Trial and Settlement Results

Steven L. Brown represented Judie Fritz, a retired nurse, who had a permanent sciatic nerve injury caused by the negligence of Dr. Michael Oberto, an orthopedist, during the performance of a total left hip replacement surgery. She had what is called a “total foot drop,” as a result of the negligence. Despite dictating in his Operative Note that he found the self-retaining surgical retractor “impaling” the sciatic nerve during the course of the surgery, he maintained that the retractor migrated onto the nerve during the surgery. Mr. Brown was able to successfully convince the jury that Dr. Oberto placed the retractor on the sciatic nerve at the start of the surgery and it remained there for the duration of the surgery, compressing the sciatic nerve and permanently destroying 50% of the nerve. In essence, Ms. Fritz had no ability to dorsiflex or evert her left foot, which prevented her from walking. Dr. Peter Cassini likened it to trying to walk in a ski boot. Expert testimony established that she was at an increased risk of falling, which she had done several times prior to trial. She also could no longer drive and was limited in what she could do in her activities of daily living, given that she had a pre-existing palsy on the other side. Defendants hired a well-known orthopedist who on cross-examination did not agree with defendant’s theory of how the damage occurred. Plaintiffs used a Stanford orthopedic hip specialist and a Stanford neurologist in obtaining this favorable verdict.

In April, 2012, A Yolo County Jury returned a medical malpractice verdict on behalf of Moises Garcia against Yolo County General Surgeon, Emery Chen, M.D.

Steven L. Brown and Douglas A. Gessell, of the Law Offices of Brown & Gessell, represented Mr. Garcia. The verdict exceded the last settlement demand made by plaintiff, and the defendant paid additional costs as a result. The October 22, 2009 laparoscopic cholecystectomy (gallbladder) surgery was performed by defendant, Dr. Emery Chen, at Woodland Memorial Hospital. In the course of the surgery, Dr. Chen negligently placed four surgical clips across the common hepatic duct, which connects the liver to the common bile duct and eventually conveys bile into the intestines to digest food. He claimed that he was placing the clips to maintain bleeding from the posterior branch of the cystic artery. We were able to establish by his own expert that he must have fired the clips blindly into an “oozing mass” of tissue and never confirmed where he placed the clips or on what structures he had clipped. Dr. Barry Gardiner, plaintiff’s expert, was able to convince the jury that Dr. Chen’s actions fell below the standard of care. Dr. Lawrence Way, defendant’s expert, admitted under cross-examination based on his own text book, that Dr. Chen violated the standard of care.

The jury also awarded all medical costs and wage loss in addition to non-ecnomic damages. Usually in medical malpractice, medical costs are not awarded, but in this case the medical costs were paid by a qualified, ERISA, self-funded plan and were, therefore, permitted. Dr. Chen refused to consent to settle this case. Thomas Doyle represented Dr. Chen.

WIDOW V. HOSPITAL, et al. (Northern California)

The client’s husband underwent a total knee replacement, the same surgery that he had undergone four months earlier. Immediately after the surgery, the nurses placed him on a PCA (Patient Controlled Anesthesia) machine that would allow him to self-administer Dilaudid, a pain killer eight times as potent as morphine. The PCA machine is designed to respond to the patient’s perceived pain levels, but to ensure safety, nurses must set a ceiling on the total amount of medicine that the patient can administer with each push of the PCA button and the total within a specific time-frame. This is intended to ultimately prevent overdoses and even death.

Tragically, the first set of nurses in the post-anasthesia recovery unit were responsible for setting the cap on the PCA. The first nurse was to set the ceiling according to the specific order by the surgeon, and instead she set it 3.5 times higher than ordered. Then, the second nurse was to double check the setting with the actual physician’s order. This was set procedure. Unfortunately, she failed to do so. Shortly thereafter, the patient was transfered to the regular floor. Upon transfer, two additional nurses were to go through the same procedure to prevent an overdose, confirming the order with the setting. All four nurses failed to follow hospital policies and procedures.

Consequently, the patient, a father and husband, euthanized himself by self-administering pain medication to the point of death, right in front of his unsuspecting and eventually terrified wife. To compound this tragedy, the medical staff and risk manager met with the widow shortly after her husband’s death and informed her that they had made a mistake but it did not cause his death. In fact, after Brown & Gessell started investigating the death, we discovered that the nurses had covered up the error. In deposition, one of the nurses admitted that she had changed the chart and another nurse admitted that she was aware of this cover-up. Brown & Gessell held them accountable and it led to a very favorable settlement that will never bring back her husband, but does help her continue her life.

It took extensive efforts to show that they had falsified the records. We were able to obtain a nurse’s admission of what she had done. We obtained the internal data from the PCA machine to show what had happened. The hospital settled this case for full value, and although nothing can bring back this wonderful woman’s husband, she is taken care of financially. This was despite their meeting with the widow prior to our retention where they told her that they did not cause his death. We proved otherwise.