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Verdicts & Settlements: Firm succeeds against botched surgery claim

January was a win-some, lose-some month for defense shop Huff, Powell & Bailey, whose lawyers beat back one medical malpractice suit in Fulton County only to be hit with a $4.3 million plaintiffs' verdict in DeKalb County 10 days later.

On Jan. 16, a Fulton County jury returned a defense verdict in the case of 55-year-old Cynthia Smith, who died Dec. 23, 2005, nine days after surgery to repair an open wound caused by gastric-bypass surgery several months earlier.

According to the complaint, Smith had undergone the gastric-bypass surgery in April 2005 and had experienced several complications, including a leak from the small bowel that resulted in a the formation of a fistula, described as an opening in the skin that exposed part of Mrs. Smith's digestive system.

The pretrial order says that Smith was too weak for surgery to repair the fistula at the time, and the doctor she consulted in May, Dr. Timothy Simon, said she would need to wait several months to regain her strength and heal enough to withstand the surgery and a fairly complicated postoperative course.

The surgery was performed Dec. 14, and the next day she was complaining of nausea and pain, and her blood pressure was low. In the following days, she began vomiting copious amounts of a green substance, according to the pretrial order. By Dec. 22 she was confused and complaining of pain and nausea and her stomach was distended.

Simon's partner, Dr. Dennis Choat, performed exploratory surgery that day and discovered that Mrs. Smith's bowel was mostly dead, and full of infection, including foul smelling pus and abscesses, says the order.

In consultation with her husband, Michael Smith, it was decided that Mrs. Smith could not be saved, and she was removed from lifesupport. She died in the early morning hours of Dec. 23.

The complaint filed in 2007 on Michael Smith's behalf by Gorby, Peters & Associates partner Mary Donne Peters and associates Montoya J. McGee and Jeffrey D. Cooper said that Simon and Choat had failed to timely diagnose and treat a progressive life-threatening condition in Mrs. Smith's abdomen. It named the doctors and their employer, Georgia Colon and Rectal Surgical Associates, as defendants.

Trial began Jan. 11 before Fulton County Superior Court Judge T. Jackson Bedford Jr. The defense team of Huff Bailey partners M. Scott Bailey and Julye M. Johns argued that the doctors had closely monitored Smith's condition and had no way of knowing that her bowel was in such bad condition until the exploratory surgery, said Bailey.

Bailey was a late addition to the case, stepping in to try the case a few weeks before trial, he said, when partner Daniel N. Huff was called to DeKalb County State Court to try the other med-mal case.

I think the overall criticism of Dr. Simon and Dr. Choat was that [Mrs. Smith] was failing to get better after this fistula repair, he said. They said there should have been further exploration.

A key element for the defense, he said, was an incident that occurred the day before Smith's death, when she vomited and aspirated some of the matter into her lungs.

That was a huge turning point in the case, he said. We believe it set off an inflammatory response that set off system shock. The aspiration itself and the sepsis shunted the blood away from her bowel and caused it to become ischemic [cutting off the blood supply, killing the organ]. It can happen very quickly, within a couple of hours.

Testimony concluded on Friday, Jan. 15, and Bedford decided to continue with closing arguments and jury deliberations on Saturday, the first day of the Martin Luther King Jr. holiday, instead of calling jurors back after the long weekend.

After about four hours of deliberations, the jury returned a defense verdict. Because the parties reached a high-low agreement while the jury was out, the plaintiff will receive an award, but the details are confidential, said Bailey. There will be no appeals because of that agreement, he said.

I think the jury was pretty impressed by the level of documentation that occurred on a daily basis, said Bailey, who spoke to some panel members afterward. Dr. Simon had a long relationship with this patient. He was really devoted to her. The jury seemed to believe that, if Dr. Simon had seen something, he would have done something about it.

Peters was in depositions and unable to comment on the case, she said.

The case is Smith v. Simon, No. 2007CV143981.

Family awarded $4.3 million

In the case Huff Bailey lost, a DeKalb County jury awarded $4.3 million to the mother and children of a woman who died almost eight years ago following an infection that set in after she gave birth to twins.

