COMMONWEALTH OF KENTUCKY McCRACKEN CIRCUIT COURT DIVISION II CIVIL ACTION NO. 16-CI-00159

Transcription

1 COMMONWEALTH OF KENTUCKY McCRACKEN CIRCUIT COURT DIVISION II CIVIL ACTION NO. 16-CI CARL HARRIS PLAINTIFF v. SOUTHERN ORTHOPEDIC ASSOCIATES, P.S.C. d/b/a ORTHOPEDIC INSTITUTE OF WESTERN KENTUCKY d/b/a SOUTHERN ORTHOPEDIC ASSOCIATES, S.C. and F. THANE DEWEESE, M.D. DEFENDANTS SOUTHERN ORTHOPEDIC ASSOCIATES, P.S.C. AND F. THANE DEWEESE, M.D. S TRIAL BRIEF, JURY INSTRUCTIONS, WITNESS LIST, AND EXHIBIT LIST Electronically Filed Come Defendants, Southern Orthopedic Associates, P.S.C., d/b/a Orthopedic Institute of Western Kentucky d/b/a Southern Orthopedic Associates, S.C., and F. Thane DeWeese, M.D., by counsel, and hereby submit the following: INTRODUCTION This is a medical malpractice action in which Plaintiff Carl Harris alleges that Defendant F. Thane DeWeese, M.D., failed to provide the type of care expected of a reasonably competent orthopaedic surgeon in performing surgery on April 14, Mr. Harris is a Vietnam War veteran who suffered multiple injuries, including a fracture of his right arm, which resulted in deformity of the bones of his right forearm, pain, restricted use, and loss of range of motion. Mr. Harris further injured his arm in 2015 and sought the care of Dr. DeWeese for relief of his symptoms. The surgery was complicated by an unfortunate fracture of a bone in his arm, a complication which Dr. DeWeese believes can occur despite reasonable care. Mr. Harris has PC : of

2 made a very satisfactory recovery. Southern Orthopedic Associates, P.S.C., is named as a defendant merely because it employed Dr. DeWeese. The employment relationship is admitted. FACTS Mr. Harris is a 69-year-old gentleman who has suffered from a number of medical problems throughout his life, all of which was complicated by his service in Vietnam. He proudly served our country, was injured in the process, and has suffered from Post-Traumatic Stress Disorder since his return from Vietnam. Dr. DeWeese recalls that Mr. Harris was a very good patient and is very sorry that the surgical complication occurred. Nevertheless, Dr. DeWeese does not feel that his treatment deviated from the standard of care. Mr. Harris first sought care at The Orthopaedic Institute on January 19, 2015, and saw Ben Brown, P.A., in the urgent care facility. He described that he was lifting a box at work when it fell, and as he tried to grab it with his right arm, he felt a pop in his elbow. The pain was moderate to severe in intensity. X-rays were taken which demonstrate the deformity of the right ulna and radius, a deformity which existed since the fracture and surgery during the war. The ulna and radius are intended to be separated and have a joint near the elbow which allows for rotation of the hand and forearm. Dr. DeWeese believed from his examination, and from x-rays, that the prior surgery, scar tissue, and injuries had resulted in these two bones essentially being fused together, restricting motion and likely causing pain. This condition is known as synostosis. Dr. DeWeese offered surgery to Mr. Harris and indicated that it was his hope that if the source of the pain was the previous synostosis, surgery to resect part of the radial head to permit a more proper articulation of the bones would allow more use and relieve some of the pain. Dr. DeWeese s note specifically states that after his discussion with Mr. Harris preoperatively, Mr. Harris understood that surgery was an effort to relieve the pain but that the elbow might still be a PC : of

