HE’S BACK!

Well, after seven weeks the case finally went to the jury and after  a day and a half of jury deliberations we had a verdict. I’ve neglected this blog due to the trial for too long, but I’m ready to report back to you. Here’s my report.

The verdict wasn’t a bell ringer, but it was unusual in that the injured client was never deposed or in the  courtroom and was seen on only a few minutes of video during trial.

The case involved an elective laser surgery to correct hoarseness in a 53 year old single woman. It was supposed to be a ten minute surgery and she was going too go  back home the same day but there was an airway fire in her throat  during the surgery. She had to be airlifted from a small hospital on the Eastern  side of the state to Seattle where she remained 5.5 months on a ventilator while multiple surgeries to remove burned tube material and scar tissue  were done. From there she transferred to a nursing home in Spokane,  on the Eastern, side of the state where she is today and was almost  two  years later when we started  the trial.

She was ventilator dependent and had a loss of ability to  talk above a low whisper. We sued the hospital,  the  surgeon, the  anesthesiologist and the ETT manufacturer Medtronic. Our claim was that the surgeon missed the target with the laser, hit the cuff on the tube and started a “blow torch fire” in her airway. The surgeon denied hitting the  cuff. He claimed it was a slow leak around the cuff that ignited which wasn’t his fault. Our claim was  the anesthesiologist negligently kept the oxygen at  100% instead of lowering it for  laser surgery. She admitted she made this  mistake and was found negligent on summary judgment, but denied proximate cause of the fire.

We also blamed the doctors for going ahead with surgery when they had  never used this single cuff tube before and didn’t read warnings and instructions,  plus we claimed they failed to inform the patient about the situation. Both doctors blamed the hospital because they had always used a 2 cuff tube and the hospital only had a 1 cuff available for  them at the  time  of surgery.

Our claim against Medtronic was they knew doctors were “misusing” the product by missing the target with the laser and by not turning down the oxygen but did  not  warn and did  not  redesign their tube. Medtronic said  their tube was safe and it was exclusively doctor negligence.

Our claim against the hospital was they supplied a single cuff instead  of what the doctors asked  for and had not adopted laser safety policies and procedures. The hospital claimed the tube was safe, their policies were appropriate and it  was  not  their fault. Medtronic and the hospital also said hundreds of  thousands of tubes in use with only 8  fires over 13  years history.

The doctors refused to  blame Medtronic at  the time  of their deposition for design or warning during surgery and had no  experts on that issue at trial. When we filed the case our primary defendant was the hospital, but with Medtronic as the maker of the ETT tube as a defendant the venue could be in Seattle instead  of the small county in Eastern Washington where this happened.

The trial court granted  summary judgment against us on  our warning claim against Medtronic leaving design as the sole claim against them. Before the trial began we  reached a settlement with the hospital for $12M and the case proceeded against remaining defendants.  Mediation with defendants was  unsuccessful.

Under WA law the hospital is listed as a non  party empty  chair defendant, even though not represented  at trial. Any percentage assigned against it for negligence is deducted from a verdict against the  other defendants but the jury is not told this fact. The empty chair changed the dynamics substantially since we now had to defend the hospital and our previous discovery had done the opposite plus we now had conflicts in arguing hospital non liability while arguing Medtronic liability.

There were lots of expensive  experts. One defense expert for Medtronic said his fee was between $150 – $200K. . The defendants made an aggressive attack on damages. They had a world  renown Toronto doctor testify he could install a T tube which would  immediately get her off the ventilator saving millions in care costs and  that the treating doctors weren’t treating her right. A defense doctor  from Spokane, where her treating doctors were located, said our treating doctors could wean her from ventilator and they weren’t doing it.  Both testified she would be dead in 5 years anyway and one of our  treating doctors had implied the same thing – a fact they seized upon – so our projected costs they sa! id were greatly excessive anyway.

They hired a cost of care expert who said our costs were wrong and had four options for her which were a fraction of our costs. The defense spent more time attacking damages than I’ve ever seen in past cases. They had a defense economist and a defense life expectancy expert who were not called but were referenced in trial.

The jury asked a lot of questions of  every  witness except one: the defense doctor from Spokane for whom they had no questions.

Our client was never deposed and never in the courtroom at any time. I showed a 1 minute video of her being suctioned. A 45 second video of the noise the alarm makes on her ventilator rather often and a 3 minute video  without sound of her mouthing words to her sister all in the nursing home. Nothing else except three or four family members briefly and the treating doctors. Defendants also had two jury consultants with them. We had none present.

The judge limited time for argument. I had 35 minutes to argue our damages  & percentages of fault while each defendant had an hour to argue. It was frustratintg. I argued for 1% negligence  against the hospital. I suggested an equal division of fault among the  remaining defendants. The jury found no negligence for informed consent. The jury found the hospital 5% at fault. It found  no negligence as to Medtronic and assigned 42.5% fault against the  surgeon and the rest against the anesthesiologist.

I argued for $2.6 in past economic and $7.9M in future economc loss. Her normal life expectancy is 26 years. I argued no one knew her  real life expectancy, but used 14.5 years as a conservative number for  cost of care.The jury awarded my figures for economic loss. The jury awarded $8M for a total verdict of 18M and with the $12M  settlement this produced roughly a $30M recovery for our  client.

As always there are lots of war stories, and it should have been a lot more money for this poor woman’s injuries, but enough of you have asked about the case I thought I’d share this.

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