Posted on Sep 23, 2007
State court refuses appeal of 2006 malpractice ruling
By Tom Searls
West Virginia’s state Supreme Court upheld a multi-million dollar medical malpractice verdict against a Parkersburg hospital Thursday.
Testimony in the case showed the hospital had turned off operating room safety monitors on a patient who ultimately died.
Hilda Boggs received too much anesthesia while having surgery in 2001 for a broken ankle, causing an overdose that attorney Christopher Regan of Wheeling said could have been prevented if safety monitors had remained hooked up in the operating room.
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“Had alarms been there, someone could have picked up on [the overdose situation] immediately,” Regan said.
Instead, testimony in the Wood County trial showed Boggs had already turned blue prior to those in the operating room noticing. She died six days later.
Supreme Court justices heard arguments from attorneys for Camden-Clark Hospital Wednesday, even allowing the hospital to file legal briefs three times the normal size — or 150 pages — for the case. Justices voted 3-2 to refuse to hear the case, with Justices Elliott Maynard and Brent Benjamin voting in the minority.
It was the second time the court had dealt with the case, which was filed in 2003. Previously, the court had revived the case when Boggs’ attorneys filed the lawsuit three days early, leading Wood County Circuit Judge Robert A. Waters to dismiss the suit. Justices ruled then that the paperwork mistake was not serious enough to force Hilda Boggs’ survivors to refile the medical malpractice lawsuit.
Boggs was a 51-year-old elementary school teacher in 2001 when she broke her ankle. She went into the hospital thinking it was minor surgery.
By the time a jury gave her family a favorable ruling in March 2006, they had already settled with the anesthesiologist in the case. Jurors awarded them $4.8 million, which combined with the earlier settlement made it $6.5 million total.
“It was not just an overdose of anesthesia,” Regan said.Instead, he said what made the case particularly egregious was the safety monitors being turned off in the operating room. He described them as the machines “that go beep, beep, beep in the operating room ... “ Testimony showed that was a regular procedure at the hospital, Regan said.
He said the hospital attempted to mislead the court and cover up those facts.
“It was dramatic to hear a hospital basically telling nurses to destroy their notes,” he said.
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That’s why — after jurors delivered their verdict — Judge Waters went farther. He ordered a $1.3 million sanction against the hospital and its lawyers for misconduct. The hospital can still appeal that ruling.
“I would expect Camden-Clark would appeal that,” Regan said.
In placing the sanctions on the hospital, Waters noted the hospital seemed to have a strategy of covering up throughout the court case.
“By breaching court orders, filing false discovery responses and by giving and permitting to be given inaccurate testimony under oath, and through multiple false statement to the court, the plaintiff and the jury, Camden-Clark engaged in litigation misconduct,” Waters wrote in his order.
“It was an egregious coverup and really an attempted fraud on the court,” Regan said.
In a busy week that saw the court hear arguments at Marshall University in Huntington one day and for two days at the Capitol in Charleston, justices also:
Agreed to hear a suit filed by Dr. Richard Rashid against Dr. Muhib Tarakji. The civil suit had been thrown out when Rashid did not pay a $20 fee in a timely fashion. The court voted 4-0 to hear the arguments, with Chief Justice Robin Davis and Justice Brent Benjamin recusing themselves and retired Cabell County Judge L.D. Egnor sitting in.
Refused on a 5-0 vote to hear an appeal from a man fighting a circuit judge’s order to pay his back child support within 10 days. Jack Clark filed the appeal following Kanawha Circuit Judge Jennifer Bailey Walker’s order that allowed him 10 days to pay $15,700 in past due child support.