3 source of pain at the joint itself, and possibly even require additional surgery or injection at the site. Surgery was performed on April 14, As Dr. DeWeese was attempting to remove the end of the radius nearest the elbow, and the scar tissue, the saw being used apparently nicked the ulna. The problem with the surgery was that it was almost impossible to distinguish where the radius stopped and the ulna began due to the previous deformity. Because of the injury to the ulna at surgery, as the procedure continued the ulna actually fractured in the area where the saw had nicked it. Dr. DeWeese immediately recognized the problem and corrected it by inserting a plate on the ulna to allow the fracture to heal. This is a well-recognized and accepted manner of correcting this type of ulna fracture. It was Dr. DeWeese s hope that the surgery would still be completely successful. In follow-up, Mr. Harris had some difficulty with swelling and pain. Dr. DeWeese continued to see him, hoping that the fracture would heal and that there would be relief from the pain. On July 10, 2015, Mr. Harris saw Brittany Wilson, P.A., at The Orthopaedic Institute, and informed her that he had improved postoperatively, but had shifted the gears in his truck and experienced pain in his elbow and forearm. Dr. DeWeese reviewed x-rays and examined Mr. Harris and did not recognize that the x-rays showed an apparent beginning of a fracture to the plate. Subsequently, Mr. Harris sought a second opinion from Dr. Ted Jefferson, and further x- rays revealed that the plate was, in fact, broken. Mr. Harris sought further care from Dr. Philip Coogan in Nashville, Tennessee, in August Dr. Coogan removed the plate, inserted a new plate, and thereafter Mr. Harris has made a relatively good recovery. Plaintiff s expert, Dr. Thomas Gutowski of Princeton, New Jersey, testified that the alleged failure of Dr. DeWeese to recognize the fracture in the plate upon his last visit with Mr. Harris was of no consequence PC : of

4 because the fracture of the plate is not indicative of medical malpractice, and once the plate had fractured, it was necessary to replace it anyway. PLAINTIFF S CLAIMS Mr. Harris presents a claim for pain and suffering incurred over and above his usual pain and suffering, which resulted by any acts of Dr. DeWeese deemed to be unreasonable in nature. Mr. Harris also claims medical expenses incurred, as well as lost wages. Mr. Harris would have missed some time from work regardless, but after recovery, he does not believe that he can perform his same work as a grocery clerk. Nonetheless, he now makes approximately the same amount of money as a sitter. JURY INSTRUCTIONS Instructions in medical malpractice cases are relatively straightforward. Palmore s original instructions have been followed by this Court, and virtually every other Court across the Commonwealth, without much deviation. It is anticipated that Defendants Proposed Jury Instructions, electronically filed with the Court as a separate document, will be very similar to those proposed by counsel for Mr. Harris. WITNESSES AT TRIAL Defendants are likely to call the following persons to testify at the trial of this matter: 1. F. Thane DeWeese, M.D. 2. Jeffrey Anglen, M.D. 3. Richard S. Smith, M.D. 4. Carl Harris 5. Thomas Gutowski, M.D. 6. Philip Coogan, M.D. PC : of

5 7. Ted Jefferson, D.O. 8. Each and every person whose name appears in the medical records of Carl Harris. 9. Relevant records custodians of the medical records of Carl Harris. 10. Each and every person whose name appears in the discovery pleadings and depositions taken in this case. 11. Each and every witness identified by Plaintiff, whether or not Plaintiff calls the witness at trial. EXHIBITS AT TRIAL 1. All medical records, films, diagnostic studies and medical bills of Carl Harris, including but not limited to records from the various healthcare providers, which have been exchanged by the parties in discovery. Undersigned counsel is prepared to agree that these may be admitted as exhibits without further authentication by any medical record custodian. 2. Each and every document referred to by any of the treating physicians or experts at trial or through deposition testimony. 3. Each party s written discovery responses, and each and every document attached to or referenced in the discovery pleadings and discovery depositions filed of record. 4. Deposition transcripts and or videotapes of depositions taken in this action. 5. Each and every exhibit listed by any other party to this action. 6. Anatomical charts and models to aid witnesses in their testimony and to present the same at trial, including, but not limited to use of Power Point. Any such demonstrative aids will be displayed to counsel for Plaintiff prior to trial. 7. Defendants reserve the right to supplement this exhibit list. PC : of

6 Respectfully submitted, WHITLOW, ROBERTS, HOUSTON & STRAUB, PLLC Attorneys for Defendants By: /s/ E. Frederick Straub, Jr. E. Frederick Straub, Jr. P.O. Box 995 Paducah, KY Telephone: (270) Facsimile: (270) CERTIFICATE OF SERVICE I hereby certify that this 9 th day of January 2018, I electronically filed the foregoing with the Clerk of the Court by using the Kentucky Court of Justice e-filing website, which will send a notice of electronic filing to the following: Michael R. Hance, Esq., Chandrika Srinivasan, Esq., and Nicholas Craddock, Esq., Hance & Srinivasan, PLLC, 8700 Westport Road, Suite 101, Louisville, KY 40242, mikehance@hslawky.com, chandrika@hslawky.com, and ncraddock@hslawky.com, Counsel for Plaintiff. /s/ E. Frederick Straub, Jr. E. Frederick Straub, Jr. PC : of