A Surgeon Operated on the Wrong Side of a Boy's Brain, and Nobody Told His Parents for More Than a Year. A Pulaski County Jury Took Two Hours to Award $20 Million.
After trial: Final and affirmed. The jury returned $20,000,000 on September 24, 2010. The Pulaski County Circuit Court entered judgment at $11,000,000, which is ProAssurance's policy limit and the ceiling of what Arkansas's direct-action statute, Ark. Code Ann. 23-79-210, can reach against a charitably immune hospital's insurer. This is a coverage ceiling and not a finding that the verdict was excessive; no court held it excessive. In ProAssurance Indemnity Co. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689 (Dec. 13, 2012) the Arkansas Supreme Court rejected the insurer's bid for a new trial and the family's cross-appeal to restore the full $20,000,000, finding no errors in the actions of the circuit court. Arkansas does not cap damages: Article 5, Section 32 of its constitution forbids it.
Won by Davis, Bethune & Jones, L.L.C..
A 15-year-old boy went into Arkansas Children's Hospital for surgery to remove the brain tissue causing his seizures. The surgeon opened the wrong side of his head and removed healthy tissue before turning to the correct side. His parents were not told, and learned of it more than a year later during an unrelated examination.
What happened
In August 2004 a 15-year-old boy was admitted to Arkansas Children's Hospital for a procedure intended to make his life easier. He had seizures, and the plan was to remove the brain tissue generating them so that he could reduce his medication.
The surgeon, Dr. Badih Adada, opened the wrong side of his head. He removed tissue from that side, healthy tissue, before turning to the side he was supposed to be operating on.
Nobody told the family. According to the Arkansas State Claims Commission, staff at the University of Arkansas for Medical Sciences fraudulently concealed the facts of the surgery. His parents found out roughly fifteen to eighteen months later, and only because of an unrelated examination. He now lives in a rehabilitation centre.
Arkansas Children's Hospital is charitably immune from suit, which in most states would end the matter. Arkansas has a direct-action statute, Ark. Code Ann. 23-79-210, that lets a plaintiff sue a charitably immune defendant's liability insurer instead. So the family sued ProAssurance Indemnity Company.
The Pulaski County jury deliberated for under two hours and returned $20,000,000.
What happened next is worth stating precisely, because it is easy to describe wrongly. The circuit court cut the judgment to $11,000,000. That was not a remittitur, and no court ever held the jury's $20 million excessive. It was the ceiling of ProAssurance's coverage, and the direct-action statute reaches only the policy. Eleven million dollars was all the insurance there was.
Both sides appealed. ProAssurance wanted a new trial or a reallocation of blame. The Methenys wanted the full $20 million restored. On December 13, 2012 the Arkansas Supreme Court rejected both, finding no errors in the actions of the circuit court. Separate recoveries of $1,000,000 from the surgeon and $500,000 from UAMS were reported alongside.
Pamela and Kenny Metheny, suing individually and as their son's co-conservators, were represented by Phillip J. Duncan of The Duncan Firm in Little Rock, with Grant L. Davis and Thomas C. Jones of Davis, Bethune and Jones as co-counsel and Brian G. Brooks on the appeal.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.ProAssurance Indemnity Co. v. Metheny, 2012 Ark. 461, 425 S.W.3d 689: the opinion, giving the Pulaski County venue, the caption naming Pamela and Kenny Metheny individually and as co-conservators, the rejection of both appeals, and the counsel block for the appellee: The Duncan Firm, Little Rock, by Phillip J. Duncan; Davis, Bethune and Jones, by Grant L. Davis and Thomas C. Jones; and Brian G. Brooks, Attorney at Law, PLLC
- 2.Arkansas Democrat-Gazette, Sept. 25, 2010: $20 million awarded over the 2004 surgery error; the Pulaski County Circuit Court jury, the August 2004 admission to Arkansas Children's Hospital, the operation on the wrong side of the brain, and the concealment
- 3.Insurance Journal, Dec. 17, 2012: the Arkansas Supreme Court upholds the $11 million judgment and rejects both appeals; the reduction was to ProAssurance's coverage limit rather than for excessiveness
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