Medical Malpractice – How Would Liability Caps Be Fair to this Victim ?

"Tort reformers" (usually insurance companies) often argue that damages caps of $1 million or $ 500,000 are "fair." Consider such limits as applied to the following victim of medical malpractice – the facts are taken verbatim from this article in the December 9, 2011 issue of The Chicago Daily Law Bulletin.

By the way, the hospital’s defense firm is one of Illinois’ most respected defense firms.

"By John Flynn Rooney Law Bulletin staff writer

A Peoria man left blind and disabled following surgery settled his medical malpractice lawsuit for $17.5 million.

The settlement in Terry Nichols’ case represents the highest reported personal-injury verdict or settlement in Peoria County, said John L. Kirkton, editor of the Illinois Jury Verdict Reporter.

The parties settled the case earlier this week, said Nichols’ lawyer, Stephen D. Phillips, a partner with Phillips Law Offices.

Phillips provided the following details about the lawsuit.

In April 2004, Nichols, 36, went to Methodist Medical Center of Illinois in Peoria for surgery to repair a large hernia.

At the time, Nichols stayed at home with his three children.

The surgeon, Dr. Rodney McCalla, who completed his residency nine months earlier, never operated on a large hernia.

McCalla decided to perform laparoscopic surgery on Nichols’ hernia, despite not the hospital not giving him privileges to perform interventional laparoscopic procedures.

During the surgery, McCalla allegedly injured Nichols’ bowel, resulting in a perforation that in the following days led to an abdominal infection. Nichols later went into shock, became blind and required a colostomy bag.

Five days after the surgery, hospital nurses concerned about Nichols’ deteriorating condition, called McCalla five times over about 10 hours and asked him to come to the hospital. McCalla never went to the hospital.

Nichols remained hospitalized for two-and-a-half months at Methodist Medical Center and his medical bills totaled about $2 million.

Nichols underwent two hip replacement surgeries due to the infection and uses a wheelchair and colostomy bag.

The lawsuit alleged that McCalla failed to perform the proper procedure on Nichols, failed to properly follow his patient’s care after the surgery and failed to recognize and treat signs of infection.

The complaint also asserted that the hospital failed to properly supervise McCalla and the nurses failed to notify their supervisors or any other doctor of Nichols’ declining condition or McCalla’s unwillingness to come to the hospital.

Under the settlement, Methodist Medical Center will pay a total of $13.5 million, including $3 million of its own money and $11.5 million covered by insurance. An insurer will pay $2 million each on behalf of McCalla and his employer at the time of the surgery, Associated Surgical Group S.C.

"He’s still a father of three young children," Phillips said of Nichols. "I know he would give every penny (of the settlement) back, plus $100 million more to get his health back."

Jill M. Webb, a partner with Phillips Law Offices, also worked on the case.

Roger R. Clayton and Mark D. Hansen, both partners with Heyl, Royster, Voelker & Allen P.C., in Peoria, represented the hospital.

Murvel Pretorius Jr. and Adam P. Chaddock, both partners with Quinn, Johnston, Henderson, Pretorius & Cerelo Chtd., in Peoria, represented McCalla and the Associated Surgical Group.

Neither Clayton nor Pretorius could be reached for comment for this article.

On Monday, 10th Judicial Circuit Judge Scott A. Shore entered a dismissal order in the case. Terry Nichols v. Methodist Medical Center of Illinois, et al., No. 06 L 117.

"Upon the written stipulation of the parties filed herein, it is hereby ordered that the above-entitled cause of action is hereby dismissed with prejudice, in bar of action, costs paid, cause of action satisfied," the order says.

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