COMMONWEALTH OF KENTUCKY MCCRACKEN CIRCUIT COURT DIVISION II CASE NO. 16-CI ELECTRONICALLY FILED

Transcription

1 COMMONWEALTH OF KENTUCKY MCCRACKEN CIRCUIT COURT DIVISION II CASE NO. 16-CI ELECTRONICALLY FILED CARL HARRIS PLAINTIFF vs. PLAINTIFF S TRIAL BRIEF 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 * * * * * * * * Comes the Plaintiff, Carl Richard Harris, by and through counsel, and hereby presents the following Trial Brief in advance of the trial of this matter, which is scheduled to commence in the above Court on February 12, 2018, and last for five (5) days. SUMMARY OF FACTS This is a medical negligence case stemming from the events during Plaintiff Carl Richard Harris right proximal radial synostosis resection surgery performed by Defendant Dr. Frederick Thane DeWeese on April 14, The surgery was intended to fix Mr. Harris radioulnar synostosis, caused by an arm injury during his military service in Vietnam around February Unfortunately for Mr. Harris, during the procedure in question, the Defendants, Dr. DeWeese, an employee of his medical group Southern Orthopedic Associates, P.S.C. d/b/a Orthopedic Institute of Western Kentucky, failed to meet the standard of care in the treatment and management of Mr. Harris, thereby causing the Plaintiff his injuries. PC : of

2 Mr. Harris now seeks compensatory damages, in the form of past medical expenses, lost wages, and pain and suffering, both physical and mental, from the Defendants for this deviation from the standard of care. Mr. Harris old war injury did not cause him much, if any, trouble throughout his adult life, which included two tours of duty in the military, as well as jobs in law enforcement, truck driving, and in a grocery store (Banks Market) as a shelf stocker. In fact, prior to this April 14, 2015 surgery, Mr. Harris only had periodic episodes of pain or swelling in his right arm relating to his injury from Vietnam. These episodes would eventually resolve on their own, with rest and elevation, within a day or two. After an episode of his arm swelling in January 2015, which resulted from lifting boxes, Mr. Harris decided to consult with The Orthopedic Institute to see if this situation could be resolved. Dr. DeWeese is the surgeon who examined Richard and who agreed that he would be able to resect a portion of his radius and improve his situation with the April 14, 2015, surgery. During the resection surgery of Richard s proximal radius, Dr. DeWeese acknowledges that he cut through the adjacent ulna, resulting in an iatrogenic fracture of the ulna, when Dr. DeWeese went to lever the radial head from his transection site. Consequently, it is the Plaintiff s expert, board-certified orthopedic surgeon Dr. W. Thomas Gutowski s opinion that the injuries and damages that Richard suffered were caused by Dr. F. Thane DeWeese during this April 14, 2015, surgery, and that if the Defendants had met the appropriate standard of care in the treatment and management of Mr. Harris, Mr. Harris right arm s sensory and motor abilities would not have been compromised and, within reasonable medical probability, he could have avoided additional surgical remediation and follow-up care with healthcare providers following his April 14, 2015, surgery. Dr. Gutowski will explain that PC : of

3 Dr. DeWeese failed to protect the adjacent ulna during his radial head resection, and significantly injured and weakened Richard s ulna, which was not a expected or reasonable outcome. When Dr. DeWeese utilized an osteotome to lever the radial head out, he also levered on this iatrogenic ulna injury, wherein he had compromised approximately 50 percent of the ulna s cortex, and that this resulted in a fracture for which open reduction internal fixation was then required. Following six post-operative office visits with Dr. DeWeese and his office, along with a visit to the Lourdes Hospital emergency room, Mr. Harris was still experiencing a great deal of pain in his right arm, which was rendered useless and resulted in Mr. Harris losing his shelfstocking job at Banks Market. After Dr. DeWeese misread x-rays as negative on July 13, 2015 despite Mr. Harris continued concern that something was wrong. In turn, Mr. Harris opted to get a referral from his primary care physician for a second opinion with Dr. Ted Jefferson. On July 20, 2015, Mr. Harris visited Dr. Jefferson s office, where he learned that the ulnar fracture had not adequately healed and that there was a hardware failure (aka the plate had fractured). Dr. Jefferson referred Mr. Harris to Dr. Philip Coogan s office at the Tennessee Orthopedic Alliance in Nashville, Tenn. Dr. Coogan confirmed that Mr. Harris s condition required an additional procedure with refixation and iliac crest bone grafting, and subsequently performed this surgery on September 4, 2015, at the Baptist Ambulatory Center in Nashville. Mr. Harris care and treatment was managed by Dr. Coogan until May 18, The Defendants theory of the case rests on the expert opinions of two orthopedic surgeons: Drs. Jeffrey Anglen and Richard Smith. In sum, the Defendants experts agree that Mr. Harris ulnar fracture was caused by Dr. DeWeese and that but-for Dr. DeWeese s iatrogenic fracture, Richard would have been much further along in his recovery, not requiring the PC : of

4 subsequent medical care and treatment provided by Drs. Jefferson and Coogan. Nonetheless, both Defendants expert witnesses primarily rely on Mr. Harris injury from Vietnam as the reason that this fracture should have been an expected complication given Mr. Harris socalled abnormal anatomy. This factual issue will best be left to the province of the jury to decide after weighing all of the evidence and trial testimony. ISSUES OF FACT AND LAW The Defendants have filed Motions in limine already, to which the Plaintiff has also already filed his respective responses. These issues are best discussed in those motions and responses, which will be addressed at the January 12, 2018, pretrial conference in this case. The parties have until twelve (12) days prior to the start of trial to make any additional Motions in limine. Plaintiff has also filed a Motion to Strike the Cumulative Experts of the Defendants, to be discussed at the January 12, 2018, pretrial conference. Other than the unresolved motions that have already been filed, the Plaintiff is unaware of any other legal issues at this time. The factual issues in this case are: 1. Whether the Defendants complied with the standard of care; 2. Whether the Defendants conduct was a substantial factor in causing Plaintiff s damages; and 3. The value of Plaintiff s damages. APPLICABLE LAW Appropriate jury instructions have been tendered to the Court by the Plaintiff. PC : of

5 Respectfully submitted, /s/ Nicholas Craddock Michael R. Hance Chandrika Srinivasan Nicholas Craddock HANCE & SRINIVASAN PLLC 8700 Westport Road, Suite 101 Louisville, KY Phone: (502) Fax: Counsel for Plaintiff CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing was electronically served on this the 9th day of January 2018 to the following (a hard copy will not follow): E. Frederick Straub, Jr., Esq. WHITLOW, ROBERTS, HOUSTON & STRAUB, PLLC Old National Bank Building 300 Broadway P.O. Box 995 Paducah, KY Telephone: (270) Fax: (270) rstraub@whitlow-law.com jdeweese@whitlow-law.com tsmith@whitlow-law.com Counsel for Defendants /s/nicholas Craddock Counsel for Plaintiff PC : of