By Dick Dahl
Staff writer
New York jury awarded a brain-injured man and his wife $109 million after their lawyer asked for just $18 million.
The plaintiffs' lawyer, James Wilkens, said the doctors' failure to treat his client in a timely fashion following a seizure caused a brain abscess that resulted in "massive, indescribable memory loss." At the conclusion of a six-week trial, Wilkens asked the jury for $18 million to cover past and future earnings for the man and his wife, both in their 30s.
But after deliberating for two days, the jury returned a $109 million verdict, including $67 million for past and future loss of services for the wife. The trial judge threw out the verdict, saying the defendant doctor was not negligent as a matter of law.
In order to win his case, Wilkens had to overcome a compelling defense argument that four separate doctors reached the same diagnosis and that this indicated the plaintiff's injuries were not foreseeable.
A series of errors
Thomas Dockery was a 34-year-old cable splicer for Verizon when he suffered a seizure on March 11, 2002. While in the emergency room, he received a CT scan, which failed to determine what caused the seizure. Although doctors ordered an MRI, it was not done until three days later.
Reviewing the images, radiologist Dr. Stanley Sprecher found that Dockery's brain contained a "ring-enhancing" lesion that he believed represented glioma, a slow-growing tumor. He referred the Dockerys to Dr. Chris Overby, a neurosurgeon, who agreed with Sprecher's assessment.
Meanwhile, the Dockerys sought a second opinion and consulted with two more doctors - Raymond Harold Coll and Philip Gutin at Memorial Sloan Kettering Cancer Center in New York City. Both physicians looked at the films and agreed with Sprecher and Overby.
The Dockerys decided to proceed with Dr. Gutin, and he slated the surgery to remove the suspected tumor for March 25 - 14 days after the initial diagnosis.
By the day of the surgery, the lesion in Dockery's brain had grown substantially. When Gutin began operating, he encountered pus - which does not ordinarily accompany a tumor - leading him to suspect that Dockery had an abscess. He removed the lesion, but in the aftermath of the surgery, the fluid around the infection increased. According to Wilkens, the pressure forced the fluid downward. This movement resulted in damage to Dockery's hippocampus, the part of the brain most responsible for memory function.
He underwent a second brain surgery to reduce the pressure, but remained in a coma for another month. His wife left her job as a school psychologist to stay with her husband and did not return to work for two years.
Although Dockery has come out of his coma, Wilkens said that his client continues to suffer severe memory problems despite ongoing rehabilitation.
Faulty 'differential diagnosis'
The core of the plaintiffs' case was that Dockery's injury could have been avoided if the doctors were quicker to act. Wilkens said that when a ring-enhancing lesion appears on an MRI, it is "standard practice" for doctors to remove it within 24 hours.
He said that in medical school doctors are taught to follow a procedure called "differential diagnosis" - a process of identifying all possible causes for a condition and then eliminating, prioritizing and treating them. He argued that the initial diagnosis of a glioma that didn't require immediate attention was based on Dr. Sprecher's previous experience with ring-enhancing lesions and not on a proper differential diagnosis.
Once the initial diagnosis was made, he said, the subsequent agreements by several other doctors was a matter of them simply following suit.
When the lesion was first spotted on March 14, "it would have been a piece of cake for them to go in and get it," he said. "It was our position that the increased [fluid build-up] and increased infection size from the 11th and 12th through the 25th was a substantial factor in why [my client] had that post-surgical complication."
Defeating the numbers argument
The plaintiffs settled with Memorial Sloan Kettering prior to trial for $4.4 million. The settlement concluded the suit against the hospital and several other parties, including Drs. Coll and Gutin.
When it came time to select jurors for the trial of the remaining defendants, Wilkens tried to select people who wouldn't be swayed by emotion. He admitted that this may sound counterintuitive, but he believed the defense would focus at least part of its argument on the question, "How could all these doctors be wrong?"
"That's really an emotional argument, not a logical argument," he said. "So I needed people who were analytical."
During the trial, Wilkens countered the defense "numbers" argument with one focusing on "momentum."
"I think Dr. Sprecher started the momentum in favor of the glioma," he said. "As the Dockerys went to each successive doctor, it became easier for each of them to say, 'I agree with those other guys.'"
He said his arguments about momentum and differential diagnosis failures went hand in hand.
"I told the jury that the longer doctors practice, the more they develop what I would call the arrogance of experience," he said. "They say, 'Oh, I've seen this a thousand times; I know what this is.' It's actually those people that the differential diagnosis has to protect us from."
Defense lawyer Patrick Brea did not respond to a request for comment, but Wilkens said the defense argued at trial that "the possibility of brain abscess was so remote they didn't act on it."
Wilkens' medical experts included Dr. J. Robert Kirkwood, a neuroradiologist who has written a leading textbook on clinical neuroradiology. Wilkens said that Kirkwood told the jury that a differential diagnosis on a ring-enhancing lesion must include the possibility of an abscess.
Another key plaintiffs' expert, Dr. Angelo Scotti, an infectious disease expert who practices in Little Silver, N.J., explained Dockery's post-operative complications.
Even though he believed the medical arguments were making an impact on the jury, Wilkens said the most critical testimony was from Karen Dockery, the injured man's wife, who was "very emotional, but very dignified. She retained her composure."
A matter for appeal
At the close of the plaintiffs' case, Judge Duane Hart granted a directed verdict in favor of Dr. Sprecher and Peninsula Radiology Associates and Peninsula Hospital Center, where the MRI was performed. Wilkens said the judge gave no explanation for the action, but allowed the case to proceed against Dr. Overby.
However, following the jury's decision, Judge Hart also set aside the $109 million verdict against Overby, saying he was not negligent as a matter of law.
Wilken has since appealed the directed verdicts in favor of all three defendants.
Wilkens said that he conducted post-verdict juror interviews and learned that they based their decision heavily on Dr. Overby's own testimony that he should have included brain abscess in his differential diagnosis and removed the lesion right away. He said the jurors also recognized that even the defense experts admitted that removal likely would have prevented the swelling that caused the injury.
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AT-A-GLANCE
Verdict: $109 million
no punitives
State: New York
Type of case: Medical malpractice
Trial: 6 weeks
Deliberations: 2 days
Status: The plaintiff has appealed the judge decision to set aside the verdict. He has also appealed the judge’s decision to grant a directed verdict to two other defendants to closing arguments.
Case name: Dockery v. Sprecher
Date of verdict: July 24, 2007
Plaintiff’s attorney: James Wilkens of Duffy, Duffy & Burdo in Uniondale, N.Y.
Defense attorneys: Patrick Brea of Brea Yankowitz in Floral Park, N.Y.; Kenneth Reiser of Bartlett, McDonough, Bastone & Monahan in Mineola, N.Y.; Glen Dopf of Kopff, Nardelli & Dopf in New York City.
January 14, 2008
