chosen "Litigator of the Month"

The National Law Journal

selected Compassion in Dying co-operating attorney James Geagan of the Novato, California firm Brayton-Purcell as "Litigator of the Month." In its award, the Journal recognized the extraordinary vision and persistence required to bring the Bergman case to trial. Attorneys James Geagan, Clayton Kent and Kathryn Tucker found the case foreclosed under ordinary malpractice law, because claims for pain and suffering do not survive the life of the patient in California. Forced to proceed under the state's elder abuse statute, the attorneys bore a heavy burden of proving "reckless neglect" instead of simple negligence.

The Journal profiled Geagan within weeks of the historic verdict. "What the family was really concerned about was not only that their father was in pain but that "...he really did not die in dignity," Geagan reported. "It clearly involves suffering, unnecessary suffering, and it's an elderly person. If you read the California elder abuse statutes, those are the three motifs."

The jury of six men and six women voted nine to three to reach a verdict, agreeing the physician's conduct constituted recklessness. They deadlocked on the question of whether he acted with malice or oppression of an elderly person. Therefore, punitive damages that would have attached to malicious or oppressive conduct did not apply.

"The timing was right for a win," said Clayton Kent. "I think finally that society is at a point where doctors are no longer treated by the public as if they can do no wrong."