Posted on Aug 12, 2006
$30 million awarded in death of physician
Doctor died after knee surgery at Lexington Medical Center
By JOHN MONK
Archive | Medical mistakes kept secret
Archive | Medical errors kill, injure S.C. patients
Lawyers expect an appeal in the award to the estate of Dr. Asif Sheikh, who died in January 2002.
A Lexington County jury Friday awarded $30 million to the estate of Dr. Asif Sheikh, who died in 2002 in unusual circumstances at Lexington Medical Center hours after he was operated on.
The jury deliberated three days before deciding that Lexington Medical Center — the county’s largest hospital system, with 4,000 employees — was responsible for Sheikh’s death, along with Dr. Gail Capell, the anesthesiologist for his operation.
The $30 million was one of the highest, if not the highest, jury awards in Lexington County within memory and one of the highest ever for medical malpractice in the state, lawyers said.
But the award is sure to be appealed, lawyers said.
Lexington Medical Center lawyer Weldon Johnson said that although the hospital on occasion has settled cases, “In my 25 years of representing the hospital, this is the first jury verdict ever against it.”
During the civil trial, Sheikh family lawyer Geoffrey Fieger of Detroit said a lethal cocktail of narcotics delivered to Sheikh during what was supposed to be a routine operation killed him instead. Defendants argued Sheikh, 58, died of an undetected heart problem or from the stress of recovering from double knee-replacement surgery.
Fieger also alleged what he called a “massive cover-up” by the hospital. He repeatedly called the jury’s attention to the disappearance of original hospital records such as X-rays and a medical chart of Sheikh’s last hours.
The hospital disputed the allegations, saying records had been inadvertently lost. A computer-scanned copy of Sheikh’s chart available to the jury had the same data as the original, hospital officials said.
But in instructions to the jury earlier this week, Judge Diane Goodstein charged that, “Where evidence is lost or destroyed by a party, you may infer ... that the evidence that is lost or destroyed would have been adverse to that party.”
The $30 million award was for actual damages, including the loss of Sheikh’s income (said during trial to be about $470,000 a year), and loss of his companionship and role as a father. During the four-week trial, Sheikh’s widow, Maggie, and their four children testified about what a wonderful husband and father he had been. Fieger asked the jury to levy $50 million in punitive damages to punish and serve as a warning against negligence. But the jury only awarded actual damages.
The jury of six men and six women found no liability against defendant Midlands Orthopedics or against Midlands surgeon Dr. Tom Gross.
Sheikh had been a member of the hospital’s board of trustees and chief of the hospital orthopedics board and belonged to the Midlands Orthopedics group.
Fieger, known nationally for his high jury awards and as a legal television commentator, was pleased with the award.
“The jury got things right,” he said Friday by telephone. “They showed, contrary to the beliefs of doctors and the Lexington hospital, that Lexington County jurors are determined to have the best medical care possible, and they will not put up with anything less.”
During final jury arguments this week, Fieger said the Lexington hospital was counting on a long tradition of penny-pinching county juries giving low awards.
“They believe that juries in Lexington County hate lawyers, hate lawsuits, more than they like the truth!” Fieger shouted Wednesday morning in a final argument. “You have an opportunity to say, ‘Never again.’ You have an opportunity to ring a bell for justice ... to make it hurt.”
Not only had the hospital destroyed original records of what happened, Fieger said, Sheikh had been given doses of narcotics that caused him to stop breathing. Even so, Fieger said, Sheikh could have been saved if hospital staffers had monitored him better. Sheikh died 17 hours after surgery.
Hospital and physician witnesses strongly denied the allegations. They said Sheikh was given appropriate medicine and post-operation care and likely died from a fatal heart arrhythmia.
The $30 million award is already an object of dispute among opposing lawyers.
The jury found that Lexington Medical Center bears 98 percent of the responsibility for the $30 million award and Capell, the anesthesiologist, 2 percent.
But because of the complicated legal framework in which the trial was held, the hospital — or rather, its insurer — won’t pay anywhere near that amount.
First, the hospital’s attorney, Johnson, and Fieger reached an agreement early in the trial that limited the hospital’s exposure to $270,000 if the jury found hospital nurses, and not doctors, were liable. Friday, the jury ruled that hospital nurses and other nonphysician staffers bore responsibility for Sheikh’s death.
Secondly, no matter what the jury had ruled, under state law regarding liability of public hospitals, the county-operated hospital is only liable for a maximum of $1.2 million in damages.
In making the agreement, Johnson limited his client’s potential exposure. But he also agreed not to present a robust defense for the hospital. For example, he agreed to limit his closing argument to 10 minutes. The agreement was kept from the jury but approved by the judge.
After the jury verdict, Fieger said that under state law, Capell’s insurance carrier is obligated — because the hospital will not have to pay its 98 percent of the jury award — to cover the balance of the $30 million award.
However, Capell’s lawyer, former circuit judge John Hamilton Smith, said his client’s liability was only $600,000. That amount is two percent of $30 million — the jury’s assessment of Capell’s share of the responsibility for Sheikh’s death, Smith said.
Fieger had saved his most scathing jury remarks for Capell, who he said had “killed” Sheikh and then “lied” in her testimony.
Smith defended Capell after the verdict. “Dr. Capell did not do anything that would constitute negligence in any way whatsoever.”
Opposing lawyers are expected to make post-trial motions before the judge by month’s end. The size of the jury award, and who should pay it, are sure to be among the motions, lawyers said.
Goodstein will then rule on the motions, setting the stage for an appeal to the S.C. Court of Appeals, then possibly the state Supreme Court.
George Beighley, attorney for Gross, the surgeon, issued a statement Friday on behalf of his client and Midlands Orthopedics, which said in part, “... patient care was never compromised by our practice or by the surgeon in this case. We continue to express sympathy to the family of Dr. Sheikh. ...”
The $30 million award astonished South Carolina lawyers who make their living taking big corporations to court on behalf of individuals who claim they have been wronged.
“Getting a Lexington County jury to give a $30 million verdict is a once-in-a-century happening against a hospital,” Columbia trial attorney Dick Harpootlian said. “Even if the award is reduced, it’s a huge black eye for the hospital.”
Hospital spokeswoman Margaret Gregory said Friday hospital officials were “disappointed and disagreed with the jury verdict. We are proud of the excellent care that our physicians and nurses provide for our patients.”
Following the verdict, Judge Goodstein shook hands with some jury members and hugged others. She thanked the jury for their four weeks’ service: “You are where the rubber meets the road as long as we have a democracy.”
Earlier in the week, in charging the jury, Goodstein said, “When a hospital treats a patient, the law does not require perfection, but reasonable care that meets good medical standards.”
In recent years, the state General Assembly, in efforts to limit the amount of money businesses and hospitals pay to their victims, has capped certain jury awards. However, Sheikh’s death happened before the most recent caps were passed into law.