Minor v. Newbold (Reno, Nevada)

Despite weeks of gruesome testimony alleging failure to diagnose a small bowel obstruction resulted in the liquification of a child’s small intestine, a Washoe County jury found the doctors and two hospitals not liable in a medical malpractice lawsuit that concluded last month in Reno, Nevada before Judge Steven Elliot. 

According to Tia and Trapper Minor’s attorney, Ann Hall of Bowen Hall, doctors repeatedly treated their son, Caninn, with morphine and enemas instead of recognizing the seriousness of a small bowel obstruction and performing emergency surgery. When Caninn was transferred to another hospital and examined by an attending physician, his bed was “literally ran” into an operating room, but by then over 80% of his small bowel had died and needed to be removed. 

Hall told the jury even though a small bowel obstruction was indicated on a CT scan, and the severe deterioration of Minor’s condition after being admitted to the hospital was clearly consistent with an obstruction, that Dr. Richard Newbold and Dr. Timothy Gentner incorrectly diagnosed  the symptoms as a “lazy bowel” and other complications from Minor’s underlying cystic fibrosis, a congenital lung disease.

In a reflection of the complexity of the case, the multiple defendants all retained individual counsel, a contributing factor to the long, drawn out trial. 

Representing emergency room physician Richard Newbold, attorney Margo Piscevich told the jury, “Every person in this room has empathy for Canon Minor,” but she went on to emphatically state, “It is uncontroverted in this case there was not a diagnosable small bowel obstruction while this child was in the emergency room.” 

Attorney Edward Lemons, of Lemons, Grundy & Eisenberg, representing Dr. Gentner, made similar arguments that based on available information at the time, a small bowel diagnosis was not definitive. “Why didn’t the radiologist just say there was a small bowel obstruction?” Lemons asked the jury. “It wasn’t diagnosable at the time.”

The fact that Canin Minor received treatment at two separate hospitals, along with the underlying complexity of treating a patient with cystic fibrosis, resulted in the unusually large number of separate parties in the lawsuit all fully denying any negligence in Minor’s care without settling before an actual trial. Attorney John C. Kelly, of Carrol, Kelly, Trotter, Franzen & McKenna, represented Carson Tahoe Hospital and attorney John Cotton represented another treating physician. 

The nearly three weeks of testimony involved direct questioning of the treating physicians, as well as experts in emergency room and radiological care. Despite the hours of testimony and impassioned attorney arguments, the jury failed to find any of the treatment Canon Minor received fell below the appropriate standard of care and awarded no damages to his parents.

Watch CVN’s webcast of Minor v. Newbold. 

Cicatello v. Walton (Las Vegas, Nevada)

Dr. Charles Walton inadvertently perforated 15-year old Amanda Cicatello’s aorta while performing a routine laparoscopic appendectomy. Cicatello survived the surgery, and asserted a medical malpractice claim to recover damages for the harm resulting from the procedure to repair the aorta.

Peter Wetherall (White & Wetherall) asserted that Dr. Walton deviated from the standard of care by (1) using a non-standard procedure for conducting the appendectomy, (2) failing to use a camera view at the time of the insertion that caused the aortic injury, and (3) failing to maintain reasonable control over the instrument that he was using.

Drew Cass (Lewis Brisbois) told the jury that tearing of a blood vessel was a recognized risk of a laparoscopic appendectomy, and that when Dr. Walton discovered the tear that occurred during placement of a bladed trocar, he promptly and competently repaired it.

By a vote of 6-2, the jury found that the plaintiff failed to prove by a preponderance of evidence that Dr. Walton breached the standard of care.

CVN webcast the Cicatello medical malpractice trial live.

Kalitan v. Alexander (Fort Lauderdale, Florida)
Susan Kalitan suffered a perforated esophagus during intubation for anesthesia prior to surgery for carpal tunnel syndrome. The perforation was not detected, and subsequently caused severe harm.

In his closing argument for Dr. Alexander, Robert Cousins (Quintairos Preito) pointed out that the mere occurrence of bad things that should not happen does not mean that there was negligence, and in this case the risk of negative outcomes was disclosed to the patient.

