Sarasota, Florida – A six-member jury found in favor of Sarasota’s oldest law firm last week in a legal malpractice lawsuit with potentially millions of dollar stake. 

The 86-year old law firm of Williams Parker Harrison Dietz & Getzen faced legal malpractice charges brought by Marc and Teresa Basnight, who claimed negligent legal advice led to the purchase of a commercial property that was later foreclosed on, and ultimately caused them roughly $3 million in damages. 

The jury rejected the arguments of the Basnight’s attorney, Andrew Seiden of Seiden, Alder & Matthewman P.A., after only 45-minutes of deliberations, according to the Sarasota Herald Tribune. 

Wiliams Parker attorneys John Moore and Terri Costa were represented by Phelps Dunbar partners Jessica Alley and Larry Ingram. 

Courtroom View Network recorded the full two-week trial, gavel-to-gavel, which is available here.

Sarasota, Florida – Partners from the prestigious law firm Williams Parker Harrison Dietz & Getzen are no strangers to Sarasota courtrooms, but in a legal malpractice trial that began this week they are not representing clients. They are the clients. 

 The firm, founded in 1925, is fighting a legal malpractice suit before Judge Charlie Roberts brought by Michael and Teresa Basnight, a local doctor and his wife alleging the 48-lawyer firm provided inadequate legal counsel leading to the purchase of an office building that was later foreclosed on. Michael Braga of the Sarasota Herald Tribune provides a great summary of yesterday’s opening statements and more background on the complicated case.  

Williams Parker obviously denies the charges, and it’s always fascinating when prominent members of the legal community look to find representation themselves. In this case, the Sarasota firm looked to the Tampa office of Phelps Dunbar, which with a 23-person professional liability practice group and offices across the southeast, certainly qualifies as a “big gun.” According to the Herald Tribune, Jessica Alley, a partner in the Tampa office, delivered opening statements. 

The plaintiffs are represented by Andrew Seiden of Seiden, Alder & Matthewman, P.A., a 7-person firm which, founded in 1998, is slightly younger than the 86-year old pillar of the Sarasota legal community they’re taking on in Judge Robert’s courtroom. 

CVN is webcasting the full two-week trial of Tibar v. Williams, gavel-to-gavel. With this many top-shelf lawyers squaring off in the courtroom, along with the financial stakes and seeing Sarasota’s oldest law firm on the stand, this should be anything but your average legal malpractice trial. 

The case is Tibar LLC v. Williams Parker, Case No. 2008 CA 018070 NC in the 12th Judicial Circuit Court of Florida. 

Gunshanan v. Pulmonary Practice (Orlando, Florida)
 
Instead of helping decide a court case, a Florida juror could face jail time himself after his Facebook posts caused a mistrial this month in a complex medical malpractice lawsuit.
 
Alexander Duff made a post to his profile on the social networking site saying he made a decision about a verdict in a wrongful death case, even though it was still underway. Jurors receive strict instructions not to discuss a trial outside the courtroom or to make any decisions before receiving instructions from a judge.
 
“Think I have one more day of jury duty, thank God,” wrote Duff in a status update on his Facebook wall, amongst other posts apparently trying to get friends to see a movie with him, according to images of his profile included in a court order. “Tomorrow we gotta make a decision who has the greater weight of proof between the plaintiff and defense, and I know my answer.”
 
He went on to describe the trial proceedings as “unbearably boring…lol.”
 
The case settled while Judge Lisa Munyon considered a motion for a mistrial, made by defense attorneys when they became aware of Duff’s online comments during the trial. She also set a date later this month for Duff’s arraignment on criminal contempt charges, which judges can use to penalize trial participants for violating court orders and can sometimes carry jail sentences.
 
Judges have broad discretion in sentencing for contempt violations, and the high-stakes in the underlying trial Duff was considering may not weigh in his favor. In the case, a widow blamed doctors for failing to detect her husband’s fatal lung cancer before it became inoperable. This was the second time the case went before a jury after an earlier unrelated mistrial, and rather than face the costs of a third trial the parties reached a settlement.
 
