Defense Expert Claims to Be "a Lot" More Cost Effective than Other Medical Personnel for Patient Diagnosis: Georgia Trial Highlight

Posted by Steve Silver on May 27, 2015 6:35:18 PM

 


In a recent Cobb County State Court case, the jury had to determine whether the plaintiff’s back problems resulted from injuries he suffered in an automobile accident or, instead, were a normal degenerative condition that occurs in most people over the age of 50. Jorge Horton v. Shannon King-Cortopassi (12-A-3850)

Prior to trial, defendant Shannon King-Cortopassi admitted liability for the accident, which occurred on January 2, 2012, when she broadsided plaintiff Jorge Horton’s car at an Atlanta intersection while traveling at a speed of about 40 miles per hour. After the accident, Jorge Horton complained of back and neck pain, which continued despite months of conservative treatment.

Click Here FREE Georgia Trial Video Samples The only issue at trial was the amount of damages. Both sides introduced testimony regarding Horton’s injuries. Horton introduced a deposition from his treating physician, Dr. Joseph Saba, who said that Horton had two herniated discs that were caused by the accident, and he recommended Horton undergo surgery. King-Cortopassi introduced a video deposition from a consulting radiologist, Dr. Barry Jeffries, who felt that Horton’s condition was caused solely by age-related degenerative disc disease, a condition present in 85% of people by age 50 (Horton was 52 at the time of the trial).

Horton’s attorney Joe Weeks repeatedly attacked Dr. Jeffries’ credibility on cross-examination. Dr. Jeffries, who testified frequently for defense attorneys in personal injury cases, did not examine Horton, as did Dr. Saba, but, instead based his diagnosis on his review of Horton’s medical records, including MRI scans. Weeks was able to finish his cross-examination by eliciting several damaging statements from Dr. Jeffries during a final five-minute re-cross examination.

Weeks seized upon Dr. Jeffries’ claim that he was better able to diagnose Horton than was his treating physician. He began his re-cross by asking Dr. Jeffries whether people could save money by eliminating all the various medical personnel and just ask Dr. Jeffries instead for a diagnosis when they arrive at the hospital. Dr. Jeffries first attempted to say that emergency rooms were making increased use of CT scans read by radiologists such as himself but then went on to say: “You are correct. You could save a lot of money if you went straight to me.” Weeks was then able to characterize that answer as a claim by Dr. Jeffries that nurses and ER doctors were “pretty useless.”

Later, Dr. Jeffries tried to caution against overreliance on a patient’s medical history by saying that some patients will fake a medical history. This statement gave Weeks a further opening. He asked Dr. Jeffries whether the physician was contending that Horton was a faker. Dr. Jeffries said he had no way to determine whether Horton was faking his symptoms. This statement allowed Weeks to follow up and end his examination on a strong note. He pointed out to Dr. Jeffries that none of the other doctors involved in treating Horton believed he was faking, to which Dr. Jeffries replied, “That’s their opinion; it’s not my opinion.” Weeks’s final question was somewhat rhetorical, “So you’re not going to defer to their opinion on anything?” to which Dr. Jeffries replied, “All I’m testifying to is the truth.”

The jury returned a verdict of over $208,000 for Horton, indicating that they believed Dr. Saba’s diagnosis rather than Dr. Jeffries’.

Steve Silver can be reached at ssilver@cvn.com. CVN’s earlier coverage of this case can be found here.

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Nursing Home Slapped With $2.5M Bedsore Verdict, Punitive Phase To Follow

Posted by David Siegel on May 27, 2015 1:46:00 AM

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Plaintiffs' attorney Michael Wright shows jurors where Doris Cote developed a bedsore that he argued became infected and caused her death. Click here to see video from the trial. Click here for a copy of the complaint. 

Mesa — An Arizona state court jury awarded $2.5 million on Friday to the family of an 86-year-old woman who developed an infected bedsore in a nursing home operated by Five Star Quality Care Inc. and later died, along with an undetermined amount of punitive damages to be decided in a second phase of the trial.

The 10-member jury deliberated for one day after hearing two-weeks of testimony before deciding unanimously that The Forum At Desert Harbor, a skilled nursing facility located in Peoria, was responsible for allowing Doris Cote to become malnourished and dehydrated after overmedicating her with painkillers. Cote’s family claimed her resulting weakened condition allowed a bedsore to become infected and eventually cause her death.

While the jurors found that the treatment Cote received fell below the standard of care, they rejected her family’s wrongful death claim, only finding that she was injured as a result of the nursing home’s negligence.

During his closing argument on behalf of the Cote family, Arthur Lloyd of Lloyd & Robinson PLLC told jurors that doctors initially expected Cote to be successfully discharged from The Forum after recuperating from a shoulder infection and compound fracture. Instead Lloyd said she was allowed to fall numerous times and developed a bedsore as a result of not being turned frequently enough, according to Courtroom View Network webcast of the trial. 