Cousins read to the jury from a patient disclosure form: “‘There is a minimal possibility of bleeding or perforation’…and so, ladies and gentlemen, this is a known and recognized complication…Should it happen? No. But does that mean there’s negligence? Absolutely not.” In this case, said Cousins, there was nothing in the post-anesthesia procedure, under the circumstances, at the time, that should have alerted Dr. Alexander to a potential problem. Therefore, his failing to recognize the perforated esophagus did not breach the standard of care.

Representing Barry University, which trained student nurse Eleidy Miedes, who allegedly caused the injury to Ms. Kalitan’s esophagus, Jeffrey Creasman (Quintairos Prieto) told the jury “There’s not a shred of evidence in this case ladies and gentlemen that Ellie Miedes did any endotrachael intubation [which was the procedure that allegedly caused the injury]. None. Not a single witness has said that….that entirely exonerates my client.” Even if Ms. Miedes did any part of the procedure that injured Ms. Kalitan, Mr. Creasman continued, Miedes would be held to the standard of care of a student nurse directly supervised by a physician, and she would not have been expected to anticipate a difficult airway.

Representing Broward General Medical Center, Tom Heath (Heath Carcioppolo) told the jury that Broward’s nurses were top-notch critical care nurses who behaved properly throughout Ms. Kalitan’s stay. The nurses discharged Ms. Kalitan because she was medically stable and not in pain.

In his closing rebuttal, Crane Johnstone (Schlesinger) told the jury, “What you’ve seen is the attorneys for a month now and in closing remarks defend the indefensible. And, that’s what defense attorneys do. They speak for the defendants, and they will even, in a case like this, do what they have done, which is defend the indefensible.“

Reminding the jury of a nurse’s testimony, Mr. Johnstone said, “It was inexcusable and it was below the standard of care for three nurses to have heard from Susan about the pain that she had after a minor wrist procedure and not serve as an advocate and speak for her to make sure that the doctor came, or the nurses higher up in the hierarchy — the charge nurse, the supervising nurse — to get someone to see this woman before she went home…The pain she was experiencing was so severe she could barely stand up, and then got more pain medication, and it put her to sleep.“

“They never get a physician in to see her, despite the rules and the regulations of the hospital, that say that the etiology — the cause of this pain — should be determined if at all possible. And nobody did that…They never checked on her that afternoon to make sure that when the pain medication wore off she was ok, and that she didn’t require further help from her doctor. When they finally called her the next day, they called the wrong number. That’s the evidence in the case. That’s the care she got.“

Moreover, said Mr. Johnstone, nurse Miedes was on academic probation at Barry University and had subpar clinical marks at the time she cared for Ms. Kalitan, including her marks in Physiology and Difficult Airway Assessment.

The jury found negligence on the part of all defendants, assigning 50% to Dr. Alexander, 35% to Broward Medical Center, 5% to the student nurse, and 10% to the student nurse’s supervisor, who was acting on behalf of Barry University.

The jury found that Ms. Kalitan suffered a catastrophic severe closed head injury and awarded damages as follows: Past medical expensese: $142,704; future medical expenses: $472,287; past lost earnings: $55,220; future lost earnings: $47,800; past general damages including pain & suffering: $2M. Future general damages: $2M. The total damage award was $4,718,011.

CVN webcast the Kalitan medical malpractice trial live.

Santa Maria v. Abrahams (Fort Lauderdale, Florida)

Following an automobile accident, Maria Santa Maria received surgery for a deep cut on her wrist. After the surgery the cut became infected, and required several more operations, which ultimately led to severe scarring and the loss of some motor function in her wrist.

Representing Maria Santa Maria, Gregg Silverstein argued that Dr. Abrahams should have extended the incision during surgery to an ensure adequate cleansing of the wound.

Silverstein further argued that the infection was a result of Dr. Abrahams failing to extend the incision enough to adequately clean the wound. Silverstein said, “He could have extended that incision … there was nothing that would preclude him from doing that. The standard of care required that he do it, so that he could adequately clean … the wound.”

