Articles - Medical Malpractice
Hospital could face unlimited damages ::
(11 28, 2005)
BY RON SYLVESTER
The Wichita Eagle
A judge rules that a legal limit on pain and suffering awards doesn't apply to an area family's case against Via Chrisi.
Maria Brower of Hutchinson, whose family has spent most of her life in a court battle with a Wichita hospital, can seek unlimited damages for pain and suffering, a judge ruled Wednesday.
In a unusual decision stemming from a unique case, Sedgwick County District Judge Paul Clark determined that a Kansas law limiting pain and suffering to $250,000 in malpractice suits didn't apply to Brower's case.
It's the latest in a suit that charges Via Christi Regional Medical Center with doctoring records to cover up evidence in a malpractice case dating back 15 years. The hospital, and an employee named in the suit, deny all the allegations.
Brower was 4 years old when she lost the use of her legs following spinal surgery in October 1987 at St. Francis Hospital in Wichita.
"You ask yourself if you'd give up both your legs for $250,000," said Larry Wall, Brower s lead trial lawyer, who also plans to seek punitive damages against the hospital.
Brower is now 18 and attends college in Florida, but her mother said the young woman has needed years of physical therapy. She moves around in leg braces and a wheel chair.
"It's gotten tougher on her as she's gotten older," said LeAnn Brower. "When she was a child, I could take on most of the burden. But now that she's an adult, she's starting to experience it more.
"Your girlfriends all have dates, so you're a third wheel. No one asks you out. You go to the prom stag."
Brower's injury also took place in the midst of sweeping changes in Kansas laws governing limits on malpractice suits. Those included the $250,000 cap on so-called noneconomic damages, such as pain, suffering, mental anguish and physical disability.
In 1988, the Kansas Supreme Court struck down the cap as unconstitutional. Later that year, the Legislature reworded the law so it would stand up to legal scrutiny. Under the limits, if a jury returned an award in a lawsuit greater than $250,000, a judge could whittle it down to fit the cap. On Wednesday, Clark ruled that the caps didn't apply in 1987, so any jury award to Brower for pain and suffering would remain intact.
"It really becomes relevant only if there's a jury verdict reached," said Steve Day, a lawyer for Via Christi. "As far as our evaluation of how to proceed with the case, it doesn't have an impact."
Malpractice suits involving children have an 8-year statute of limitations. Maria Brower's original suit was filed in 1992 and went to trial three years later against William Shapiro, the neurosurgeon who operated on Maria to correct a rare form of the birth defect spina bifida.
During the last days of the trial, Brower's lawyers, Brad Prochaska and Gerard Scott, noted discrepancies in the electronic monitoring of the girl's nerve activity during the operation.
The lawyers claim Brower's monitoring strip came to court with sections cut and pasted with another patient's record to cover up the injury. Court affidavits filed by expert witnesses concluded that part of the strip measuring spinal functions came from an adult, not a pre-schooler. That patient has since been identified.
Another record of the surgery showed passages covered with white erasing fluid. Those sets didn't match documents previously turned over in the case, Prochaska argued.
Lisa Gould, the technologist in charge of the monitoring, has also been named in the current lawsuit. The jury in the malpractice trial sided with Shapiro. But later, information came to light that one of the jurors was actually a friend and co-worker of Gould.
Shapiro eventually settled in 1998 for $485,000, according to public records from the Kansas Health Care Stabilization Fund. The fraud trial is set for June 4.
Reach Ron Sylvester at 268-6514 or rsylvester©withitaeagle.com
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