April 15, 2010 -
Michael Appel Wins Retrial for Medical Malpractice Plaintiff
SRBC partner Michael Appel recently succeeded in persuading a superior court judge that a jury's verdict for the defendant doctor in a medical malpractice case was "against the weight of the evidence," such that the plaintiff was entitled to a new trial.
The case involved a 46 year-old man who suffered a knee injury while playing basketball. He underwent emergency surgery to repair a ruptured tendon, and was discharged. Days after the surgery, he was found dead in his home, from a massive pulmonary embolism resulting from deep-vein thrombosis caused by the operation. It then emerged that six years earlier, the patient had undergone the same surgery, and on that occasion too had suffered serious complications from deep-vein thrombosis. This history was shown in medical histories taken by two nurses prior to the second surgery. But the treating surgeon did not review these histories or discuss the subject with the nurses, and in his own interview with the patient inquired about the surgery but not whether the patient had suffered any complications. It was agreed at trial that the patient's prior history would have required different treatment and monitoring than he received. The key dispute was whether the applicable standard of care required the surgeon to do more to learn about the patient's surgical history.
The jury returned a verdict for the surgeon, but sent a note indicating that it had struggled with the evidence presented as to the standard of care. Following trial Michael moved on behalf of the patient's estate for a new trial, arguing that the verdict was so much against the weight of the evidence that this was a rare case in which the court should grant a new trial. The trial judge agreed--noting in particular the rather equivocal testimony of the defense expert as to what inquiry of the patient by the surgeon the standard of care required. A new trial will be scheduled soon.
Read the Massachusetts Lawyers Weekly article here.