After the defense attorneys asked for a mistrial, Judge Munyon took the motion under advisement and allowed the jury to reach a verdict. The jury awarded the plaintiff, Peggi Gunshanan, $810,000 in damages, which were then voided when Judge Munyon granted the mistrial. Gunshanan’s attorneys, Scott Bates and James Dill of the law firm Morgan & Morgan, did not respond to a request for comment.
 
“The Facebook post caused considerable uncertainty as to whether a verdict would ultimately stand,” said Clay Coward, an attorney for with the law firm Wicker Smith, whose client was found not liable by the jury. He expressed sympathy for Duff’s situation, stating the judicial system needs to make clear the instructions jurors receive in the courtroom extend to the world of social media. “I am reluctant to criticize any juror who has taken two weeks away from his or her job and family to do his civic duty of serving on a jury,” said Coward.
 
But claiming the court’s instructions were not clear regarding social media may not be a viable defense for Duff. In copies of pre-trial instructions obtained from the court, Judge Munyon told jurors, “You must not use electronic devices or computers to talk about this case, including tweeting, texting, blogging, e-mailing, posting information on a website or chat room, or any other means at all.”
 
According to Dr. Cynthia Cohen, Ph.D., a trial consultant with Verdict Success, the feelings expressed by Duff are nothing new for jurors, but the use of social media increases their chance of getting caught. “Whatever happened around your dining room table twenty years ago, they (the court) didn’t know about,” said Cohen. “You have drawings of juries from hundreds of years ago, and there are people sleeping.”
 
However modern jurors face much closer scrutiny, since according to Cohen monitoring the social media activity of jurors is standard for almost any trial team. It would certainly take place on a trial of this scale, she said, which is how Duff’s comments were first noticed. Usually when jurors communicate online about a trial, they often simply are not aware of the real impact social media activity can have in the courtroom, said Cohen. “Most of the time they’re not even realizing it.”
 
Duff’s arraignment is set for August 31, which at least gives him enough time to update his privacy settings.
 
The original trial, which was webcast in full by Courtroom View Network, is Peggi Gunshanan v. Pulmonary Practice of Florida, et al., 2007-CA-010988-O, 9th Circuit Court of Florida.
 
Read the Court’s show-cause order for indirect criminal contempt. The arraignment is scheduled for August 31, and the show-cause hearing for October 7.

MacDonald v. Kaufman M.D. (West Palm Beach, Florida)

UPDATE – August 18: Judge David Crow declared a mistrial after jurors saw a consent form containing what Melissa MacDonald claims is a forgery of her signature. During opening statements, her attorney was adamant that she never gave consent for a vacuum-assisted delivery. The two sides had not agreed that the jury could see this document, so the current trial was scuttled.  

A mistrial is frustrating and expensive, but for a suit that’s been around since before the iPod existed, what’s a few more months?

A multi-million dollar medical malpractice lawsuit filed while Bill Clinton still lived in the White House finally went to trial last week in Palm Beach County Circuit Court. 

Melissa and Robert MacDonald originally sued Dr. Sam Kaufman and Woman’s Healthcare Associates over a decade ago, claiming the improper use of a vacuum suction device during the delivery of their son, Jordan, in 1998 caused a serious brain injury. Despite being physically healthy today, Jordan has the lowest possible I.Q. score anyone can have and will require constant care for the rest of his life, according to the MacDonalds’ attorney, Gary Cohen of Grossman Roth. 

Jurors rarely get to consider cases this old. It is extremely unusual for a civil suit to spend this long working through even the most clogged state court systems. Both the age of the case and the anticipated length of the trial indicate the high stakes for both sides. 

During opening statements, Cohen told the jury he would ask for an extremely large damages award, but the emotional impact of a family caring for a severely disabled child should not be the deciding factor. Instead he asked the jury to focus strictly on the evidence and whether or not the defendants’ actions during Jordan’s delivery fell below the appropriate standard of care. “We don’t want your sympathy,” Cohen repeatedly told the jurors.

According to Cohen, Dr. Kaufman used a vacuum extractor to assist in an emergency delivery after Melissa MacDonald went into premature labor, despite the fact MacDonald’s ongoing contractions were not weak enough to call for such aggressive treatment. “You never do that unless its indicated,” said Cohen after graphically describing the effects of a vacuum extractor on a newborn’s soft skull. “Why the rush to deliver this child?” he asked the jurors incredulously. 

