Posted on Jul 29, 2006
$1.57 million award stands in lawsuit over hysterectomy
by keri brenner
SEATTLE - A judge has let stand $1.57 million of a $1.75 million jury award to a 26-year-old woman who claimed an Olympia-area doctor did a hysterectomy on her without proper consent.
However, the judge granted a new trial to the Centralia hospital where the procedure was done three years ago.
King County Superior Court Judge Jim Rogers, in his ruling Friday, said the evidence did not warrant granting a new trial for Dr. Jeffrey Gabel, an osteopathic physician who performed the hysterectomy in 2003 on plaintiff Summer Goble, then 22.
But he added that misconduct during the trial by Goble's attorney, Ann Deutscher, of the law firm Wiener & Lambka in Renton, was the reason for granting a new trial for Providence Centralia Hospital, which was also originally named in the lawsuit with Gabel.
In granting the hospital a new trial, Rogers reduced the original $1.75 million jury award to $1.57 million by subtracting the amount associated with the hospital's responsibility,
"Obviously, we're relieved and gratified that (the judge) made the correct decision for Providence," said the hospital's attorney, Rebecca Ringer, of the law firm Kingman Peabody Fitzharris and Ringer in Seattle.
Ringer said she thinks Gabel also should be granted a new trial for the same reasons the hospital was.
"I think misconduct by Ms. Deutscher permeated the entire trial as to both defendants," Ringer said.
Rogers also ordered Deutscher, who could not be reached for comment Friday, to pay part of the defendant's legal fees as punishment for misconduct associated with one of the witnesses in the case.
Steve Fitzer, attorney for Gabel, said he would likely file an appeal to the denial of a new trial for Gabel next week.
"It is disappointing, but Judge Rogers has done what he thinks is right, and we respect that," said Fitzer, of the law firm Burgess Fitzer in Tacoma. "We're going to continue with our remedies and our defense."
He added he was "happy the hospital was out" of the jury award and said he was "also relieved and grateful that the court understood the extensive nature of the misconduct on the part of the plaintiff's lawyer." Fitzer said he will be submitting a request for attorney's fees by an Aug. 11 deadline set by the judge.
In addition to being on the staff at Providence Centralia Hospital, Gabel also has courtesy privileges at Capital Medical Center in Olympia. Courtesy privileges allow physicians to see up to 25 patients annually at the Olympia hospital.
Capital Medical Center records show that Gabel performed
116 procedures at the Olympia hospital between 1998 and 2006, none of them hysterectomies.
At the time of the original $1.75 million award on May 26, the jury found that Gabel had committed malpractice for performing an unnecessary hysterectomy on Goble. In addition, the jury found that Gabel had not fully informed Goble of alternative treatments that would have been less invasive before she signed a consent form acknowledging that she knew the hysterectomy would make her sterile.
Goble, the daughter of the Packwood fire chief and a mother of two, testified she was distraught over her inability to have more children.
A hysterectomy involves the removal of the uterus and is most often done on older women. A study earlier this year by the state Department of Health found that Providence Centralia Hospital had one of the highest percentages in the state for hysterectomies done on women 30 years old and younger between 1999 and 2004.
The judge, in his ruling Friday, said Deutscher committed misconduct in her closing argument when she targeted the testimony of Steve Burdick, administrator for Providence Centralia Hospital. Burdick had testified that he had not participated in reviewing whether certain procedures should be done at the hospital because "as a non-physician, I am not in a position to be able to judge the appropriateness of the surgery," court records say.
The next day, Deutscher told the jury, according to court records: "When you walk into a hospital ... What do you assume? You assume that the people who are running the hospital know what's going on. ... Yesterday, it was said by Mr. Burdick, there was testimony that he doesn't know even who is watching. He's in charge of this hospital."
The judge said that strategy was improper because Burdick did not have the expertise to stop negligence when "he played no role in medical oversight."
The state health department has launched its own independent investigation in the case. The department is referring all medical records of Goble and other women who have come forward since the trial to an osteopathic physician who sits on the state review board, said Lisa Noonan, the health department's disciplinary manager.
There was no immediate word Friday whether Deutscher would appeal the new trial for Providence Centralia Hospital. However, earlier this month, she said she would appeal if a new trial were granted for Gabel.
In addition to the $1.57 million judgment against Gabel, the judge ordered the doctor to pay interest on the award dating back to June 9, when the first motion from Goble was filed. The interest amounts to $14,728, Rogers' assistant said Friday.
Keri Brenner covers Thurston County and Tumwater for the Olympian. She can be reached at 360-754-5435 or [email protected]