Jury Awards $1.5 Million to Tucson Man Wrongly Given Radioactive Phosphorus 32 at Hospital

In July 1995, James Monaco went to Tucson Medical Center for a blood test. His doctor had referred him because his red blood cell count was elevated, and wanted to know whether testosterone he had been taking was the cause or whether his bone marrow was overproducing red cells, a condition called polycythemia vera. Dr. Lalitha Ramanna saw him at the hospital. The blood test was never done.

Instead, Monaco was given a five millicurie dose of phosphorus 32, a radioactive substance used to treat polycythemia vera. He did not have that diagnosis and never received it. A few days later his own doctor told him the wrong treatment had been given. Monaco was shocked, frightened and angry. He learned that phosphorus 32 can cause leukemia, and the court record puts his added risk of the disease at roughly three in 100, up from one in 16,000.

The case was tried on the emotional harm that followed. Monaco could not stop thinking he would develop cancer. He slept badly, woke in cold sweats and walked the house from two in the morning until sunrise. His wife, Theresa, described a husband who thrashed in bed and ground his teeth. He lost patience with his adult children and found long visits from his grandchildren hard. A psychologist who treated him for about six months diagnosed post-traumatic stress disorder and testified that Monaco could learn to control it but would never be cured of it.

James and Theresa Monaco sued HealthPartners of Southern Arizona, which operated Tucson Medical Center, and Dr. Ramanna in September 1996. Ronald D. Mercaldo and Anthony J. Wiggins of the Law Offices of Ronald D. Mercaldo, Ltd. represented them, together with James H. Dyer and David W. Babcock of Kinerk, Beal, Schmidt & Dyer. The defense argued before and during trial that Arizona law requires bodily harm before a person can recover for negligent infliction of emotional distress, and that anxiety alone did not qualify. The trial court rejected that argument both times, and the case went to a Pima County jury, which found for the Monacos.

The defendants appealed on three grounds: the bodily-harm ruling, the exclusion of evidence about changes the hospital made after the incident, and the size of the award, which they tied to the Monacos' closing argument. The Arizona Court of Appeals, Division Two, decided the case on June 30, 1999. It held that long-term emotional disturbance of this kind, including diagnosed PTSD, is enough bodily harm under Arizona law. It also found the closing argument was aimed at proving fault rather than sending a message, and that the defense had not objected to it at trial. The court affirmed the verdict and judgment in full.