Brian Burge & Ryan Niehaus Secured Defense Verdict for Orthodontist
Brian Burge and Ryan Niehaus recently secured a defense verdict on behalf of an orthodontist in a malpractice jury trial held in the Federal District Court for the Western District of Missouri. The plaintiff alleged the defendant improperly placed braces on her resulting in an off-center dental midline. Plaintiff also alleged that the treatment caused facial skeletal asymmetry, temporomandibular joint dysfunction, hearing loss and chronic headaches. At trial, Plaintiff presented the testimony of three general dentists (including a TMJ expert) but did not offer expert testimony from an orthodontist. In contrast, the defense presented testimony from a board-certified orthodontist, as well as an oral maxillofacial surgeon, both of whom testified that the defendant’s treatment plan was appropriate and did not cause TMJ dysfunction. Defense experts also pointed to the failure of the plaintiff’s mother to bring her daughter to regularly scheduled appointments for nearly a year during a critical treatment period as a causative factor in the outcome. At close, plaintiff asked for nearly $3 million in damages. The jury deliberated for less than an hour before returning a verdict in favor of defendant and awarded no damages.
Brian Burge & Kaitlin Marsh-Blake Obtain Favorable Jury Verdict for ED Physician
Brian Burge and Kaitlin Marsh-Blake recently obtained a unanimous jury verdict in Butler County, Kansas in favor of a local ED physician alleged to have caused the death of a developmentally disabled patient. The case centered on the physician’s alleged negligence in failing to properly evaluate and diagnose an adult patient with a ventriculoperitoneal (VP) shunt. The patient had been born with hydrocephalus, a condition that causes the buildup of excess cerebrospinal fluid in the brain. A shunt was placed during infancy to channel excess CSF to the patient’s abdomen. Although the patient had several revisions as a child, it had been more than 20 years since the patient had encountered any problems with the shunt. At presentation to the ED, the patient had complained of persistent headache, nausea, vomiting and a breakthrough seizure that occurred just prior to the patient arriving in the ED. The case was confounded by the fact that the patient had just been in the hospital 48 hours previously with acute pancreatitis. During that stay, the patient’s anti-seizure medication had been withheld for two days and only recently restarted. More importantly, a head CT performed immediately after the patient’s arrival failed to demonstrate any acute brain abnormalities or dysfunction in the shunt tubing. The patient was admitted to the hospital under the care of a hospitalist but became unresponsive within 8 hours of admission. The patient was later determined to have suffered a tonsillar herniation into the brain stem effectively resulting in brain death.
The case was defended on the basis that the ED physician performed the precise test required by the standard of care – Head CT – to evaluate for shunt dysfunction. The defense argued the physician was entitled to rely on the results of the CT test and move forward in evaluating other causes for the patient’s presentation. Although Plaintiffs – the parents of decedent – argued that consultation with a neurosurgeon was required, the defense asserted that a negative head CT in the context of possible shunt dysfunction yields better than a 95% probability that the shunt is working properly. Thus, there was no need for emergent consult with a neurosurgeon and admission to a hospitalist was reasonable. After four hours of deliberation, the jury returned a verdict in favor of the ED physician and awarded no damages to the family.
Brian Burge & Ryan Niehaus Obtain Jury Verdict in Favor of Surgeon
Brian Burge and Ryan Niehaus recently obtained a jury verdict fully in favor of a local surgeon accused of medical malpractice. The matter was tried in the Circuit Court of Jackson County, Missouri – Independence over the course of one week. During laparoscopic surgery to remove a diseased gallbladder, the plaintiff-patient alleged that the surgeon negligently lacerated the patient’s right portal vein in the liver, leading to massive blood loss. The surgeon converted the laparoscopy to an open procedure, called for additional surgical assistance and initiated emergency blood transfusion protocols. The injury was successfully repaired and the gallbladder removal completed. The patient was transferred to the ICU and remained in the hospital for five days before being discharged in good condition. No liver dysfunction or other abnormalities were ever encountered after the patient was discharged. Plaintiff filed suit seeking medical expenses of $150,000 for his extended hospital stay, as well as damages for associated pain, suffering and mental anguish due to the patient’s 9-inch abdominal scar. The patient’s wife also filed a loss of consortium claim based on her husband’s injuries. The defense argued that the surgeon was following the most appropriate and safest surgical technique at the time of the patient’s injury and that an unknown anatomical variation in the patient significantly contributed to the portal vein injury. After approximately one hour of deliberation, the jury returned a defense verdict in favor of the surgeon and awarded no damages to the plaintiffs.
Brian Burge & Ryan Niehaus Obtain Jury Verdict in Favor of Local Surgeon
Brian Burge and Ryan Niehaus recently obtained a jury verdict fully in favor of a local surgeon accused of medical malpractice. The matter was tried in the Circuit Court of Jackson County, Missouri – Independence over the course of one week. During laparoscopic surgery to remove a diseased gallbladder, the plaintiff-patient alleged that the surgeon negligently lacerated the patient’s right portal vein in the liver, leading to massive blood loss. The surgeon converted the laparoscopy to an open procedure, called for additional surgical assistance and initiated emergency blood transfusion protocols. The injury was successfully repaired and the gallbladder removal completed. The patient was transferred to the ICU and remained in the hospital for five days before being discharged in good condition. No liver dysfunction or other abnormalities were ever encountered after the patient was discharged. Plaintiff filed suit seeking medical expenses of $150,000 for his extended hospital stay, as well as damages for associated pain, suffering and mental anguish due to the patient’s 9-inch abdominal scar. The patient’s wife also filed a loss of consortium claim based on her husband’s injuries. The defense argued that the surgeon was following the most appropriate and safest surgical technique at the time of the patient’s injury and that an unknown anatomical variation in the patient significantly contributed to the portal vein injury. After approximately one hour of deliberation, the jury returned a defense verdict in favor of the surgeon and awarded no damages to the plaintiffs.