Representing Dr. Kaufman, attorney Reed Kellner of Adams Coogler insisted that the physician acted properly during the delivery of Jordan MacDonald given the specific circumstances. He told the jury Jordan suffers from cerebral palsy which is a result of his premature birth at 35-weeks and not a result of Dr. Kaufman’s use of a vacuum extractor. 

Kellner claimed there was nothing aggressive or unusual about the use of a vacuum device. “Vacuum deliveries in the circumstances of this case, by reasonable obstetricians around the country, is considered safe and proper,” he said. “It’s part of the standard of care.” 

The 24-hour, lifetime care Jordan will need likely costs far more than any of the defendants’ malpractice insurers would pay, which is the likely reason a case of this complexity is actually being decided by a jury. The vast majority of medical malpractice lawsuits settle out of court before ever reaching trial.

As another sign of the high stakes in the case, Kellner was accompanied in the courtroom by additional defense attorneys from other firms, who will assist in witness testimony over the coming weeks. Extensive expert testimony from both sides is expected, along with testimony from Dr. Kaufman and other on-site medical staff. The trial is expected to last up to three weeks before Judge David Crow and is being webcast in full via Courtroom View Network (CVN).

The case is Melissa MacDonald v. Women’s Healthcare Associates, et al. No. 2000CA008025, 15th Judicial Circuit, Florida

Kalitan v. Alexander (Fort Lauderdale, Florida)

Dental assistant Susan Kalitan developed an injury common to those in her profession: carpal tunnel syndrome. However, unlike others who undergo surgery to eradicate the pain and discomfort associated with this condition, Ms. Kalitan ended up in a drug-induced coma and sustained a spinal cord injury in the course of what should have been a minor wrist surgery. How did Ms. Kalitan get here?

Ms. Kalitan’s attorney, Crane Johnstone (Schelesinger Firm), said that the anesthesiologist made a mistake during the procedure, and punched a hole in Ms. Kalitan’s esophagus.  The records showed that Ms. Kalitan complained of severe chest and back pain after the surgery. But instead of determining the cause of the pain, the hospital gave Ms. Kalitan pain medication and discharged her.

As a result of the hole in Ms. Kalitan’s esophagus, any food ingested risked entering not her stomach but her chest — and much of the food she consumed after being discharged did in fact end up in her chest. This led to sepsis, which brought her quickly back to the emergency room, where she underwent multiple major surgeries, eventually ended up in a drug-induced coma.

As a result of this carpal tunnel syndrome surgery gone horribly wrong, Ms. Kalitan brought this suit against the anesthesiologist, Dr. Rob Alexander, and several other defendants associated with the hospital.

Mr. Johnstone emphasized in his opening statement the damage sustained by the plaintiff over the course of the incident and since. He stated, “She was left with a feeding tube for months … She’s got major scarring all over her body. She could not eat or drink for months. To this day food hangs up in her throat. When she was lying in that hospital bed, she never got any physical therapy for the surgery on her wrist … she has been left with very serious and permanent pain in her neck and shoulders and hands.” He added that in addition to these physical injuries, as a result of the incident NAME suffered from depression and PTSD, had chronic fatigue, and could not afford to pay her debts. 

“This perforation, the evidence will show, should never have happened,” said Mr. Johnstone. “She wasn’t morbidly obese with a short neck, which makes intubation difficult. She didn’t have trauma where the airway was obstructed and there was a lot of blood you couldn’t see. There was no excuse for what happened here,” and Ms. Kalitan was never told that an anesthesiology student in her first semester of training would be practicing on her.

Defense attorney Robert Cousins (Quintairos, Preito, Wood, & Boyer)  demonstrated for the jury using tools and plastic throat models the steps involved in a rapid endotracheal intubation, concluding that it was successfully completed, and it was “extremely unlikely” that the soft, pliable tip of the endotracheal tube caused any injury or harm to the esophagus. The medical records showed that Dr. Alexander passed the tube successfully into the endotracheal area on the first attempt. If there had been an esophageal intubation it would have been noted on the records, which it was not.