“What happened to Doris Cote should never happen to any human being,” Lloyd said before asking the jury to award between $2 and $3 million dollars in compensatory damages.

Bedsores, also known as pressure ulcers, occur when the skin breaks down where it comes into prolonged contact with a surface like a bed, and they are a common concern in nursing homes. Lloyd told the jury that Doris wasn’t turned frequently enough as she became lethargic due to overmedication and dehydration, and the sore devolved into a festering wound that went down to the bone.

“This is what abuse and neglect looks like,” Lloyd told the jury.  

Cote, who had a pacemaker and suffered from kidney disease, was first admitted to The Forum to recuperate from septic arthritis in November 2011. Lloyd said she lost 9 percent of her body weight by the time she was discharged.

The day she was discharged, Cote fell and suffered a lumbar fracture after her walker got caught in the doorway of her home. She was hospitalized and again admitted to The Forum, where Lloyd said she suffered numerous additional falls and developed a MRSA infection in a bedsore.

She was hospitalized again in January of 2012 before being discharged to another nursing home and eventually succumbing to pneumonia the following June. Her family sued Five Star later that year.

During her closing argument on behalf of the defendants, Carol Romano of Gust Rosenfeld PLC said Cote’s sharp decline was the result of ailments that afflict many senior citizens at the end of their lives and not because of negligence by the nursing home’s medical staff.

Romano said Cote, who suffered from numerous medical conditions before her first admission to The Forum, developed the bedsore that eventually became infected while she was hospitalized and not under the nursing home's care. She rejected Lloyd’s claim that Cote didn’t receive adequate skilled nursing care to treat the worsening sore.

“Every single day somebody wrote something in this woman’s chart about her wounds,” Romano told the jury. “That’s not falling through the cracks.”

Romano dismissed claims that Cote wasn’t adequately protected from falls as a “red herring.” According to Romano, the worst injury Cote suffered from her falls was a finger abrasion, and she argued that some falls are inevitable in situations where frail patients are involved in activities like physical therapy.

“It’s just a fact of life,” Romano said, before ending her closing argument by reminding jurors that everybody dies for some reason, and asking them not to punish dedicated healthcare workers who take on the difficult job of caring for very sick people.

During his closing rebuttal, Michael Wright of Udall Shumway PLC said that Doris Cote could have recovered as planned had The Forum’s staff adhered to the standard of care.

“They were just complacent, and they didn’t pick up on the red flags that were occurring,” Wright said.

Massachusetts-based Five Star operates more than 260 senior care facilities across the country, according to the company’s website.

The trial before Judge Mark Aceto, including the punitive damages phase currently underway, is being recorded and webcast gavel-to-gavel by CVN.

Attorneys for the parties declined to comment on the case prior to the conclusion of the second phase of the trial.

The Cote family is represented by Arthur Lloyd of Lloyd & Robinson PLLC and by Michael Wright of Udall Shumway PLC.

The defendants are represented by Carol Romano and Kelli Williams of Gust Rosenfeld PLC.

The case is The Estate of Doris L. Cote, et al. v. Five Star Quality Care Inc., et al., case number CV2012-094285, in Maricopa County Superior Court.

Related Coverage:

Jury Says Top Hospital Not At Fault After Intestine Connected To Vagina

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Topics: Negligence, Malpractice, healthcare, Arizona

North Carolina Defense Lawyer Highlights Engle Trading Card Tuesday

Posted by Courtroom View Network on May 26, 2015 6:05:13 PM

Today's CVN Engle progeny trading card features a North Carolina defense attorney who has argued Engle trials in front of CVN cameras for more than four years.

This week's featured attorney:

  • Represented his client in five CVN Engle proceedings in 2014.
  • Won his most recent trial earlier this year. 
  • Helped secure an award in a retrial on damages that was $78 million less than the award issued in the previous trial. 

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Who is this on this Week's Engle Card? Click to find out. 

Our Engle trading cards honor the attorneys who have had a lasting impact on Florida's landmark tobacco litigation. Our images and statistics are taken from our unequaled coverage of Engle progeny proceedings for more than six years. 

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Topics: Negligence, Products Liability, tobacco, Engle Litigation Trading Cards, Engle Progeny

Injured Driver Gets Day in Court Despite Prophecy but Loses Anyway

Posted by Steve Silver on May 26, 2015 2:57:36 PM


The Georgia Court of Appeals recently refused to hold a Prophecy against Plaintiff James Price and gave him another opportunity to prove his personal injury case against Defendant Raju Thapa. James Price v. Raju Thapa et al., 323 Ga. App. 628 (2013). However, even though the Prophecy wasn’t used against Price in his recent Clayton County State Court trial, he may have been doomed by his own words.

The Prophecy in this case was not a prediction of the future but a rule of evidence announced by the Georgia Supreme Court in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1986). In Prophecy, the Supreme Court held that, on a motion for summary judgment, if a party has given self-contradictory testimony on the dispositive issue in a case, the court must construe his testimony against him. Unless he presents other evidence in favor of his right to a verdict, the court must grant summary judgment against him.