Tanyka Brydson was 24 on March 21, 2002, when she delivered the babies by cesarean section at DeKalb Medical Center. The delivery was apparently unremarkable, but Brydson soon began to experience a sharp rise in temperature and elevated white blood count.

Over the next several days, her condition worsened and the incision point displayed increasing signs of infection, becoming painful, hardening and showing signs of necrotizing fasciitis, or dying of the tissue.

She was treated with broad-spectrum antibiotics but did not respond, her temperature rising to 105 degrees at one point, and a new infection erupting on her thigh.

Brydson underwent several surgical debridements, procedures in which dead tissue is cut away, on her abdomen, groin and thighs, and was eventually placed on a respirator, according to the order.

On May 2, she was transferred to Emory Crawford Long Hospital for hyperbaric therapy, where she stayed for seven weeks before dying of multi-organ system failure, sepsis and blood clots throughout her circulatory system.

In 2004, Brad C. Kaplan and James I. Seifter of Marietta's Kaplan & Seifter and Horatio O. Edmondson of Stone Mountain filed a wrongful death action against DeKalb Medical Center, Consolidated OB-GYN Specialty Group, DeKalb Surgical Associates and eight doctors involved in Brydson's care.

The 10-count complaint, filed on behalf of Kathleen Allen, Brydson's mother and executor of her estate, and two of the dead woman's children, Erica Reese and Ethan Brydson, charged the defendants with negligently causing Brysdon's excruciating catastrophic personal injuries and death.

By the time the case was ready for trial, several defendants had been dismissed, said Jeffrey R. Harris of Harris, Penn & Lowry, who was brought in to handle the trial with partner Stephen G. Lowry about six months ago. At one point, [the case] was like a medical lawyer's full-employment act, said Harris.

When trial began on Jan. 11 before DeKalb County State Court Judge Barbara J. Mobley, the defendants included Consolidated and its employee, Dr. Alecia R. Lovelady, who had performed the C-section; and DeKalb Surgical Associates and its employee, Dr. Michael J. Cornwell, who had performed several of the debridements and consulted with Brydson's other doctors on the procedures.

The other defendants, said the attorneys in the case, were dismissed; no settlements were paid for those dismissals.

This was really a gruesome case, said Harris, noting that the debridements eventually cut away 40 percent of Brydson's body before she died, a figure confirmed by opposing counsel. It's god-awful what happened to her.

At trial, defense attorneys argued that Brydson's infections were not caused by any improper care, but that the womanwho had a history of severe reactions to medications and antibioticssuffered from one or more additional ailments.

This was a tragic case, a horrible, horrible story, said Commander + Pound partner Theodore E.G. Pound, who led a team defending Consolidated and Lovelady that included his associate, Lori E. Jolly, and Carlock, Copeland & Stair partner Asha F. Jackson and associate Samantha T. Lemery.

But, he said, the evidence was fairly clear that she had more than a simple wound infection. She had some sort of auto-immune disease. Over time it became clear that either this auto-immune disease contributed, or other very rare lethal conditions that are not very well understood. No one ever really knew why she died.

Huff, who represented DeKalb Surgical and Cornwell, said his client had been accused of failing to perform debriding procedures frequently enough, but those assertions were misguided, he said.

Dr. Cornwell was evaluating her every day, he said. Based on his observations, she had healthy tissue and did need to go back to the operation room. He could assess that whether she was in the operating room or [intensive care unit].

The trial wrapped up Jan. 25, and the following day the jury returned a verdict finding no fault on the the part of Lovelady, the obstetrician, but holding Consolidated, DeKalb Surgical and Cornwell liable for a total of $4,317,495, including $2.3 million for the value of Brydson's life, $200,000 for pain and suffering, and $1,817,495 for medical and funeral expenses.

Both Pound and Huff said an appeal or motion for new trial is highly likely, and they agreed that the jury may have been moved by sympathy for Brydson and her family due to the horrific circumstances of her death.

The verdict is against the great weight of the medical evidence, said Pound. It is very difficult ... to understand how the jury concluded that Consolidated was at fault, but Dr. Lovelady was not. It is beyond my understanding.

