Ada County Jury Awards $3.79 Million After Sepsis Death Following Boise-Area Liposuction

On 21 July 2010, Krystal Ballard, a 27-year-old Air Force staff sergeant stationed at Mountain Home, had liposuction and a fat transfer at Silk Touch Laser, a medical spa in Eagle, Idaho. The practice was owned by Dr. Brian Kerr, an anesthesiologist who had been trained in the procedure about three years earlier.

Two days later she called the spa in severe pain. Dr. Kerr examined her, judged the wounds to look normal, and started an antibiotic. On 24 July she asked her husband, Charles, to call 911. She was taken to Elmore Medical Center and then flown to St. Alphonsus in Boise in septic shock. She went into cardiac arrest four times and died on the evening of 25 July.

The Ada County coroner's pathologist found gram-negative bacteria deep in the fat of her right buttock, at the fat-transfer injection site, and no other source of infection in her body. The cause of death was recorded as sepsis with probable toxic shock. The claim against Silk Touch and Dr. Kerr was that the spa had no written policy for disinfecting and sterilizing the reusable handpiece, cannulas and canister used in her procedure, and relied on chemical autoclave indicators without biological ones.

Charles Ballard sued for wrongful death and medical malpractice. The first trial ended in a mistrial after the defense's own standard-of-care expert violated a pretrial order. The district court, Judge Deborah Bail, later found the defense conduct in that trial so outrageous that she had not seen such a pattern in more than three decades of complex litigation, and awarded Ballard fees for the mistrial.

The retrial ran from 16 September to 2 October 2014 in the Fourth Judicial District in Ada County. On a special verdict form, the jury found that the actions of the defendants that breached the standard of care and caused Krystal Ballard's death were reckless. It awarded $3,790,436: $2,540,436 in economic damages and $1,250,000 in noneconomic damages. Judgment was entered on 15 October 2014. The recklessness finding mattered because Idaho's statutory cap on noneconomic damages in injury and death cases does not apply to reckless conduct.

The defense appealed on several grounds. On 4 August 2016 the Idaho Supreme Court affirmed the judgment, finding substantial evidence supporting the verdict, and upheld the award of costs. It vacated only the attorney-fee award for the first trial's mistrial and sent that question back because the district court had not made the findings the rule requires. Bailey & Glasser, LLP, of Morgantown, West Virginia, and Nevin, Benjamin, McKay & Bartlett, LLP, of Boise, appeared for Ballard on appeal, and Scott McKay argued the case before the Supreme Court.