Silverstein asked for $140,000 in economic damages, plus general damages of $20,000 per year for every year since the accident (7.5 years), and $10,000 for every year for the rest of her life (35.4 more years).

Representing Dr. Anthony Abrahams, Kenneth Morgan of Billing Cochran Lyles argued that the plaintiff had not shown that the infection was a result of the operation. “Dr. Abrahams did not cause, or contribute to cause, any of those problems. He did everything he could. He acted appropriately, he acted reasonably, and he acted within the standard of care.”

The jury found that Dr. Abrahams was not negligent.

CVN webcast Santa Maria v. Abrahams live.

Johansen v. Vuocolo (Fort Pierce, Florida).

In his opening statement for the plaintiff, Probinsky and Associates’ Brent Probinsky briefly summed up the life of Yvette Johansen and her husband, George Johansen. He informed the jury that Mr. Johansen was a patient of the Heart and Family Health Institute, and had been for many years. His doctor there, Phillip Vuocolo, told the Johansens that Mr. Johansen had lung cancer. Dr. Vuocolo also told the Johansens that the lung had to be removed. Mr. Johansen died a month after Dr. Vuocolo conducted the surgery. During the surgery, Dr. Vuocolo was informed that Mr. Johansen did not have cancer, yet continued to remove the lung.  Mr. Probinsky argued that a biopsy and other tests should have been completed before the surgery was performed. Morover, he argued that because Dr. Vuocolo was not board certified as a thoracic surgeon and less than 10% of his surgeries were lung surgeries, he should never have performed the surgery on Mr. Johansen.

In his opening statement for the defense, Wicker Smith’s Adam Rhys argued that Mr. Johansen was informed as to the risks and benefits of the surgery and that it was a reasonable choice. He stated that Dr. Vuocolo was an experienced surgeon in general, vascular and thoracic surgery. Further, he claimed that Dr. Vuocolo had done a thousand thoracic surgeries, with positive outcomes. CAT and PET scans were performed prior to the lung removal surgery on Mr. Johansen, which confirmed a high likelihood of cancer. A biopsy had its own risks, and Mr. Johansen could reasonably have refused it. Mr. Rhys concluded that Dr. Vuocolo’s actions were within the standard of care and reiterated that Mr. Johansen was informed of the risks.

In his closing statement, Probinsky reiterated that Mr. Johansen did not have lung cancer. He further stated that a major issue in the case was the fact that Mr. Johansen was never offered a needle biopsy, which had a 1-2% chance of death as compared to his surgery which had a 25-50% risk. Another main issue, Probinsky argued, was the fact that Mr. Johansen died from the surgery itself. Moreover, Mr. Johansen was not fully informed of all the risks and treatment options. Mr. Probinsky also emphasized his argument that Dr, Vuocolo was too inexperienced to treat Mr. Johansen, and that he did not satisfy the standard of care in the course of this treatment.

In his closing statement, Mr. Rhys reiterated that Mr. Johansen was fully informed of the risks and benefits of the surgery. He recounted testimony from his expert witness that neither a needle biopsy or bronchoscopy would have been effective for Mr. Johansen. Furthermore, he defended Dr. Vuocolo’s choice of treatment by producing evidence that other surgeons agreed with this treatment. Mr. Rhys argued that cancer was a reasonable diagnosis. Mr. Rhys concluded by arguing that Mr. Johansen was presented with options, and made a reasonable choice when deciding to go through with the surgery.

The jury found in favor of the defense, concluding that there was no negligence on behalf of Dr. Vuocolo in treating or obtaining informed consent that was a legal cause of the plaintiff’s damages.

Hootnick v. Wideroff (West Palm Beach, FL).

Watch Rosemarie Antonacci-Pollock’s closing argument, in which she shows the jury CVN video clips.

In this medical malpractice trial, Jacob Hootnick claimed that the amputation of his left leg above the knee could have been avoided.

