He Went In for Hernia Mesh Removal and Woke Up With a Leg That Would Not Hold Him. The Surgeon Had Cut the Femoral Nerve and Never Noticed. The Defense Offered $200,000; an Oklahoma County Jury Returned $17.5 Million.
After trial: The $17,500,000 verdict of April 7, 2022 was entered as a judgment on May 13, 2022 and was never reduced by any court: Dr. Bender's motion for a new trial or remittitur was struck as settled after a release and satisfaction of judgment was filed on July 6, 2022. No cap applied, because OU Medicine, Inc. had been dismissed a week before trial (no Governmental Tort Claims Act exposure) and Oklahoma's noneconomic cap was struck down in Beason v. I.E. Miller Services (2019). The dollar split between the Fultons is not on the OSCN docket, where the verdict forms are sealed; it comes from an independent legal-industry report. Collectability: the judgment was satisfied on terms that are not public, so this is a $17,500,000 judgment satisfied on confidential terms, not $17,500,000 paid.
Won by Bradley & Loggin, PLLC.
On July 2, 2018 Justin Fulton, 32, had surgery to remove hernia mesh. He woke with his right leg numb and fell to the floor when he tried to stand, because his right quadriceps would not work. Nerve studies showed no motor or sensory function in his right femoral nerve: the surgeon had cut into it and not recognized it. The injury is permanent. The defense offered $200,000. On April 7, 2022 an Oklahoma County jury voted 11 to 1 for the Fultons and awarded $17,500,000, entered as a judgment in May and released and satisfied in July 2022.
What happened
Justin Fulton was 32 when he had surgery on July 2, 2018 to remove hernia mesh. Dr. Jeffrey S. Bender of OU Physicians performed it.
Fulton woke with his right leg numb. When he tried to get out of the recovery-room bed he fell to the floor, because his right quadriceps was limp. An EMG and nerve conduction study found no motor or sensory function at all in his right femoral nerve. The surgeon had cut into the nerve during the operation and had not recognized it.
The damage is permanent: constant nerve pain, no ability to extend the right leg, an unstable right knee, and a prosthetic device to stand.
Justin and Amy Fulton sued Bender and OU Medicine, Inc. in the District Court of Oklahoma County, No. CJ-2020-1157. Because the defense could not explain how the femoral nerve came to be injured, Judge Don Andrews instructed the jury on res ipsa loquitur. A week before trial OU Medicine was dismissed by joint stipulation, which left Dr. Bender as the only defendant and took any public-entity cap out of the case. Before trial the defense had offered $200,000; the Fultons had offered to settle for Bender's policy limits.
The trial ran four days. On April 7, 2022, after about an hour of deliberation, the jury returned 11 to 1 for the plaintiffs: $14,000,000 to Justin Fulton and $3,500,000 to Amy Fulton for loss of consortium, $17,500,000 in all. The journal entry of judgment was filed May 13, 2022. Bender moved for a new trial or, in the alternative, remittitur. Before that was heard the parties resolved the case: a release and satisfaction of judgment and a dismissal with prejudice were filed on July 6, 2022, and the court struck the motion as settled.
Eric Loggin and Dustin Bradley of Bradley & Loggin in Tulsa tried the case for the Fultons.
Oklahoma has had no cap on noneconomic damages since the Oklahoma Supreme Court struck the statutory limit in Beason v. I.E. Miller Services in 2019, so nothing in the verdict was trimmed by statute. What the Fultons actually received under the July 2022 release is not public.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.OSCN docket, Fulton v. Bender, District Court of Oklahoma County No. CJ-2020-1157, Judge Don Andrews: the caption naming Justin and Amy Fulton against Jeffrey S. Bender, M.D. and OU Medicine, Inc.; the March 31, 2022 dismissal of OU Medicine; the April 7, 2022 sealed verdict forms for each plaintiff; the May 13, 2022 journal entry of judgment; the May 27, 2022 motion for new trial or remittitur; the July 6, 2022 release and satisfaction of judgment and dismissal with prejudice; the August 11, 2022 minute striking the motion as settled; and the attorneys-of-record block naming Eric Loggin of Bradley & Loggin, PLLC, with the trial minute recording Eric Loggin and Dustin Bradley for the plaintiffs
- 2.MedicalMalpracticeLawyers.com: the $14 million and $3.5 million split, the 11 to 1 vote after about an hour, the four-day trial, the July 2, 2018 hernia mesh removal by Dr. Jeffrey Bender of OU Physicians, the femoral nerve injury and its consequences, the $200,000 defense offer, and the res ipsa loquitur instruction
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