Day on Torts
It’s over.
Rebecca Blair and I have been in trial in Columbia, Tennessee since February 25, 2008. Our client was a eleven year-old boy who lost his 34 year-old mother to hyperkalemia (an excessive level of potassium which causes the heart to stop) a little over three years ago.
Ginger was a diabetic who suffered from end-stage renal disease. She had several other health problems (pulmonary hypertension, obesity, sleep apnea, oxygen dependent lung disease, etc.) that resulted in a life expectancy of about 6.8 years. She was determined to be totally disabled two months before her death. Therefore, we were unable to make any claim for economic loss. We elected not to make a claim for funeral expenses or pain and suffering and sought damages for Jessie solely for loss of "love, society and affection" under Jordan v. Baptist Three Rivers Hospital.
To make a very long story short, we alleged that she lost her life because an emergency room doctor, two nurses, an "unknown" hospital employee, and her nephrologist failed to communicate with one another appropriately after Ginger missed a dialysis session because of bleeding around the dialysis catheter. Ginger needed a blood test to ensure that she did not have excessive potassium in her body after missing dialysis. It was ordered in the emergency room at the hospital but the order was never completed and Ginger was sent home without the test. The next morning Ginger’s mother called the nephrologist about the need for Ginger to go for dialysis but the nephrologist (assuming that the potassium had been checked and determined within normal limits the previous day in the ER) said that Ginger could wait until the next day. She died early that evening at home in the presence of her son.
Cause of death was hotly disputed. The nephrologist completed a death certificate saying that Ginger died of excessive potassium and admirably did not deviate from that opinion at trial. The nephrologist’s lawyer, however, called another nephrologist to the stand who testified that the cause of death could not be determined without an autopsy. The ER physician called a cardiologist who testified that the cause of death was respiratory arrest secondary to lung disease and a nephrologist who testified that the cause of death was a pulmonary embolus secondary to superior vena cava syndrome. The ER doctor himself said death was secondary to a pulmonary embolus. We had two physicians – a nephrologist and an ER doctor – who said Ginger died from excessive potassium.
The trial was the equivalent of hand-to-hand combat on a roller-coaster, the most difficult of my career. Without boring you with the details, there were eight lawyers in the courtroom for the defendants and Rebecca and I were there for Ginger and Jessie, ably assisted by Cheryl Terrell (our nurse) and Tracy Conte (our paralegal). There were something like 30 motions in limine argued on February 9 and several more argued during trial. It took an entire day to pick a jury. We won multiple challenges for cause, including the local head of the Chamber of Commerce. At the end of the day we ended up with a jury with no health care providers (although several of the jurors had children working at the hospital) and only a couple of the jurors who had been treated by one of the defendant physicians.
The case was complicated by the fact that we took no depositions of the four adverse witnesses on causation or the other experts who testified solely on standard to care. One adverse expert left the impression in his CV and on direct examination that he was board-certified when in fact it had expired several years earlier; we accessed the Internet in the courtroom to show the jury that both the local hospital and state licensing website erroneously indicated that he was board-certified.
The bottom line: after one and one-half days of deliberations the jury the jury returned a verdict of $1,250,000. The ER doctor was found 14% at fault, the nephrologist 40% at fault, the primary care nurse 1% at fault, and the "unknown" hospital employee who canceled the order for blood work after Ginger left the hospital without the necessary blood test having been run 45% at fault. The triage nurse received 0% fault. We were very pleased by the result.
The fault assigned to "unknown" hospital employee presents an interesting legal issue. The hospital is a government employee; the hospital’s liability is capped under the GTLA. However, it is our position that the unknown employee is a nurse and in a medical malpractice case the cap does not apply if a government-employed nurse or doctor injures a patient. We agreed during the charge conference to let the judge decide on post-trial motions whether the employee was a nurse or non-nurse. We believe the employee was a nurse because the computer records indicate that the lab-work was "canceled by nursing." The hospital says this was a default entry. No one has accepted responsibility for canceling the order and the computer records were over-written five days after the order was canceled.
It is our position that the hospital had a duty to maintain the records so that we could identify the nurse; the record unambiguously supports the conclusion that the hospital was notified of the problem within 24 hours of Ginger’s death and therefore with more than sufficient time to preserve the data. Thus , we will be arguing that the deletion of the data deprived us of the opportunity to sue the nurse individually and the hospital should be held liable for the liable for all fault apportioned to it, notwithstanding the fact that it exceeds the damages cap under the GTLA.
So, in one way this matter is far from over. On the other hand, the break-neck pace of the last 4 weeks will slow considerably.
You must know that this case was prepared by Rebecca Blair, who also put on our entire case-in-chief. She did an excellent job. Brandon Bass took a considerable number of depositions in the case and helped on legal issues. Laura Bishop helped on legal issues and both she and Ken Sanney made presentations to a focus group on behalf of two of the defendants. The entire office worked very hard on this case and the efforts paid off for our client.