It is terribly unfair to me to think that this would be blamed on the obstetrician and the surgeon, he said. This is the most difficult case I've ever tried. In speaking with the jurors, it was a very close call on Dr. Cornwell, said Huff. They said it was split for a lot of the deliberations; they felt he should have taken her to the operating room more frequently for debridements.

Harris, too, said the case was extraordinarily difficult, and credited partner Lowry as the genius who sat around and read seven years of medical records and reports in six months as key to the win.

It was a very long case. I think, at one point, there were 15 or 20 medical experts on the other side, said Harris. Sometimes more is less.

The case is Allen v. Consolidated OB-GYN, No. 04-A-18223-5.

Screening Panels Are Not The Answer For Medical Malpractice Reform In Georgia

Posted by M. Brandon Smith January 10, 2010 11:24 PM

In a guest column in the Atlanta Journal Constitution on January 8, 2010, a medical services company’s CEO provides what many may assume is a novel and “middle ground” solution to the costs associated with medical malpractice in Georgia. Citing the example of Betty Nestlehutt, who was injured and permanently scarred as a result of a face-lift procedure, the CEO suggests that before an injured Georgia patient can bring her case before a jury, she should first have to convince a panel of medical professionals that her case has merit. Certainly the argument for screening malpractice cases is reasonable and even sound, but the problem with his proposal is that this pre-lawsuit screening system is already in place in Georgia.

Betty Nestlehutt's claim was pre-screened by numerous doctors, all of whom agreed that her doctor did not meet the minimum standard of care that she should have received. An affidavit giving specific details on the nature of her doctor’s malpractice was filed by a Georgia doctor who practiced the same type of medicine as the doctor who injured her. Despite these medical opinions validating her case, her doctor’s insurance company refused to resolve her case.

Contrary to tort reform folklore, the surgeon who testified on her behalf at trial was not some ‘hired gun’ who had never met Mrs. Nestlehutt. Rather, he was the Chief of Facial Plastic and Reconstructive Surgery at Emory University. His credibility stemmed not only from his extensive experience and training, but also because he had provided treatment to her following her injuries and knew her medical history down to the detail. He stood before the jury coming from a place of knowledge, principle, and fidelity to the high standards of the medical profession.

The same was not the case with the defendant’s insurance company. Testifying on their behalf were numerous hired witnesses who had never examined Mrs. Nestlehutt, yet were somehow able to testify that her doctor did nothing wrong. This is hardly the scenario that most Georgians would see fit to judge the merits of their personal injury.

As illustrated through Mrs. Nestlehutt’s case, the systematic screening of medical malpractice cases is already the law in Georgia. Malpractice cases filed in Georgia must be extensively reviewed by qualified medical professionals who must complete affidavits under oath detailing the specific acts of malpractice before the cases can even be filed. Moreover, these practitioners must work in the same field as the defendant doctor. In examining in Mrs. Nestlehutt’s case, the reviewing doctor on her behalf performed the same kind of plastic surgery that resulted in her injuries.

The state of Maine, which employs the legal processes endorsed by this tort reform columnist in the Atlanta Journal Constitution, is experiencing its own share of challenges. The Chief Justice of the Maine Supreme Court has gone on record saying that her state’s use of medical screening panels is “a cumbersome process with unpredictable results that cost both the plaintiffs and defendants money and time.” In her observation, not only does the system significantly delay justice, but perhaps more alarmingly it removes incentive for defendants’ insurance companies to reach fair settlements out of court.

So, what would “reform” of this nature mean for Georgia? It would mean that individuals who were legitimately harmed through medical malpractice would likely be significantly delayed at best, and at worst, totally prevented from seeking compensation for their injuries. For those trying to profit from frivolous lawsuits there would be no change – the majority would still be eliminated through the review process and expert affidavit requirement. The bottom line is that medical malpractice law is a difficult and complex issue which attempts to strike a balance between patients’ rights and the burdens on the medical profession. The solutions are not easy or clear cut, yet Georgia’s system of providing clear and informed safeguards against frivolous lawsuits while retaining access to a fair trial to injured persons is sound and just. One of the pillars of the justice system is to ensure that individuals retain their legal rights to a jury of their peers, not a panel of biased bureaucrats.

