Update: Jurors ultimately cleared Dr. Keith Kirby of liability in the case. Read the full article here. 

According to statements in the case, Keith Morges was a highly decorated Sergeant First Class in the Rangers who had been deployed more than ten times overseas during his military career. He had been shot and had suffered a number of other combat injuries including injuries resulting from being in a vehicle that was hit by an explosive device.

As a result of pain from his various injuries, Morges sought treatment from Dr. Keith Kirby at the Savannah Pain Center. On April 13, 2011, Dr. Kirby administered an epidural steroid injection to Morges. Shortly thereafter, Morges was taken to Memorial Hospital in Savannah for further treatment.

In his opening statement, Morges’ attorney Roy Kelly said that his client immediately felt a sharp pain in his back after receiving the injection and, after he arrived at the hospital, noticed he was having difficulty urinating. According to Kelly, Morges suffered permanent loss of bladder function and will need to self-catheterize for the rest of his life. Morges subsequently received a medical discharge from the U.S. Army.

In Kelly’s view, Dr. Kirby injected the steroid solution into Morges’ artery, which led to a clot forming in the artery. That clot caused a spinal cord stroke resulting in Morges’ bladder damage. Kelly believed that Dr. Kirby made several decisions regarding the injection he administered. In each case, Dr. Kirby chose a riskier type of treatment, and, had he made the less risky choice, Morges’ injury would not have occurred.As a result of the combination of choices Dr. Kirby made, Kelly believed the doctor exposed Morges to unreasonable risk of injury. Kelly noted, “If he had done [the less risky type of injection], we wouldn’t be here. … But because he chose to do [the three riskier options], instead of just changing one, that’s a breach of the standard of care, and it resulted in a permanent bladder injury to Keith Morges.”

Dr. Kirby’s attorney, Gregory Hodges, disputed Morges’ description of the standard of care required in the case. “Plaintiff’s counsel … tells you the standard of care requires that you avoid unreasonable risk. That is not the standard of care… Avoid all unreasonable risk is a trial tactic called a reptile tactic… Now their argument is, you’ve got to avoid all unreasonable risk. How many people do you think get killed in the shower? … Well, the risk is terrible. You can fall and crack your head… You drive to work you could get killed.”

In Hodges’ view, Morges did not suffer a spinal cord stroke. Hodges informed the jury that he had numerous medical records that were prepared at the time Morges was receiving treatment by doctors and other healthcare professionals who, with the exception of Dr. Kirby, “don’t really have a dog in this fight.” He noted that none of Morges’ treating physicians found any evidence of a stroke in those records, which included various MRIs that were performed.

Hodges also questioned whether Morges’ bladder problems began at the time he received the injection. He noted that Morges reported difficulty urinating two years before he received the epidural injection from Dr. Kirby. Further, the medical records from Morges’ stay at Memorial Hospital indicated that, by the time he was discharged two days after the epidural injection, he was able to urinate.

The trial is expected to continue for the remainder of this week.

Related information:

Attorneys involved in the case include Roy Kelly IV of Savannah's Kelly & Kelly for the plaintiffs, and I. Gregory Hodges of Savannah's Oliver Maner representing the defendants.

Watch on-demand video of the trial as soon as it becomes available. 

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Atlanta—Fulton County State Court Judge Diane Bessen declared a mistrial when the jury was unable to reach a verdict in a medical malpractice case involving a woman who suffered permanent nerve damage following spinal fusion surgery. The plaintiff, Terri Hendrix, had alleged over $4 million in special damages in the case. Terri Hendrix and Mike Hendrix v. Herschel Beker, M.D., and Resurgens, P.C. (13EV016515).

Pete Law delivers closing arguments before jurors in Wells v. Aslan Commons. Fulton County State Court judge Eric Richardson reduced the jury's $47.9 million punive awrad in the case to $250,000 under Georgia's statutory cap on punitive damages, O.C.G.A. 51-12-5.1, setting up a potential constituional challenge to the statute. 

A Georgia trial court ruling reducing a jury's $47.9 million punitive verdict in a personal injury suit to $250,000 under Georgia's puntive damage statute may set the case up as a prime candidate to challenge the controversial law.

Earlier this month, Fulton County State Court Judge Eric Richardson reduced the punitive award, originally rendered last month in Wells v. Aslan Commons, a personal injury suit stemming from severe burns Stephen Wells sustained when a gas line at his apartment complex, owned and operated by defendants, exploded. Judge Richardson's decision, rendered pursuant to O.C.G.A. 51-12-5.1, which caps punitives at $250,000 except in certain narrowly outlined circumstances, reduced the overall jury award from $73 million to $25.4 million. That award includes $17.9 million in compensatories and $7 million in attorney fees. 

Wells' attorneys, including Pete Law, of Atlanta's Law & Moran, said they intend to appeal the ruling, arguing that the cap is unconstitutional, but declined to comment in detail.

Georgia is one of a growing number of states that cap punitive damage awards. However, there is no uniformity when it comes to the maximum amounts, nor how they are determined. Some states, like Georgia, have a clear maximum, while other states determine the maximum based on some combination of evidentiary standards, the defendant’s earnings, and/or the type of injury sustained in the case. Critics argue that caps reduce defendants' accountability and deprive plaintiffs to their trial rights under the constitution. 

Constitutional challenges to statutory caps on non-economic damages in general have met mixed results across the country. However, Georgia is one of a minority of states to overturn a non-economic damages cap. In Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 691 S.E.2d 218 (2010), the state's supreme court ruled that a $350,000 stacked statutory cap on hedonic damages violated the state constitution's right to trial by jury. 

Even supporters of punitive damages caps argue for changes in current caps. The American Tort Reform Association argues generally for federal legislation creating a national standard for punitives and addresses the issue of multiple punitive damage awards. The organization, one of the largest advocates of caps on punitives, contends that federal legislation “would protect against unfair overkill, guard against possible due process violations, and help preserve the ability of future claimants to recover basic out‑of‑pocket expenses and damages for their pain and suffering," according to the organization's site. 

Wells' attorneys believe that the Georgia law, enacted in 1987, needs to be changed, and they are prepared to take their case to the state's highest court in order to try to make that happen.