Malpractice suits push two lawyers to the top

“There’s an arrogance to assign an arbitrary value on a case without facts or evidence,” Adam Malone said. “It takes away citizens’ voice.”

By “citizens,” he means jurors, whom the Malones have a knack of convincing.

Tommy Malone is considered by many to be the state’s best medical malpractice lawyer. His reputation is such that he usually gets a first look at some of the most grievous medical mishaps, taking maybe 25 cases a year worth his small firm’s time and expense. At 6-foot-4, 270 pounds, he is a gregarious sort who with his suspenders, shock of white hair and florid face looks like he could hold sway in an old Georgia courthouse. Son Adam, on the other hand, looks like he’s on loan from the cast of “L.A. Law.”

Both are tough, as doctors who have endured their cross-examinations can attest. Tommy, 67, rode broncos in a rodeo in his native Albany and was a pool hall gambler. A couple of years ago, Adam, 37, fought at Wild Bill’s, the Duluth honky-tonk, in a Muay Thai bout, which mixes boxing with kicking, elbowing and kneeing. He lost, but it was close.

The Malones relish a good fight, whether in a courtroom or the court of public opinion.

‘Socialized justice’

“Tort reform is socialized justice,” said Adam Malone, smiling at his contention, knowing that tort-reforming Republican legislators recoil from anything “socialized.”

Adam Malone was a front man in the effort to overturn the law, which supporters argued would limit soaring malpractice insurance premiums and head off frivolous suits.

Dr. Stanley Mogelnicki, an anesthesiologist at St. Joseph’s Hospital of Atlanta and an old poker buddy of Tommy’s, expects his malpractice insurance rates to rise now that the cap has been overturned.

“I’m getting squeezed,” he said, complaining that patients and their attorneys use lawsuits as a “medical lottery.” Sometimes bad things happen that are nobody’s fault, he said.

The Malones argue damage limits are unfair. Tommy Malone produces a photo of a teacher suing an Atlanta health care provider for the loss of both arms. “If the law stood, then each arm is worth no more than $175,000,” he said.

It’s a point aimed at the gut. Malone is quick to say they don’t win their cases merely on emotional arguments, as critics claim. But they don’t back away from them. “If we have a talent,” he said, “it’s to reduce things to their essence.”

Tommy Malone got his plain-speaking courtroom style from pool hustlers, bronco busters and his father, Rosser, a solicitor and judge in Albany. His politician father was not keen on Tommy going into plaintiff’s work, uncomfortable with his son attacking the local power elite.

In 1969, Malone said, he got schooled in small-town justice when he tried the case of a 15-year-old girl administered a sulfa drug even though the doctor knew she was allergic. She became paralyzed and covered with so many blisters she looked like a “peeled tomato.”

Prominent people came to court to show support for the doctor. The physician won but a juror told Malone: “You would have won if it was tried anywhere but Albany.”

Malone realized a local jury would have less of a problem finding against the drug company in the case. He reached out to famed San Francisco lawyer Melvin Belli, tagged the “King of Torts” by Life magazine, who helped him win the case. Malone had a new career path and mentor.

Still, the road was not easy. Early on, victories were few, damages a pittance. In the 1970s, he tried a case against a South Georgia hospital that sent a man having a heart attack home, where he died. The “award” was $3,750.

“That was full value for a man’s life,” Malone said.

An ‘intimidating’ presence

A plaintiff’s lawyer is a gambler: He lives off winnings and must foot the bill to wage the case. Intensive pretrial prep can run cost hundreds of thousands of dollars. As he got started, Tommy Malone survived on credit lines, once selling his station wagon to make payroll.

Picking the right cases was key. “He has a good insight into a case, a good common sense of right and wrong and when an error is made,” said Dr. Mogelnicki. “His presence is overwhelming. And he can turn on his Southern boy charm. Doctors don’t like him. He can be intimidating.”

Malone was dining at a restaurant recently when a man approached to say hi. There was a cordial exchange, then an awkward moment before he left. The visitor was Ted Pound, an attorney. Outside, Pound smiled and ruefully said, “He has my head mounted in his office.”

Pound defended Kaiser Foundation Health Plan of Georgia in 1995 when Malone won a $45 million judgment in Fulton County. He also was on the losing side in a 1999 case with a $25 million verdict.

The 1995 case involved an infant who suffered quadruple amputations. It was a negligence case alleging an HMO nurse advised the mother of the feverish boy to go to a hospital 42 miles from the family’s home, a delay that led to cardiac and respiratory arrest.

In cross-examination, Malone noted that a doctor testifying for the defense was a conscientious objector during Vietnam. “When your country needed you, you dodged service,” Malone told the witness, who became visibly irate, Malone recalled. In closing arguments, Pound called the tactic “a low moment in my legal career.”

In his closing, Malone mentioned a Van Gogh painting that had sold for $53 million. “Mere paint on canvas,” he said. His client was “a precious child, one of the greatest works of the greatest master of all time.” It’s an argument he’s made in other cases.

“If you find a way of getting intangibles to a jury, when you find something that works, you’ll use it,” he said. “I use those devices, those vehicles, to cause people to start thinking. My charge is to get jurors to know that person. If they know them, they’ll love them.”

Medical malpractice law “is a brutal way to make a living,” Pound said. “I admire him for his longevity in an extremely rough line of work.” Former Gov. Roy Barnes, a top-notch trial lawyer himself, is unambiguous in ranking Malone: “The best I’ve ever seen.”

“Tommy Malone knows more medicine than most doctors,” said Barnes, who has faced Malone several times. “I’ve seen him tear doctors apart. He pushes the weakest part until they finally say, ‘You’re right.’ ”

Malone’s fee is 40 percent of gross recovery. He figures more than 90 percent of his clients get money, and they win about 50 percent of the cases that go to trial. His reputation and ability to pick winnable cases have enhanced his win-loss record.

“I have house odds now,” Malone said.

Like father, like son

Adam Malone, who grew up in Albany, always knew he’d be a lawyer, like dad. “He’s always been my hero,” he said.

At third-grade career day, someone asked if students knew what a lawyer did. “He sues people when doctors make mistakes,” Adam replied.

An undistinguished student at North Georgia Military College, he took a year off after graduation to “grow up.” Living without a car in Helen, he waited tables, worked at a park, was a motel clerk and night auditor. Later, he attended John Marshall Law School at night.

“I had never given 100 percent of myself to anything,” he said. “It was important to pay my own way through law school.”

He finished first in his class, but knows his DNA got him in the door to a successful firm. “I’ve been given a good name; I can’t screw that up,” he said. “I have to earn respect. What I lack in experience, I make up in preparation. The way to win is to outwork them.”

His biggest victory — a $24.5 million verdict for a 14-year-old athlete who lost a leg, later settled for an undisclosed sum — was Adam’s doing, with a dose of dad’s advice. Tommy likes to give juries a narrative. “I told him he should try that case as a death case — the death of a leg,” he recalled. Adam did and won big.

“It was great for me to see my son go down to Albany where I lost so often and win,” Tommy Malone said. “It was great for my boy to go back home and get full measure of justice for an African-American when I couldn’t get one on a jury, much less win a case for them.”