Dismissal of Anesthesiologist
Brian Burge and Ryan Niehaus obtained dismissal of a medical malpractice lawsuit brought against a radiologist in Missouri. The Plaintiff alleged that in 2018 the radiologist interpreted a radiologic study as showing no significant narrowing in the arteries feeding blood to the Plaintiff’s brain and that because of that interpretation no further treatment was provided to Plaintiff. Plaintiff then suffered a debilitating stroke in 2019. Suit was filed in 2021, three years after the radiologist interpreted the study. The radiologist filed a motion to dismiss arguing that Missouri’s two-year statute of limitations for medical malpractice cases barred Plaintiff’s lawsuit. The Plaintiff argued that the failure-to-inform exception to the statute of limitations applied. The trial court granted the motion to dismiss stating that the failure-to-inform exception did not apply in this situation because Plaintiff was informed of the radiologist’s interpretation.Successful Defense for ER Physicians
Brian Burge and Grace Miller successfully defended a recent wrongful death jury trial against two local ER physicians in Johnson County, Kansas. The defendants were alleged to have negligently evaluated a 72-year-old patient with complaints of episodic chest pain severe enough to awaken him at night. The patient, however, reported no complaints of pain with daily activities and no exertional symptoms such as shortness of breath, fainting or nausea/vomiting. All laboratory work - including three tests performed over a 12-hour period designed to detect evidence of heart tissue damage – were negative. The patient’s presentation was felt to be atypical for cardiac cause but he was advised to see his treating cardiologist within one week for further testing. Unfortunately, the patient passed away two days later from a sudden cardiac arrest. Plaintiff (the decedent’s widow) argued at trial that the defendants should have sought admission of her husband for immediate cardiac work-up at the time of his ER visit, which would have prevented his death. Plaintiff and decedent had been married 52 years and had two adult children. Plaintiff requested $1.3 million in damages. After five hours of deliberations, the jury found in favor of the defendant-physicians and awarded no damages.Update: Dalbey v. Gokhale, M.D.
The Missouri Court of Appeals for the Western District has affirmed the trial court’s decision in Dalbey v. Gokhale, M.D., a case tried in 2019 by Brian Burge and Jana Richards, which resulted in the 3rd largest defense verdict for that year. The case involved allegations against an ER physician concerning a purported failure to diagnose an aneurysm rupture in the plaintiff, which subsequently caused a brain hemorrhage. The plaintiff was required to undergo extensive surgery and was hospitalized in intensive care for several weeks. At trial, plaintiff claimed that he had suffered permanent partial paralysis, severe cognitive decline and lacked the ability engage in meaningful employment. Plaintiff asked the jury to award more than $9 million in damages. After a verdict in favor of the physician, Plaintiff alleged several evidentiary errors on appeal. Oral arguments were held on March 17th and the appellate court issued its decision less than three weeks later affirming the trial court’s decision in its entirety.Dalbey v. Gokhale, M.D., et al.
As part of the continuing effort and commitment of SWR to effectively serve its clients even during these trying times, a number of attorneys in the firm recently appeared before the appellate courts in both Kansas and Missouri to present oral arguments via a virtual platform. SWR remains intent on pursuing all avenues to protect the client’s legal interests even where restrictions remain in place prohibiting in-person courtroom appearances. Brian Burge argued before the Missouri Court of Appeals for the Western District in Dalbey v. Gokhale, M.D., et al., an appeal taken by the plaintiff following judgment in favor of the defendant-physician by a jury sitting in Buchanan County, Missouri. The case involved allegations against an ER physician concerning a purported failure to diagnose an aneurysm rupture in the plaintiff, which subsequently caused a brain hemorrhage. The plaintiff was required to undergo extensive surgery and was hospitalized in intensive care for several weeks. At trial, plaintiff claimed that he had suffered permanent partial paralysis, severe cognitive decline and lacked the ability engage in meaningful employment. Plaintiff asked the jury to award more than $9 million in damages. After a two-week trial, the jury found in favor of the physician and awarded no damages to the plaintiff. Claims of evidentiary error by the trial court have been made on appeal by plaintiff. A decision from the appellate court is expected within 2-3 months.Miltenberger v SEPM et al.
Brian Burge and Stacey Dowd recently assisted in the successful defense of an emergency room physician alleged to have negligently evaluated a patient later found to have Stage IV colon cancer. A seven-day jury trial was held in St. Charles County, Missouri. Plaintiffs were the widow and five adopted children of decedent, who passed away from cancer in September of 2017. Plaintiffs asked the jury to award $8.5 million in damages based on the physician’s purported failure to properly examine and refer the patient after an incidental finding was noted on a CT study suggesting the possibility of a life-threatening condition. Defendants included the ER physician and a medical staffing service. Defendants argued at trial that the decedent had initially presented to the ER with a routine complaint (kidney stone), that he had no other concerning signs or symptoms suggestive of an underlying problem, that appropriate instructions were given to the decedent regarding follow-up on the incidental finding and that no reasonable physician would have suspected cancer at the time. After 90 minutes of deliberation, the jury returned a verdict in favor of defendants and awarded no damages to the plaintiffs. The case represents one of the first civil jury trials conducted in Missouri in the wake of the Covid pandemic.