50 Shades of Malpractice

Mark Crane


February 27, 2017

In This Article

Sometimes Payoffs Are Large; Sometimes Not


Malpractice settlements can lead to big payouts, even when there's no decision as to whether negligence took place.

A 42-year-old woman won a $3.5 million confidential settlement in 2011 against an orthopedic surgeon and hospital stemming from their treatment of her Schatzker VI tibial plateau fracture, a fracture that is a high risk for compartment syndrome.

The orthopedist place an external fixator and intended to perform an open reduction internal fixation days later when the swelling receded, according to a report in Zarin's Jury Verdict Review and Analysis. Nursing staff noticed that the patient was having decreased movement and sensation in her foot and demonstrated symptoms consistent with compartment syndrome, her lawsuit alleged.

Just before the scheduled second surgery, the patient's foot was cool to the touch, gray, and without pulses. No angiography was performed, and a vascular surgeon wasn't consulted. The patient alleged that she should have been transferred to a better-equipped trauma center. The orthopedist's operation left her with significant and likely permanent muscle and nerve loss.

The surgeon testified during his deposition that some of the hospital nurses failed to report neurovascular abnormalities in a timely manner. However, two nurses claimed that they were unable to reach the orthopedist to advise him of their concerns. The hospital's expert said the plaintiff suffered an iatrogenic thermal injury to the sciatic nerve when the external fixator was placed, which can occur in the absence of negligence.

The orthopedist's expert said the woman suffered a vascular perfusion injury that wasn't amenable to treatment. The defense experts also questioned whether the plaintiff actually had compartment syndrome.

The parties mediated the claim and agreed to the $3.5 million settlement.


Huge verdicts don't always mean huge payouts to plaintiffs. Although a plaintiff's law firm boasted that a 2013 jury verdict of $25 million was the largest medical malpractice award in state history, it was slashed to $2 million because of Virginia's cap on such awards.

In January 2010, 37-year-old Christopher Denton had sudden-onset chest pain radiating into his jaw and left arm. He was rushed to a local hospital and treated with heart medication. He was transferred to Riverside Regional Medical Center, where he underwent a cardiac catheterization. Although that test showed 70% blockage of a main heart artery, cardiologist Dr Edward Chu reported that the arteries were clear and free of disease, said attorney Malcolm McConnell of the Richmond law firm of Allen, Allen, Allen & Allen.

Dr Chu diagnosed Denton with a mild infection of his heart, discontinued the heart medication, and discharged him on ibuprofen, the lawyer said. Three months later, Denton had a massive heart attack. He will probably require a heart transplant within a few years—and there's only a 50% chance he will survive 10 years after that, if indeed he gets the transplant, McConnell said.

At the trial, plaintiff's experts said the catheterization showed severe blockage requiring a stent to open the arteries. Defense experts argued that the blockages weren't that severe and didn't require drastic action.

The jury was never told about the $2 million cap on awards.


It's not just the doctor or his or her care that's a key factor in a trial. Factors unrelated to the healthcare may become issues in the outcome of the trial.

In a case tainted by several jurors making racist anti-Japanese comments, it took two trials and almost 9 years for a patient whose foot was amputated after a botched diagnosis to win her lawsuit.

Darlene Turner's lawsuit charged that Dr Nathan Stime, who has been repeatedly disciplined by state regulators, told her in 2004 that she had terminal cancer. In fact, she had pneumonia. During her treatment, she lapsed into a coma and later required amputation of her left foot, according to a report in the Spokane Spokesman-Review.

A jury reached a verdict finding for Dr Stime on December 7, 2008, the 66th anniversary of the bombing of Pearl Harbor. Two jurors told the trial judge that other jurors disparaged plaintiff's attorney Mark Kamitomo, calling him "Mr Kamikaze" and "Mr Miyagi" (a character in the movie The Karate Kid) and making other anti-Japanese comments. One juror said that because of the Pearl Harbor anniversary, the remarks were "almost appropriate."

The judge declared a mistrial. At a new trial in 2013, a jury awarded Turner $813,000 for past and future medical bills, lost wages, pain and suffering, and loss of consortium.

Dr Stime, now retired, had been fined $2000 by the state in 2009 for prescribing methadone to several drug-addicted patients, including one who died from an overdose. The doctor also was fined twice in 2007 for failing to diagnose one patient's rectal cancer over a period of 6 years and for failing to recognize cardiac symptoms in another patient who later had a heart attack.

West Virginia

Think carefully, and pay attention when you sign off on treatment. Failure to take action about a patient's known allergy to a drug contributed to his death and led to a $1 million award against the doctor.

Dr Delilah Stephens was the patient's attending physician and knew that he had had a previous allergic reaction to quetiapine fumarate (Seroquel®), according to the court opinion. Another physician ordered the antipsychotic drug when the patient was in the hospital for chronic health problems, including chronic obstructive pulmonary disease and chronic hypercapnia, which caused him to become confused and agitated. Dr Stephens signed off on that order and took no further action, the lawsuit charged.

The patient was heavily sedated and unresponsive. He developed tachyarrhythmia, QRS widening, bradycardia, and asystole before dying at the hospital.

In June 2015, the Supreme Court of Appeals of West Virginia in June upheld the 2013 jury verdict and punitive damages award, which found that the doctor was responsible for the patient's death and that the plaintiff "presented sufficient evidence that Dr Stephens' lack of treatment was dangerous, and even reckless." Two other physicians previously settled for $190,000. The jury in Dr Stephens' case awarded the patient's family $500,000 in compensatory damages and $500,000 in punitive damages.


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