On September 6, 2019, a Harrison County jury in Gulfport returned a plaintiff verdict totaling $2,107,351 in Foote v. Burwell.

Dr. Dudley Burwell replaced plaintiff’s hip at Memorial Hospital in Gulfport. Plaintiff suffered an injury to his left illiac vein during the operation. Plaintiff alleged Burwell used a screw that was too long.

Burwell consulted a vascular surgeon (Dr. Graham) during the surgery. They decided to complete the surgery. Plaintiff’s condition worsened and Dr. Graham performed a repair surgery the same day.

Plaintiff endured a lengthy recovery that included renal failure.

Plaintiff’s theory was Dr. Burwell was liable for the surgical error and Dr. Graham was responsible for not performing a repair before Burwell closed.

Dr. Burwell argued it was a surgical complication. Dr. Graham contended he acted reasonably. The jury found for the plaintiff and apportioned 75% fault to Burwell and 25% to Graham. Here is the jury’s verdict.

The jury assessed the following damages:

  • $994,000 – pain and suffering (subject to $500,000 cap).
  • $880,074- past medicals
  • $107,508 – lost wages
  • $125,769- future disability or impairment.

Dr. Graham worked for the hospital, so the claim against him fell under the Tort Claims Act and was advisory only. On September 18 the Court entered judgment against Dr. Burwell for $1,210,013. Here is the Judgment. 

Joe Sam Owen of Owen, Galloway and Meyers in Gulfport represented the plaintiff. William Whitfield and Kaara Lind of Copeland Cook in Gulfport represented Dr. Burwell. Roland Samson represented Dr. Graham.

Circuit Judge Lawrence Bourgeois presided.

Thanks to the Mississippi Jury Verdict Reporter for telling me about this verdict.

My Take:

I can’t imagine what it was like to wake up from hip replacement surgery and not only were things not better, they were worse. This makes me feel better about my decision to have my hip replacement at the Mayo Clinic in Minnesota.

Not only was my doctor top-notch, but the hospital care exceeded what I’ve seen in Mississippi. When I rang the call button, a real nurse walked in my room immediately. In a Mississippi hospital, it would have sounded like I had been connected via speaker to the drive-thru at Wendy’s and I might not see someone for 15 minutes.

A $500,000 pain and suffering cap on an injury with $880,000 in past medicals seems unfair. It’s been 17 years since the caps were enacted, but there has been no adjustment for inflation. So basically, the caps get lower every year. I expect the legislature to address this issue at around a quarter to never.

  • Gulf Stream

    That’s a matchup of heavyweights in South MS. Joe Sam and Rob are as good as it gets in plaintiff’s med-mal litigation and Bill Whitfield is an extremely well-seasoned defense attorney in that area. And for what it’s worth, Dr. Burwell has (had?) the reputation of being an excellent orthopedic surgeon.

  • Madison Taylor

    I am always interested in these hybrid bench-jury trials. I would be interested to see the judgment on the claims against Dr. Graham once it is entered. In these hybrid trials it seems like the result of the “bench trial” is often remarkably similar to the result of the “jury trial.”

    • Macy Hanson

      The similarities are often remarkable…