Attorney Robert L. Chaiken of Plano, TX, a member of The National Trial Lawyers Top 100 Lawyers, successfully obtained the verdict in a trial, assisted by Kenneth B. Chaiken and Carrie P. Kitner, Chaiken & Chaiken, and Jeffrey S. Levinger, Levinger PC, Dallas, TX.
The last demand was $4.4 million, and the last offer was $750,000 - a huge mistake by the hospital attorneys. Because of the caps on non-economic damages as provided for in Chapter 74 of the Texas Civil Practice & Remedies Code, the focus at trial was placed on economic harms. Ultimately, at judgment, the non-economic damages awarded at $1.7M will be reduced to about $335,000 as a result of the cap.
Slowly lost vision
Ronald Fortner, 50, a school maintenance supervisor, had open heart surgery at Heart Hospital and woke up fine. About a day later he started to slowly lose his vision until he was completely blind two days after the surgery.
The nurses failed to accurately report what was going on with his eyesight and when they did, the critical care doctor Gary Erwin failed to get an ophthalmology consult and medical intervention in time. Erwin was held 5% liable.
The critical care doctors erroneously believed that medication or anesthesia caused Fortner’s eye issues. By the time they called in an ophthalmologist, it was too late and Fortner had already gone irreversibly blind. He had suffered an anterior ischemic stroke of the optic nerves, which can result from a combination of blood loss during surgery, anemia and low blood pressure.
If he had been timely treated, the blindness could have been stopped and even reversed according to plaintiffs’ expert, neuro-ophthalmologist Alfredo A. Sadun. The defense contended that an eye stroke is a rare condition, unknown to critical care doctors. The surgeon that performed the open heart surgery and his practice group settled out before trial.
The surgeon that performed the open heart surgery and his practice group settled out before trial. The jury found 95% fault with the hospital.
Breakdown of award
Fortner recovered damages as follows:
Past physical pain and mental anguish: $1,000,000.
Future physical pain and mental anguish: $205,000.
Loss of past earning capacity: $409,996.
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Nursing care expenses: $125,580.
Care and assistance expenses in the past: $50,000.
Care and assistance expenses: $3,731,003.
Past Lost Wages: $409,996.
Future Lost Wages: $628,959 to $1,254,269 (depending on age of retirement).
Life Care Plan: $2,893,244 to $4,698,375 (present value).
Past Care and Assistance Expenses: $240,000.
The insurance carriers are Baylor Health Care System Self-Insured Trust and Health Texas Provider Network d/b/a Dallas Diagnostic Association.
Other plaintiff witnesses included John P. Kress, M.D., Chicago, IL (Critical Care),Gary Durham, Dallas, TX (Economist), Susan A. Barnason, Lincoln, NE (Nursing) - not called at trial, and Lori Hinton, DrPH, MPH, RN, CLCP, Houston, TX (Life Care Planner).