Click Here FREE Georgia Trial Video Samples James Price was seriously injured in an automobile accident on September 25, 2008, when a van driven by Vijay Shah ran a stop sign and collided with Price’s vehicle. Although Shah, who was killed in the accident, was clearly at fault, his estate had limited assets and would probably be unable to satisfy a sizable judgment against it. Consequently, Price added Thapa as a defendant in the lawsuit he filed in Clayton County (Price v. Thapa et al., 2010 CV 06741). Thapa was a friend of Shah who was following closely behind Shah at the time the accident occurred, but whose car was not actually involved in the collision.

To establish liability against Thapa, Price intended to introduce evidence at trial showing that Thapa had also violated the law, either by speeding or by running the stop sign, and could be found jointly and severally liable with Shah. However, the trial court applied the Prophecy rule against Price and granted Thapa’s motion for summary judgment.

In his sworn affidavit, Price said that both Shah’s and Thapa’s vehicles were traveling about 65-70 miles per hour (in excess of the posted 55 mph limit) and that both vehicles ran the stop sign. However, in a subsequent deposition, Price said he didn’t see Shah’s van run the stop sign but that it must have, based on the speed of the vehicles and the impact. Further, he only saw Thapa’s car “zoom” behind him about a second prior to the collision. Price estimated the other vehicles were traveling about 60 miles per hour. The trial court found these statements to be contradictory and disregarded Price’s testimony in its entirety.

The Court of Appeals reversed, finding Price’s statements “essentially consistent.” Further, the Court found that there was other evidence supporting Price’s contention that Thapa ran the sign, namely, the testimony of the officer investigating the accident who did not find any skidmarks that would normally have been present had Thapa stopped his car at the stop sign as he indicated. For these reasons, the Court of Appeals found that the Prophecy rule did not apply and that Price was entitled to his day in court.

However, although Price was able to avoid summary judgment, his various statements in the case had not gone away, as Thapa’s attorney Evan Mermelstein pointed out in his closing statement. Mermelstein also called the jury’s attention to additional alleged contradictions in Price’s various sworn statements, adding: “Interestingly enough, the violations [of Price’s sworn oath] got worse and worse as the case progressed.” After spending over five minutes pointing out what he felt were inconsistencies in Price’s sworn statements, Mermelstein concluded, “So there were four different oaths that he took and four different oaths that he violated.”

The jury members apparently found Mermelstein’s arguments persuasive. Although they awarded Price nearly $1 million in damages against Shah’s estate, they issued a verdict in favor of Thapa.

Steve Silver can be reached at ssilver@cvn.com. CVN's earlier articles on this case can be found here and here.

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Critical Minutes Following Powerboat Accident Explained in $2M+ Wrongful Death Trial | Florida Trial Video Vault

Posted by Courtroom View Network on May 26, 2015 12:16:41 PM

In Priscilla Gratton’s suit against power boat racing organizers for the drowning death of her husband, champion racer Joey Gratton, Gregory Barnhart describes the importance of safety equipment and skilled divers to save racers. Priscilla Gratton claimed organizers’ failure to employ adequately trained rescue divers led to her husband’s death. 


It's critical for a trial's opening statement to clearly explain the circumstances of an accident at the heart of a lawsuit. However, unlike car collisions or slip-and-falls, involving activities jurors can easily picture, detailing an accident at an event unfamiliar to the average juror is much more difficult. That was the situation Searcy Denney's Gregory Barmnhart faced in Gratton v. DiPetrillo, a $2 million-plus wrongful death suit by Patricia Gratton against organizers of a powerboat race in which Gratton's husband, champion powerboat racer Joey Gratton, drowned. 

Click Here FREE Florida Trial Video Samples Patricia Gratton contended that race organizers negligently employed inexperienced safety divers who were unable to rescue her husband when his boat flipped during the event. However, the average person likely doesn't understand the unique dangers or attendant safety protocols of powerboat racing. In his opening statement, Barnhart, representing Patricia Gratton, walked jurors through a powerboat accident that would cause a boat like Gratton's to flip upside down. Using a powerboat model and photos of the accident to reinforce his narrative, Barnhart detailed for jurors both the safety equipment involved and the time-critical nature of such an accident. "Every minute that goes by, every second that goes by, (the boat) is slowly sinking," Barnhart explained, as he turned the model of the flipped boat vertically to demonstrate how it would sink. "You know what they call it? A tombstone. It looks like a tombstone, but it also can be a tombstone if you don't get the racers out." 

Barnhart's opening helped explain powerboats and their potentially fatal accidents in terms jurors could easily understand. It's an opening that helped pave the way for a mid-trial settlement for his client. 


Related Information

Watch Gratton v. DiPetrillo.

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Topics: Negligence, Florida, Video Highlight

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