Med-mal plaintiff awarded $17M

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An Ingham County Circuit Court jury handed down what’s believed to be among Mid-Michigan’s largest ever medical malpractice verdicts.

In Kathleen J. Bashore v. Sparrow Health System, the jury on Nov. 6 awarded $17 million after finding that missteps by medical providers at Lansing’s Sparrow Hospital during and after a routine procedure caused the plaintiff complications that left her paraplegic and necessitated amputation of her left leg.

Plaintiff’s counsel Chad D. Engelhardt of Goethel Engelhardt PLLC in Ann Arbor claimed surgical sheaths placed in her legs as part of the procedure were left in too long, causing a blood clot.

Cardiovascular surgeon Dr. Ara Pridjian was called to the scene but instead of operating right away to remove the clot, he delayed treatment and then over-inflated angioplasty balloons and stents, according to plaintiff’s counsel.

This caused internal bleeding and poor blood flow to the plaintiff’s legs and spine, leading to gangrene and paralysis, Engelhardt said.

Engelhardt’s wife and law partner Jennifer A. Engelhardt, who also represented the plaintiff, said the jury award, which is subject to reduction under Michigan’s statutory cap on noneconomic damages in med-mal cases, is by no means excessive.

“It’s the amount of money needed just to provide care for [the plaintiff] and give the best quality of life possible,” she said. “To this day, she still has a hole in her back the size of an orange. I don’t think we oversold this case in the least.”

Background

On March 3, 2015, plaintiff Kathy Bashore, age 70 at the time, arrived at Sparrow for a routine outpatient procedure to improve blood flow in her legs and relieve cramps when walking.

The procedure involved inserting surgical sheaths in her legs, which nurses apparently left in too long. This caused a blood clot that traveled down her left leg, turning it blue and cold.

Pridjian apparently was not involved in the initial procedure but was called in to address the clot.

However, the doctor did not perform emergency surgery to remove the clot and restore blood flow. Instead, he delayed surgery, scheduling it as an “add-on, elective procedure” at the end of the day, according to plaintiff’s counsel.

Pridjian also reportedly disregarded critical imaging that showed a large calcium chunk blocking blood flow into the legs. Rather than bypassing the problem, he over-inflated angioplasty balloons and stents in the plaintiff’s fragile blood vessels, which Chad Engelhardt describes as a negligent decision.

“The initial procedure was performed by a different doctor who we didn’t sue,” said Engelhardt. “He ordered that the sheaths be removed but they were left in. His angiogram study showed that the chunk was in a dangerous spot in Kathy’s aorta that made the procedure Dr. Pridjian chose to perform contraindicated.”

The plaintiff’s veins ruptured and cracked as a result, causing serious internal bleeding and poor blood flow to the plaintiff’s spine and leg. The plaintiff became paralyzed and her leg developed gangrene, necessitating amputation several months later.

She also went through 35 subsequent surgical procedures, said Engelhardt. “She will require 24/7 care the rest of her life.”

After the plaintiff filed suit against Pridjian and Sparrow, her attorneys made the defendants a $2.9 million offer of judgment, which the defendants rejected, offering no more than $1 million to settle the case, according to plaintiff’s counsel. Engelhardt was not surprised.

“In med-mal cases, especially when they involve issues of complex surgical techniques, the interpretation of imaging and post-operative critical care, it’s often easy for the defense to raise confusion and smoke-and-mirrors defenses,” said Engelhardt. “And while I can’t speak for [the defense], I guess they wanted to capitalize on the fact that we had an older client with a long smoking history. But she was active and living an absolutely normal lifestyle.”

Meanwhile, according to Engelhardt, Pridjian provided a constantly shifting story both during depositions and in front of the jury, putting the blame at different times on the nurses, his staff and the medical devices. At one point he claimed the patient did not suffer from internal bleeding when imaging showed otherwise.

“Showing that his story was changing and not credible was truly the key to establishing liability, as was the medical evidence in the case,” Engelhardt said.

Legal strategy

Engelhardt says this was a case won not on luck or flashy lawyering, but on its merits and on hard work. This included presenting the case to focus groups seven times.

“We worked very hard to simplify the case, including not calling certain experts we had already paid for and not presenting many aspects of the medical course that took place over the years, instead focusing on the defendant’s conduct and the most major elements of harm,” he said. “We made these decisions based on the focus groups. Sometimes information overload can decrease the chances of a successful verdict.”

Engelhardt’s partner Stephen B. Goethel, who conducted voir dire in the case, said that jury selection was another important part of the team’s approach.

“We didn’t try to advocate the case during voir dire, but instead introduced the setting where the case occurred to find out if people had any experience with the location, the doctors involved, the procedures and the types of problems that occurred as a result of the defendant’s care and treatment,” Goethel says. “We used this structure to get the panel to open up and they did. It helped make Chad’s opening statement far more effective.”

Obtaining the medical records in complete form was yet another critical piece of the strategy, said Jennifer Engelhardt.

“In this case, we didn’t have the records until litigation had been ongoing for quite some time, and we had to obtain a lot of it through the actual use of motion practice, including motions to compel,” she said.

Imaging studies they had to fight so hard to obtain were especially crucial, she continued.

“They proved the defendant didn’t properly prepare for the surgery at issue by reviewing some of the imaging in advance,” she said.

Ultimately, the jury awarded $7.1 million in past economic and noneconomic damages and $9.9 million in future damages. While the verdict is subject to the statutory cap, Chad Engelhardt believes this is the ideal case through which to challenge the constitutionality of the cap itself.

“To have this jury’s reasonable determination as the voice of the community slashed to a fraction of its true value denies the plaintiff her right to a true jury trial,” Engelhardt said.

Engelhardt also believes the cap raises equal protection issues in this context.

“If this same injury — paralysis from the belly down and a lost leg — occurred because Dr. Pridjian hit her in the Sparrow parking lot with his Mercedes, there would be no cap,” he said. “But because it was done with surgical instruments inside the hospital, the damages are severely limited.”

Defense counsel Richard J. Suhrheinrich did not respond to requests for comment on this case.