Others have voiced their opinons on this issue as well. Take a few moments to review the more informed response from the Georgia Trial Lawyers Association and fellow blogger Mark Zamora, who, like us, knows their opinions are the TRUTH.

HARRIS PENN & LOWRY FEATURED IN THE MARCH 2009 ISSUE OF GEORGIA SUPER LAWYERS MAGAZINE

ARTICLE FEATURING HARRIS PENN & LOWRY APPEARS IN THE ATLANTAN MAGAZINE

Harris Penn & Lowry featured in “The South’s Finest Lawyers”, South Magazine June/July 2008 Issue.

Jeff Harris Featured in "Daily Report" Article

Harris Penn & Lowry New Law Firm

Partners specialize in civil litigation

Savannah lawyers Jeff Harris and Steve Lowry and Atlanta lawyer Darren Penn recently formed Harris Penn & Lowry LLP.

The new law firm specializes in trial practice and has offices in Atlanta and Savannah. The partners have handled cases involving product defects, business disputes and catastrophic personal injury and wrongful death claims.

The firm has taken on some high profile cases, including representing the family of the slain court reporter at the Folsom County Courthouse last year. The firm also represents the family of Lisa Lopez from the pop group TLC who was killed in an SUV rollover in Honduras.

Before forming the new firm, Harris and Penn practiced at an Atlanta trial firm and Lowry practiced with a Savannah firm.

“We decided to start our own firm because we felt we could serve a niche that wasn’t necessarily being served by other firms,” Harris said. “Our focus is on using cutting edge technology to prepare every case for trial to a jury.”

Many firms have expertise in drafting legal documents or preparing a case with a focus on settlement but very few firms “focus intently on putting a case together with an eye toward how the case will be presented to lay people on a jury.” interjected Lowry.

“What really enhances the value of a case is if the other side knows that you are prepared and willing to go to trial,” Harris said.

Harris most recently managed the Savannah office of Scherffius, Ballard, Still & Ayres. He spearheaded the firm’s product liability section and handled cases about defectively designed vehicles. Harris was co-trial counsel in the firm’s $48 million verdict against the Ford Motor Co. in Sasser v. Ford in 2004, the largest product liability in Georgia history upheld on appeal. He also recently served as co-lead counsel in a medical malpractice case resulting in a $3.5 million verdict in DeKalb County.

Harris graduated at the top of his class from Mercer Law School in Atlanta. He received his undergraduate degree from the University of Georgia and an MBA in finance from the Mercer Business School.

Harris recently was recognized by Atlanta Magazine as a Rising Star Super Lawyer. Penn began his career in 1994 as a trial lawyer for State Farm Mutual Automobile Insurance Co. While at State Farm, Penn handled more than 100 trials as lead counsel in cases involving automobile accidents, premises liability, intentional torts, fire claims, theft claims, homeowner’s claims, insurance bad faith, and coverage disputes.

After leaving State Farm in 1997, Penn co-founded Penn & Pate LLP where he represented plaintiffs in a wide variety of personal injury and business tort trials. In 2000, Penn merged his firm with Scherffius, Ballard, Still & Ayres LLP.

Penn received both his undergraduate and law degrees from the University of Georgia.

Lowry began his legal career in Atlanta working with the late Joe Freeman, mostly for insurance companies and large corporations. After moving to Savannah, Lowry joined Middleton, Mathis, Adams & Tate and focused on litigation involving defective products, serious injury claims, class actions and insurance litigation. He was part of a team of lawyers that represented World War II prisoners of was that were used as slave labor by various Japanese corporations.

Lowry left the Middleton firm with two partners who started Carter & Tate, P.C. where he was involved in numerous automotive defect suits.

Lowry graduated cum laude from Northwestern School of Law of Lewis & Clark College in Portland, Oregon. Lowry received dual undergraduate degrees in History and Economics, magna cum laude, from the University of Maryland Baltimore County.