The Hospital's Own File Already Said She Was Allergic to Latex. Nobody Read It, and the Court of Appeals Affirmed a Verdict the Parties Had Already Quietly Settled.
After trial: Read the figure with care. The jury returned $4,691,000 in June 2009 in Hinds County Circuit Court before Judge Winston Kidd, and the Mississippi Court of Appeals affirmed it on December 13, 2011 in No. 2009-CA-01796-COA. But the parties had already settled in late November 2011, and two days after the opinion issued they jointly moved to dismiss the appeal and vacate it. The settlement figure of approximately $2.8 million comes from a single well-sourced legal blog which reported it as an understanding rather than a confirmed number, so it is approximate and is not confirmed to the dollar. We publish the approximate settlement because it is what was recovered, and we publish the $4,691,000 gross verdict alongside it because that is the figure the reported decision affirms. The $4,691,000 was never paid. On the cap: Miss. Code § 11-1-60 caps non-economic damages in medical-malpractice actions at $500,000, but the act complained of occurred in 2000 and suit was filed in 2001, before the statute, so no cap applied to the $2,253,065.48 the jury awarded for pain and suffering.
Won by Sweet & Associates, PLLC.
Ellen Kelly died after latex exposure during surgery at Baptist Hospital in Jackson. A form from an earlier procedure at the same hospital already recorded her latex allergy. The jury found against the hospital and cleared the physicians, on the reasoning that the nurses and the doctors owed separate duties.
What happened
Ellen Kelly died as a result of latex exposure during a surgical procedure at Baptist Hospital in Jackson.
The fact that carried the case is a piece of paper. A form completed for an earlier procedure at the same hospital already documented that she was allergic to latex. It was in the hospital's own records. Her nurses did not act on it.
The jury separated the defendants. It returned a verdict against Mississippi Baptist Health Systems and exonerated the physician defendants, and the Mississippi Court of Appeals later upheld that split, holding that the doctors and the nurses owed distinct duties and that a jury was entitled to find one breached and the other not.
The damages were itemized: $29,604.52 in funeral and medical expenses, $992,109 for loss of household services, $1,415,880 in lost wages, and $2,253,065.48 for pain and suffering. A total of $4,691,000.
Mississippi's $500,000 cap on non-economic damages in medical-malpractice cases did not apply. The alleged malpractice occurred in 2000 and the suit was filed in 2001, both before the tort-reform statute that created the cap. This is one of a shrinking number of Mississippi medical cases where the jury's non-economic figure was allowed to stand as written.
What actually happened next is the part that does not appear in the reported law. In late November 2011 the parties settled, for a figure reported as roughly $2.8 million. On December 13, 2011 the Court of Appeals issued its opinion affirming the full $4,691,000 verdict, apparently without knowing the case had already resolved. Two days after that, the parties jointly moved to dismiss the appeal and to vacate the opinion.
So the published law shows a clean affirmance of $4,691,000 and the money that changed hands was closer to $2.8 million. We record the recovery, not the affirmance.
Ellen Kelly's family was represented by G. Joseph Diaz Jr., Christopher P. Williams, and Dennis C. Sweet III of Sweet and Associates in Jackson.
Sources
This account is drawn from contemporaneous public reporting and the court record.
- 1.Mississippi Baptist Health Systems, Inc. v. Kelly, Miss. Ct. App. No. 2009-CA-01796-COA (Dec. 13, 2011): the Hinds County Circuit Court, First Judicial District venue and Judge Winston Kidd; the single wrongful-death action for one decedent; the latex-allergy form from the earlier procedure; the verdict against the hospital and the exoneration of the physician defendants on the separate-duties reasoning; the itemized damages of $29,604.52, $992,109, $1,415,880 and $2,253,065.48; and the counsel block naming G. Joseph Diaz Jr., Christopher P. Williams and Dennis C. Sweet III of Jackson as attorneys for the appellee
- 2.Mississippi Litigation Review (archived): the case settled for approximately $2.8 million in late November 2011, the Court of Appeals affirmed on December 13, 2011 without knowledge of the settlement, and the parties jointly moved two days later to dismiss the appeal and vacate the opinion
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