THE WHEELS OF JUSTICE GROUND VERY SLOWLY IN MALPRACTICE CASE

June 1, 2012

This is the kind of story you don’t hear very often and the kind of story you hope you never hear about an Oregon hospital patient. The plaintiff lived on “the other coast,” and he needed surgery on his left knee. The operation lasted 10 hours. Just 16 years later, his negligence claim against the two anesthesiologists would finally be resolved.

During a long surgery like that, it’s important to pay attention to the resting, or non-operative leg. The two anesthesiologists in the plaintiff’s surgery did not. They failed to move the leg from suspension, and after the surgery was over the plaintiff had pain, burning and numbness in his right leg. The nerve condition, reflex sympathetic dystrophy, is both chronic and permanent.

He filed a negligence claim against the surgeon and the anesthesiologists, and a jury trial followed. Although the jury found in the plaintiff’s favor and awarded damages for pain and suffering, the anesthesiologists appealed on procedural grounds. The appellate court agreed and ordered a new trial.

The second trial was almost over, with the jury deliberating, when the plaintiff’s attorney approached defense counsel. The parties agreed to settle for $150,000.

Settlements don’t just happen on a handshake. If the parties agree, defense counsel must confirm the settlement in open court. Then, the agreement terms must be entered into the official court record.

Before any of that could happen, the jury came back. Their award? $1.45 million for pain and suffering. Plaintiff’s counsel responded immediately with a claim that the formalities of the settlement agreement had not been completed, so the agreement was invalid. The court agreed.

But, once again, the defendants appealed. The appellate court found for the plaintiff. So the defendants took a different approach: They appealed again, but they argued that the jury’s verdict lacked clinical evidence and that the damage award was excessive.

That appeal went to the state’s highest court. Just last month, 16 years after his surgery, the plaintiff received the good news: The verdict will stand.

Source: OutpatientSurgery.net, “$1.45 Million Patient Positioning Award,” Daniel Cook, June 27, 2012

 

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