Network Firm News

Monday, May 15, 2006

Thirty days before trial, John Fitzpatrick of our Virginia member firm, LeClair Ryan [& Fitzpatrick soon] got the call. An orthopaedic surgeon had done back surgery on a 60 yr old male in December, 2000 fusing four levels in the lumbar spine using rods, plates and screws.

Within a month, collapse occurred at the level above the fusion because of a prior surgery. The patient was taken back to surgery and six additional levels were fused.

That evening a nurse noted that the patient was alert but couldn't move his legs. He appeared paralyzed. Fitzpatrick’s client doctor didn’t review the nursing notes but argued that the patient "couldn't have been alert" after 14 hours of surgery. So he testified that the nurse was wrong in her assessment.

For the next 12 hours, Fitzpatrick’s client doctor did nothing further on the case, and he went home to sleep. He testified that even if the patient had been alert and unable to move his legs, it would've been a red flag for possible paralysis requiring an immediate CT scan or MRI.

The next morning, Fitzpatrick’s client doctor realized that the patient was not moving his legs. However, rather than order a STAT CT scan or MRI, he wrote the order and went back to his office to see patients all day. He returned to the hospital late that evening to take his patient back to surgery.

In that surgery, the doctor discovered a hematoma compressing the spinal cord thereby causing the paralysis. The hematoma was removed but the patient remained paralyzed.

Plaintiff argued that if the patient had been taken back to surgery that evening, he would not have been paralyzed.

The doctor had $3 million in professional E&O coverage and his group had an additional $3 million. In addition, the Judge allowed a punitive damage charge to go to the jury – only the second time that's happened to Fitzpatrick in 20 years.

So with a punitive charge, the client doctor’s personal lawyer kept screaming at Fitzpatrick to settle with policy limits and protect his doctor's assests which plaintiffs demanded ($6 million in policy limits).

The case was tried for one week during which time Fitzpatrick destroyed plaintiff's expert on cross examination using prior depositions. Fitzpatrick convinced the jury that the plaintiff could not have been alert immediately following surgery; that when problem was discovered the next morning, the doctor still brought the patient back to surgery within 12 hours (and all the medical literature says that if a patient is taken back within 24 hours there is no affect on the outcome).

The paralysis was an unfortunate complication of surgery that was timely addressed and nothing that the doctor could do was going to change that outcome.

The jury was out one hour (but had lunch during that time) before bringing in a defense verdict.

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