50 Shades of Malpractice

Mark Crane


February 27, 2017

In This Article

Botched Care; Expert Testimony Requirements


Stomachache or heart attack? Be very sure before you discharge the patient.

In 2014, a Walker County jury awarded $4 million to a woman who claimed that her husband died in 2008 because a doctor mistook symptoms of a heart attack for a stomach problem, according to a report on the website al.com.

The lawsuit charged that Dr Charles E. Shipman, an emergency department (ED) doctor at Walker Baptist Medical Center, should have done more to investigate a heart condition before releasing the 40-year-old patient after a few hours.

A few days later, the man fell while clutching his chest and telling his wife to call 911. He was taken to the hospital but could not be revived, according to the lawsuit.

The standard of care required that the doctor consider and rule out a cardiac problem, said the family's attorney. No blood tests for cardiac damage or ischemia were ordered, he said.


A physician often recognizes "botched" care provided by another physician.

An Anchorage plumber who sued his neurosurgeon for botching a 2009 operation was awarded $1.7 million by a jury that found the physician acted recklessly.

Marvin Kroener saw neurosurgeon Dr Kim B. Wright after suffering an injury at work, according to a report in Alaska Dispatch News. He complained of lower back and leg pain. Dr Wright recommended spinal surgery. During the procedure, he said he found a meningocele that had caused extensive bleeding and resulted in a large opening of the dura.

After complaining the next day of severe neck pain and headaches, the patient was admitted to the hospital and diagnosed with chemical meningitis, a postoperative infection. The patient saw another surgeon, who performed two other procedures. During the second operation, the surgeon discovered a defect in the dural layer and hemostatic material stuffed into the spine, the lawsuit states. That surgeon told him there was no cyst or blood vessel defect before Dr Wright operated and that his complications were caused "by instrumentation."

The patient is in near-constant pain and suffers from incurable arachnoiditis, an inflammation of the nerves, the lawsuit charged. A fresh look at the doctor's prior cases revealed a sponge lost in the patient, and other suspicious issues.


There are definitely times when a physician needs to be aggressive and act quickly. The conundrum is, symptoms might masquerade as some other condition.

Failure to quickly respond to a serious infection led to one of the largest medical malpractice verdicts in Arizona history.

After a meniscus tear to her knee, Lori Sandretto had surgery performed in 2008 by orthopedist Dr Charles Calkins, who was employed by Payson Healthcare Management. Fluid removed from her knee tested negative for infection.

About a week later, Sandretto's knee was swollen, red and painful. A physician assistant (PA) who worked with Dr Calkins examined her and prescribed antibiotics for a skin infection. Days later, she went to the ED with the same symptoms. Dr Calkins came to the hospital and prescribed a different antibiotic.

With no improvement 1 week later, the patient again saw the PA, who aspirated her knee. This time, tests showed the fluid was positive for methicillin-resistant Staphylococcus aureus (MRSA).

Dr Calkins operated three times to wash out the MRSA. The patient filed a lawsuit alleging that the doctor and his PA failed to properly treat the infection. She developed contractures, an abnormal gait, and muscle loss and requires a spinal pain pump. She also had a total knee replacement but remains in considerable pain, the lawsuit alleged.

Just before trial in 2012, the patient settled with Dr Calkins for an undisclosed amount. The doctor's employer, Payson Healthcare Management, was the only defendant at trial.

A jury awarded the patient more than $7.2 million. The Arizona Court of Appeals upheld the verdict in 2014, finding there was substantial evidence for a jury to conclude that her doctor waited too long before testing for the source of the infection and acting aggressively to get rid of it.


Which experts may testify in a malpractice trial remains a contentious issue and varies by state. The Arkansas Supreme Court in 2012 found that part of a law that requires expert testimony must come from "medical care providers in the same specialty as the defendant" violates the state constitution.

Plaintiff Teresa Broussard underwent a parathyroidectomy in 2006 and developed a burn near the surgical site, according to the court's opinion. After the operation, she complained of severe pain. A few weeks later, a black eschar (dead, sloughing tissue) developed at her neck and chest. She was admitted to a burn center in Tulsa, Oklahoma, and underwent removal of "pigskin" and received skin grafts.

She sued St Edward Mercy Health System, Inc.—the Arkansas hospital where she had the first procedure—along with several doctors, nurses, and technicians present in the operating room, for negligent treatment of the burn. The case was dismissed before trial because her expert witness wasn't a surgeon and therefore couldn't legally testify about the standard of care, an appeals court ruled.

The Supreme Court found the law limiting expert testimony "invades the province of the judiciary's authority to set and control (trial) procedures. As such, it violates the separation of powers doctrine...and the inherent authority of the courts to protect the integrity of the proceedings and the rights of the litigants."

The court reinstated the lawsuit and remanded it back to the trial court.


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