An oro-gastric tube was placed through the mouth and esophagus and into Ms. Kalitan’s stomach, probably by a student, but also had a soft, flexible tube. A temperature probe was also inserted into the esophagus. The temperature probe had a more rigid tip, but was also soft and flexible. None of the devices when removed showed any signs of blood or trauma, so there was no reason for any of the caregivers to have believed that an injury had occurred.

“He was there … he supervised the case appropriately, and then he moved on to another procedure,” Mr. Cousins said. Further, even while Dr. Alexander was not present, the anesthesiologists and the certified registered nurse anesthetists followed proper hospital protocol.

Mr. Cousins told the jury that an injury during such “blind” procedures in which it was not possible to see past the vocal chords was unfortunate, but not negligent. Dr. Alexander acted reasonably, said Mr. Cousins, because Ms. Kalitan seemed fine after the procedure, and Dr. Alexander had no reason to believe that anything bad had happened.

CVN is covering Susan Kalitan v. Rob Alexander trial live.

Stalley v. Tampa General Hospital (Tampa, Florida).

Stalley v. Tampa General Hospital involves a two-day old baby (Inaaya Limone) whose broncheal endotracheal tube allegedly was improperly removed by a respiratory therapist on March 31, 2004. As a result, said attorney William Hahn, the child stopped breathing and suffered massive, permanent brain damage. According to Mr. Hahn, the child was neurlogically normal at birth, with Apgar scores of 8 and 9, and nothing during the child’s delivery contributed to her brain injury.

Now at age 7, the child cannot feed herself, cannot walk or stand, and cannot speak. Her biological parents abandoned her, and she was adopted by her grandparents. She will continue to require 24×7 care for the rest of her life, with damages potentially in excess of $100M.

For the defense, Carlton Fields’ Ed Carbone told the jury that the care providers were not negligent, and the challenged extubation episode did not cause the child’s brain injury. Instead, according to Mr. Carbone, the child’s injuries resulted from the traumatic pre-birth experiences that led to the her being placed in the neonatal intensive care unit in the first place, including compression of the umbilical cord, which was a pre-birth hypoxic event.

Prior to the extubation event, which resulted in a code, the child was breathing on her own, appeared ready to be extubated, and was in fact extubated according to plan, said Mr. Carbone.

Although the extubation did not go as expected, CPR efforts were prompt, and reintubation was begun within two minutes. The child never lost blood pressure. Moreover, said Mr. Carbone, blood readings after the event suggested that the extubation episode was not catastrophic. Because there was not 20 minutes of hypoxia, and, and no anoxia, the child’s severe injury could not have been caused by that episode, said Mr. Carbone.

CVN is webcasting Stalley v. Tampa General Hospital live.

Hootnick v. Wideroff involves an allegedly avoidable mid-thigh leg amputation for Jacob Hootnick, who was 87 years old and diabetic when he was admitted to an emergency room in November 2003.

Don Korman, of Bazinsky, Korman, Baker, told the jury that Mr. Hootnick reported to the emergency room with a high fever and an infected foot blister. After Mr. Hootnick was admitted, said Mr. Korman, a popliteal aneurysm stopped bloodflow to his left leg. The failure to rapidly diagnose and treat the aneurism, according to Mr. Korman, resulted in the unnecessary amputation of Mr. Hootnick’s leg. When he checked into the emergency room, Mr. Hootnick had complete motion in his foot and no pain in his leg.

For the defense, Rose Marie Antonacci-Pollock, of Falk Waas, told the jury that Mr. Hootnick didn’t just have a little fever and an infected blister. Instead, Mr. Hootnick had 104.2 fever resulting from a raging infection that had started in the foot, traveled up the leg, and was so virulent that it had become septic. Sepsis, Ms. Antonacci-Pollock explained, is a poisoning of the blood that, if allowed to progress, can and will lead to death. Mr. Hootnick also had manifestations of sepsis: disseminated intravascular coagulation (DIC) and eschemia in his leg. If Dr. Wideroff had done anything different, said Ms. Antonacci-Pollock, Mr. Hootnick would have died. Therefore, Dr. Wideroff was right not to perform “cowboy surgery” on a critically ill man.

Watch CVN’s live webcast of Hootnick v. Wideroff.

