$552,581VerdictReduced from $1.8 million

Hospital Liable in Death of Man Given Ativan Despite a Charted Allergy, Damages Capped on Appeal

Verdict · 72nd District Court, Lubbock County, Texas (No. 2005-533.287) · 2008

After trial: Reduced on appeal: on July 28, 2010, the Seventh Court of Appeals upheld liability but applied Texas damage caps, and the Texas Supreme Court denied review in April 2011. The ranked $552,581 adds the $17,526.97 economic award to the $250,000 noneconomic cap and the $285,053.94 exemplary cap, before interest and credits.

Won by Witherite Law Group.

A Lubbock County jury found a Lubbock specialty hospital negligent and grossly negligent after nurses gave a 78-year-old patient two doses of Ativan despite a charted allergy, and he died days later. The jury awarded his estate and four sons about $1.8 million, most of it exemplary damages tied to the hospital's hiring of a nurse previously disciplined in Colorado for the same conduct. In 2010 the Amarillo Court of Appeals upheld the liability and gross negligence findings but held that Texas damages caps limited noneconomic damages to $250,000 and exemplary damages to $285,053.94, and sent the case back for a recalculated judgment. The Texas Supreme Court denied review in 2011.

What happened

Jacob Perea was a 78-year-old widower in Lubbock, Texas, with four sons. He had heart disease, respiratory problems and diabetes, but until a fall in November 2004 he spent his days mowing and keeping up 17 acres of land his sons owned. The fall left him with a slight fracture in his neck, and he was treated at Covenant Medical Center.

His records there carried a warning. After sedation for an MRI, Covenant staff noted a bad reaction to Ativan, and his discharge summary listed him as allergic to lorazepam (the drug's generic name) and to morphine. He was discharged in stable condition, neurologically intact, to Southwest Regional Specialty Hospital, a skilled nursing facility run by THI of Texas at Lubbock I, LLC. The admitting nurse there recorded the Ativan allergy on his assessment, put an allergy sticker on his chart and an allergy bracelet on his wrist.

On December 18, 2004, at 4:00 p.m., he was given 2 mg of Ativan. At 1:30 a.m. on December 19, when he was agitated, a nurse gave him a second 2 mg dose. At 7:15 a.m. he was found with no vital signs. He was revived, intubated and taken back to Covenant with respiratory failure. His condition did not improve over the following week, and he died after his family decided to take him off the ventilator.

The family sued. Amy K. Witherite of Eberstein & Witherite, the firm now known as Witherite Law Group, represented the estate and the four sons. The case turned on two questions: whether the drug caused his death, and what the hospital knew about the charge nurse alleged to have written the unauthorized Ativan order. The family's expert testified that the second dose over-sedated him, so that his breathing grew shallower until his heart failed. The hospital's expert said he died of a heart attack. On hiring, the nurse testified that he had been placed on probation by the Colorado nursing board in 1997 for giving Ativan to a patient without a physician's order, and that the hospital's nursing director knew of it when she recruited him in 2002.

In 2008 a jury in the 72nd District Court of Lubbock County found the hospital 90 percent and a pharmacy staffing company 10 percent responsible, and found the hospital grossly negligent. It awarded the estate $159,718.40 for pain and mental anguish, medical bills and funeral costs, $100,000 to each son, and $1,250,000 in exemplary damages, about $1.8 million in all. The trial court cut the medical expense award to the amount actually paid and entered judgment of $1,696,895.50 against the hospital.

The hospital appealed. On July 28, 2010, the Seventh Court of Appeals in Amarillo upheld the findings of negligence, causation, negligent hiring and gross negligence. But it held that the estate and the sons count as a single claimant under Texas law, that noneconomic damages against a health care institution were capped at $250,000, and that exemplary damages were capped at $285,053.94. It reversed the judgment and sent the case back for a new one that applied those caps, credits and interest. One justice agreed with most of the ruling but would have rejected the negligent hiring theory. The Texas Supreme Court denied the hospital's petition for review in April 2011.

Sources

This account is drawn from contemporaneous public reporting and the court record.

More proven verdicts from Witherite Law Group

All Witherite Law Group proven verdicts →
$270,300Reversed on appealMedical MalpracticeTX

A Lubbock County jury found Bender Terrace nursing home 51 percent responsible for pressure sores that worsened while a quadriplegic resident was in its care in 2000. It awarded $350,000 for pain and suffering and $180,000 in medical expenses, and the judgment was $270,300 after fault was apportioned. The Amarillo court of appeals upheld the pain and suffering award but reversed for unsegregated medical expenses and a missing settlement credit, and remanded for a new trial.

2003 · Lubbock County, Texas district court (appeal No. 07-04-0084-CV)Read the full story →

Related medical malpractice verdicts

$366 millionVerdictReduced from $524 millionNV

A Clark County jury ordered Health Plan of Nevada and Sierra Health Services to pay $524 million after finding the UnitedHealth Group subsidiaries negligently credentialed a gastroenterologist whose unsafe injection practices at his Las Vegas endoscopy clinics caused the largest medically caused hepatitis C outbreak in American history.

Eglet Adams2013 · Clark County District Court, Las VegasRead the full story →
$330.07 millionVerdictReduced from $2.23 billionNot collectableMO

Georgia Hayes, a Kansas City area ovarian cancer patient, sued pharmacist Robert Courtney after learning he had diluted the chemotherapy drugs used in her treatment. A Jackson County jury found Courtney liable and awarded Hayes $225,571,439 in compensatory damages and $2 billion in punitive damages, the first of hundreds of similar suits against Courtney to reach trial. The trial judge later found the award excessive and cut it by remittitur to $330,071,439, and that reduced judgment stood. Hayes herself and the case reporter covering the verdict both said she was unlikely to ever collect a significant portion of it.

Ketchmark & McCreight, P.C.2002 · Circuit Court of Jackson County, Missouri (Kansas City)Read the full story →
$330 millionVerdictReduced from $2.2 billionNot collectableMO

A Kansas City jury awarded ovarian cancer patient Georgia Hayes $225 million in compensatory damages and $2 billion in punitive damages against pharmacist Robert Courtney, who had diluted chemotherapy drugs for profit. The trial judge later reduced the award to roughly $330 million, and Hayes collected almost nothing from Courtney himself, whose assets had been seized by the federal government. Courtney was sentenced to 30 years in federal prison, and drug makers Eli Lilly and Bristol-Myers Squibb later paid $71 million to settle victims' claims.

Davis, Bethune & Jones, L.L.C.2002 · Jackson County Circuit Court, MissouriRead the full story →
$307.6 millionVerdictOn appealNot collectableMI

A Detroit federal jury awarded former Michigan inmate Kohchise Jackson $307.6 million after the state's for-profit prison health contractor refused to pay for the $919 surgery that would have reversed his colostomy.

Marko Law Firm2026 · U.S. District Court, Eastern District of Michigan (Detroit)Read the full story →