Today, in Hrynkiw v. Trammell,
No. 1101099, the Alabama Supreme Court affirmed a judgment entered in a med-mal
case. The jury awarded $1,650,000 to the injured patient and $500,000 as to wife’s
loss-of-consortium claim.
Following a fusion surgery, Trammell
experienced symptoms of cauda equine syndrome (“CES”). Dr. Hrynkiw was
immediately informed of the symptoms but waited ten days to perform a second
surgery. The second surgery provided no relief. Trammell was permanently
partially disabled – “He has very limited mobility because of severe weakness
in his hips and legs, and he is impotent and suffers from urinary and fecal
incontinence.”
Trammell asserted both medical
negligence in performing the initial surgery and post-operative medical
negligence in not timely addressing the CES symptoms. As to both
assertions, Dr. Hash was Trammel’s expert witness. On appeal, Hrynkiw
argued that the post-operative claim should not have been presented to the jury
because, as to the issue of causation, Dr. Hash’s testimony was pure
speculation. Apparently, Hrynkiw was making a good count/bad count
argument in order to secure a new trial.
At trial, Dr. Hash detailed that timely
addressing CES symptoms most often eliminated permanent CES or reduced the
severity of the CES; that, by waiting more than 48 hours to perform the second
surgery, Hrynkiw breached the standard of care; and that the breach probably
caused harm to Trammell by worsening his outcome. Dr. Hash relied on
statistics that with timely care, 80% of patients make either a complete or
partial recovery.
Hrynkiw argued that, in his pre-trial
deposition, Dr. Hash acknowledged that he could not guarantee the Trammel’s
ultimate outcome would have been different if the second surgery had been done
with 48 hours. The Supreme Court rejected Hrynkiw’s argument in detail.
Also, Hrynkiw argued that the trial
court erred in allowing hearsay testimony under the learned-treatise
exception. Dr. Hash testified that he based his opinions on his
professional experience and on the medical records, and did not rely on medical
treatises. Hrynkiw argued that the exception applies only if the expert
relied on them in reaching his opinions. The Alabama Supreme Court
disagreed and found that, under Rule 803(18), medical treatises could be used
to bolster the expert’s opinions.
The Birmingham News wrote an excellent piece on the
jury trial about two months ago which was subsequently published on al.com. Click on the link below to read:
http://blog.al.com/businessnews/2011/03/22_million_jury_award_against.html