Yvette Johansen v. Vuocolo involved a patient, George Johansen, who died in 2002 a month after his lung was removed by a vascular surgeon, Phillip Vuocolo, due to suspected lung cancer, at the Heart and Family Health Institute, in Port St. Lucie, Florida. However, the subsequent pathology reports indicated that Mr. Johansen did not have lung cancer.

For the plaintiff, Probinksy & Associates’ Brent Probinsky told the jury that Dr. Vuocolo had “no business” doing a lung removal, because Dr. Vuocolo was not board certified as a thoracic surgeon, and fewer than 10% of Dr. Vuocolo’s surgeries were lung surgeries. In addition, according to Mr. Probinsky, Dr. Vuocolo should have done a biopsy and other tests to confirm the suspected cancer before performing a major and risky surgery. Mr. Probinksy also identified other alleged errors that resulted in complications, bleeding, and an additional surgery.

For the defense, Wicker Smith’s Adam Rhys told the jury that Mr. Johansen was entitled to choose a lumpectomy, and that it was a reasonable choice. In addition, Dr. Vuocolo was an experienced surgeon who had done a thousand thoracic surgeries, with good outcomes. A CAT and a PET scan both confirmed the initial X-ray report, so there was a high likelihood of cancer. Finally, a biopsy would have been risky as well, and could reasonably have been refused. Everything that Dr. Vuocolo did, Mr. Rhys concluded, was within the standard of care, and Mr. Johansen was fully informed as to the risks.

CVN is webcasting Johansen v. Vuocolo live.

Cook v. Sunrise Hospital is the retrial of a case in which Linda Cook claimed that Sunrise Hospital was responsible for complications during her back surgery, which eventually resulted in the amputation of Ms. Cook’s left leg. A prior defense verdict was reversed on appeal.

Plaintiff attorney Robert D. Vannah, of the law firm Vannah & Vannah, told the jury that Linda Cook was admitted to Sunrise Hospital for her second spine fusion surgery. However, during the surgery Ms. Cook lost blood pressure to her leg due to clotting.

The surgeons claimed that they requested access to an angiography suite to image Ms. Cook’s leg, so they could locate any clots, but the hospital would not make the room available. As a result, according to the plaintiff, the surgeon spent more than five hours manually locating and removing clots. Nonetheless, despite these efforts, ischemia resulted in gangrene and neuropathy, and Ms. Cook’s leg had to be amputated below the knee.

For the defense, Hall Prangle & Schoonveld’s Ben Patterson told the jury that Sunrise hospital had state of the art imaging equipment, and a high quality angiography suite, both of which were available to Ms. Cook’s surgeons. According to Mr. Patterson, the Quantum operating table that the surgeons were using for Ms. Cook had imaging capabilities, and the physicians’ claim that they were denied access to adequate imaging facilities was simply untrue. Instead, Mrs. Cook was actually on the precise table requested by the physician. Mr. Patterson suggested that the surgeons should not have closed Ms. Cook and sent her to the recovery room when she had no pulse in her left foot.

CVN is webcasting Cook v. Sunrise Hospital live.

Hon. Judge Julie O’Kane declared a mistrial in Torrence v. Pfizer, after the defense showed the jury prejudicial evidence that had not been admitted.

Plaintiff attorney Donald Farber opened the trial by asking the jury, “What caused Gary Torrence to kill himself on May 24, 2005?” Mr. Farber described Mr. Torrence as a practical joker, a very strong family man with traditional values, and with a strong family support system. Mr. Torrence was a highly successful hotel general manager for the Orlando Embassy Suites, who had just been transferred by Hilton to a prestigious new hotel in Washington DC. 

Plaintiff attorney Donald Farber had promised to prove that Gary Torrence’s suicide death was the result of medical negligence by Mr. Torrence’s primary care physician and the physician assistant.

“The anti-depressant that drove Gary Torrence out of his mind was Zoloft,” a Selective Serotonin Reuptake Inhibitor (SSRI), said Mr. Farber. The defendants allegedly failed to warn of the risk of suicide, and failed to monitor Mr. Torrence’s use of the drug.

For the defense, Rissman Barrett Hurt’s Vance Dawson told the jury that neither depression nor suicide were rare in the United States, and that Mr. Torrence committed suicide because he was experiencing stress, insomnia, and depression.

CVN webcast Torrence v. Pfizer opening statements live.