In his closing argument on behalf of Mr. Hootnick, Bazinsky Korman’s Don Korman told the jury that the the problem the 89-year old Mr. Hootnick had when he was admitted to Delray Medical Center in south Florida “was an acute occlusion of the popliteal artery — not sub-acute; it had not happened days in advance. It was acute, and it should have been operated on.” Mr. Korman reviewed the testimony that Mr. Hootnick had walked, swam, and even danced during the days prior to his admission, as well as the results of a physical examination that reported full motion of and no pain in Mr. Hootnick’s foot immediately prior to his admission.

“If you listen to the defendants,” said Mr. Korman, “Mr. Hootnick was at death’s doorstep. Mr. Hootnick was septic. He was sick. Every organ in his body was under attack. He was gonna die. That’s what Dr. Wideroff said — he thought he was gonna die. Do you see any urgency, do you see anything that suggests they were overly concerned about this 89-year old diabetic [in the plan proposed by the admitting physician]?…Was he sent to the ICU?  No…Were there any special orders entered saying ‘Monitor this man frequently,’? No.” Instead, said Mr. Korman, Mr. Hootnick was placed on a medical floor, and nobody saw him for approximately ten hours. Nor was there any urgency, said Mr. Korman, on the part of the surgeon who was informed the following evening of the severe deterioration of Mr. Hootnick’s leg.

The defense of the case, said Mr. Korman, was that Mr. Hootnick’s condition had developed days earlier, and even if it hadn’t, Mr. Hootnick was septic, so surgery would kill him.

But that story only emerges in retrospect, said Mr. Korman, through the lens of litigation and retained experts. The medical chart as it existed that evening revealed nothing about a risk of ‘cowboy surgery’ or a concern that Mr. Hootnick was going to die. Instead, said Mr. Korman, the surgeon chose not to operate because he erroneously concluded that it was too late to operate, even though it was not too late.

Mr. Hootnick’s claims against the three physicians, Jonathan Wideroff, Alan Lieberman, and Julio Cardenas, were based on their alleged failure to timely and accurately diagnose, communicate, and/or treat Mr. Hootnick’s condition.

On behalf of the defense, Falk Waas’s Rosemarie Antonacci-Pollock told the jury, “There’s a saying in medicine that it takes four years to teach a surgeon how to cut; but it takes a lifetime to teach them when not to cut. Fortunately for Jacob Hootnick, that was a lesson that Dr. Wideroff knew, and knew well. Because the evidence has shown that the only reason that Jacob Hootnick has lived to the age of 96, the only reason he has had his last seven birthdays, the only reason he has been here to celebrate his 70th wedding anniversary, and the only reason he has been able to travel around the country and attend his grandchildren’s weddings these past seven years is because Dr. Wideroff exercised the kind of judgment that we hope all physicians will exercise in a similar circumstance…Not every patient is a surgical candidate, and you have to realize when you have the capacity to do harm.”

The jury ruled in favor of all three defendants.

CVN webcast Hootnick v. Wideroff live.

In Atlanta Oculoplastic Surgery v. Nestlehutt, the Georgia Supreme Court unanimously ruled that a statutory damage cap in medical malpractice cases was unconstitutional because it violated the right to a trial by jury. 

CVN was there for the oral arguments.

Michael Terry, of Bondurant Mixon & Elmore, argued:

“For 200 years it’s been the exclusive province of the jury to set the damages in the first instance, based on the evidence in the case.  It’s the exclusive province of the trial court to review the verdict for consistency with the evidence, and it’s the exclusive province of the appellate court to review the trial court’s decision.” 

CVN is pleased to announce that our Medical Malpractice Litigation Video Collection now includes nine trials: Belaski v. Doctors Hospital, Kornak v. North Broward Hospital District, Smith v. Parker, Evans v. Deshazo, King v. Greathouse, Kroll v. Zolfaghari, Cuppy v. Surgical Professionals, Pullin v. Team Physicans, and Konke v Mayer.

These nine trials bring to practitioners a broad range of medical malpractice litigation issues, and experts, including:

• - Obstetrics
• - Anesthesiology
• - Drug Overdose
• - Chiropractic
• - Failure to Diagnose
• - Internal Bleeding
• - Ventricular Dysfunction
• - Orthopedic Surgery