Mississippi Litigation Review & Commentary : Mississippi Personal Injury Lawyer & Attorney : Phillip W. Thomas Law Firm : MS Litigation Review & Commentary

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A Hinds County Circuit Court jury returned a defense verdict on Monday in a medical malpractice case tried before Judge Winston Kidd.

Here is the Complaint in the case filed by James McClure against Dr. Anthony Petro, Dr. Clark Ethridge and Mississippi Baptist Medical Center. The Complaint alleges that Dr. Petro perforated plaintiff's bowel during a laparoscopic procedure and that defendants breached the standard of care in failing to diagnose and treat the perforated bowel.

Dr. Ethridge was quickly dismissed from the case via a summary judgment motion. I can't tell from the docket when Baptist was dismissed, but it appears that Baptist was not at the trial.

The trial lasted one week and one day. The jury's verdict was unanimous. Here is the jury's hand-written verdict. I hear that the jury thought that the plaintiff's case was very weak.

Salvador Bivalacqua of New Orleans represented the plaintiff. From the docket, it appears that Walter Johnson and Mildred Morris from Watkins & Eager represented the Dr. Petro. [correction: It was actually Jim Becker who tried the case for the defense with Walter Johnson. Becker is a legendary veteran of the Mississippi defense bar.  Mildred Morris was not involved in the trial].

If anyone has more info. on this verdict I would be happy to report it. This is an example of a stealth defense verdict in a medical malpractice trial. This happens a lot. I heard about the verdict only because my wife is friends with the spouse of one of the jurors.  

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There was a $5 million verdict on Friday in a Jones County silica trial with 10% fault assigned to the defendant. Here is the Harris Martin article on the verdict:

ELLISVILLE, Miss. –– A Mississippi jury has awarded $5 million to a silica plaintiff, assessing 10 percent liability to American Optical, sources have confirmed to HarrisMartin. McGilberry v. Pangborn Corp., No. 2007-16-CV5 (Miss. Cir. Ct., Jones Cty., Dist. 1.).

The Mississippi First Judicial Circuit Court for Jones County jury reached the verdict on Friday, Aug. 6, sources said. Judge Billy Joe Landrum presided over the one-week trial, which ended after approximately four hours of jury deliberations.

The underlying claims were brought by John McGilberry, who claimed that his work as a jackhammer demolishing concrete exposed him to respirable silica. McGilberry also alleged that he was exposed to silica as a bystander while sandblasting for seven days in the 1970s.

As a result of this exposure, McGilberry claimed that he eventually developed pneumoconiosis.

American Optical, whose 1050 and 1010 disposable respirators were at issue in the case, was the lone remaining defendant at the time of the verdict. The company argued that the plaintiff had failed to properly identify their product; that the exposure history was insufficient to cause silicosis; and that in the plaintiff’s 30-year medical history, he was diagnosed and treated for sarcoidosis but silicosis was never mentioned.

Testifying on behalf of the plaintiff were Steven E. Haber, M.D., pulmonology; Vernon E. Rose, Dr.PH, industrial hygiene; Frank Giles, life care planner; and Charles Dennis, economist.

Testifying on behalf of American Optical were Robert M. Middleton, M.D., pulmonology; David R. Derr, M.D., radiology; Joseph Zdrok, corporate representative; and Dr. David Anderson, industrial hygiene.

Counsel for the plaintiff were R. Allen Smith Jr., Patrick Malouf and John T. Givens of Porter & Malouf in Jackson, Miss.

American Optical was represented by Walter T. Johnson and Michael O. Gwin of Watkins Eager in Jackson, Miss.

Additional Information:

Sources are telling me that $2.5 million of the verdict was for non-economic damages. The defendant wants to reduce the non-economic damages under the cap to $1 million and then apply the 90% reduction due to the defendant being only 10% at fault. This would make the judgment $350,000 instead of $500,000.I do not know if that is the correct way to apply the cap. My guess is that it's not.  

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On Wednesday the Clarion-Ledger reported a $500,000 verdict against University of Mississippi Medical Center (“UMC”) in a Hinds County Circuit Court bench trial. Judge Tommie Green presided in the case and rendered the verdict.   

The case resulted from the 2005 death of 28–year old Tamika Foster less than 48 hours after the emergency delivery of a baby. The case appeared to focus on UMC’s failure to consult a hematologist despite a low blood platelet count. The article explains:

An autopsy determined Foster died as a result of myocardial ischemia with arrhythmia, secondary to thrombotic thrombocytopenia purpura with a history of HELLP.

Thrombotic thrombocytopenia purpura, a much more deadly illness than HELLP, was never diagnosed prior to Foster's death, Green said

Medical experts have defined TTP as a rare disorder where small blood clots form suddenly throughout the body, leading to a sharp decrease in the number of platelets in the blood stream.

The case was decided in a bench trial because the Mississippi Tort Claims Act requires bench trials in lawsuits against government entities, which includes UMC. The Act also places a hard-cap recovery limit of $500,000 for both economic and non-economic damages. Judge Green set the Plaintiff’s damages at $1.2 million and then reduced the verdict to $500,000 to comply with the Tort Claims Act.

David Dunbar of Jackson represented the Plaintiff. Walter Johnson of Watkins Eager in Jackson represented UMC.