Commonwealth Journal

March 31, 2014

$10.6 million judgment returned in medical malpractice lawsuit

by Heather Tomlinson
Commonwealth Journal

Somerset —

A $10.6 million judgment has been handed down against a former Somerset-based surgeon and Lake Cumberland Regional Hospital in a civil case connected with a local woman’s January 2010 death. 
And while the case brought by the family of Pamela Dixon, 39, against Dr. John Husted and LCRH appears to be wrapping up after four years of litigation, four similar lawsuits are pending in federal court — three of those against Husted and LCRH and one of those against Husted only. 
A jury in the late hours of Tuesday, March 25, returned a verdict against LCRH, more than a month after the trial officially began on Feb. 10, 2014. The trial centered on Dixon’s Jan. 13, 2010 death, which came after she underwent laparoscopic bypass surgery — a surgery used to help with weight loss — at the hands of Husted on Dec. 17, 2009. 
The questions before jurors were whether Husted had been negligent in caring for and treating Dixon during her initial surgery, during a second surgery to repair an abdominal leak, and in her follow-up care. Also at question was whether LCRH had been negligent in marketing the bariatric program and allowing Husted to continue operating in spite of questionable complication rates, and if the hospital violated Kentucky consumer protection laws as an operating for-profit business. 
Plaintiff Bruce Dixon, Pamela Dixon’s husband, along with the couple’s two children, stated throughout the four years leading up to February’s trial that the hospital had allowed an unsafe bariatric program to operate, in spite of red flags that suggested Husted was incompetent. According to the plaintiffs’ pre-trial memorandum, pre-pared by their attorney Anne Oldfather, of Louisville, hospital administrators failed to oversee the start-up of the bariatric program — one pushed aggressively through advertising when it began in 2008 — and failed to properly review Husted’s first procedures within six months of the program’s start. 
“When hospital administration belatedly reviewed ... Husted’s performance, they excused his provable neglect and allowed the program to continue when it should have been shut down,” states the memorandum for the plaintiffs. “The cost for this inexcusable collapse in patient safety was paid for by (Dixon) with her life ...”
According to documents provided by the plaintiffs through the pre-trial memorandum, the hospital actually moved to limit the procedures within the hospital’s bariatric program on Feb. 11, 2010 — less than a month after Dixon’s death. 
“Plaintiffs’ witnesses will establish that the hospital was obliged to shut down the program when, after finally looking at ... Husted’s surgeries, it determined that 28 (percent) to 31 (percent) of the patients ... Husted operated upon suffered a reportable complication,” states the memorandum. 
The memorandum also points out that of the nearly 150 patients Husted operated on during his time in Somerset, four patients, including Dixon, died due to complications. 
Whether that complication rate and mortality rate are acceptable in a bariatric program were disputed between the plaintiffs and the defense teams. But the memorandum points out that another bariatric surgeon and an expert witness, retained by Husted’s team, testified that his mortality rate, as of the trial, stood at two patients for more than 2,000 surgeries. 
In a related note, three civil lawsuits currently pending in U.S. Eastern District Court in London accuse Husted and LCRH of similar actions stemming from three 2009 bariatric surgeries — August 2009, July 2009, and September 2009. In those cases, plaintiffs contend that they suffered substantial injury by Husted. 
In another case, Husted is the only named party. In that lawsuit, Husted is accused of causing serious injury to two separate women through two 2009 bariatric surgeries. The hospital was initially named a defendant in that lawsuit, but it and the plaintiffs have since settled.
In Dixon’s case her family contended that she had been led to believe that the bariatric program was a safe one, and that Husted was a competent surgeon. 
According to the plaintiffs’ memorandum, Dixon developed a fever and a tachycardic heart rate soon after her initial surgery on Dec. 17, 2009. By day two, Dixon reportedly told nurses she was in considerable pain, and tests on Dixon revealed abnormal activity. By Dec. 19, Dixon was moved to the ICU at LCRH, and according to nurses’ notes, Husted failed to respond immediately to what appeared to be signs of infection — a result of a gastric leak. Husted discovered the intra-abdominal gastric leak during a second exploratory surgery on Dec. 20, 2009. 
By Dec. 25, 2009, Dixon was placed on a breathing vent. By Jan. 4, 2010, her blood pressure was recorded at 196/93, in spite of blood pressure medications being used. Although Dixon still suffered from a fever and high blood pressure, Husted discharged her from LCRH on Jan. 8, 2010. Her intra-venous antibiotics were also discontinued, according to the plaintiffs’ memorandum. 
Throughout her hospital stay, Dixon’s nurses exhibited signs that they were concerned about Husted’s treatment of Dixon, shown through their notes, according to the plaintiffs’ memorandum. 
Memorandums entered by the defense teams for LCRH and Husted both suggest that Dixon showed considerable signs of improving, and that she refused a final CT scan before her discharge. 
The question of whether the infection, caused by abscesses, was missed in the scan, was also before the jury. Dr. Paul Wooldridge and Bluegrass Radiology Associates, who were added to the lawsuit through the litigation process, were not found to be at fault by the jury. 
The memorandum filed by the team for LCRH states that Dixon, after her discharge, “failed to follow her physician’s instructions to return to the hospital or seek medical attention on Jan. 12, 2010, the day before she died, after she experienced unusual pain and other symptoms.”
The plaintiffs’ memorandum disputes that, stating that Bruce Dixon opted to not take his wife back to the hospital because her fever never exceeded 101 degrees Fahrenheit, and because “none of the discharge instructions ... were implicated.” The memorandum also points out that Bruce Dixon attempted to contact Husted’s office on Jan. 11 and 12, 2010 to check on a wound VAC, used to help heal wounds through the use of pressure. Those attempts, according to the plaintiffs’ memorandum, “produced no results.”
After Pamela Dixon’s death on Jan. 13, 2010, an autopsy revealed her pelvis “ ... was full of purulent green pus, in the area of the liver and the pelvis. ... Her intestines were full of adhesions and virtually falling apart,” according to the plaintiffs’ memorandum. 
The trial began on Feb. 10, 2014 with the expected 12 jurors and two alternates. But between Feb. 10 and Feb. 28, two jurors had been dismissed and third had suffered a medical emergency. The plaintiffs and defendants opted to continue on with 11 jurors, with the stipulation that nine jurors must agree on the verdicts as per state law.
The jury, in a unanimous decision, stated they believed LCRH and its employees failed to exercise the care and skill expected of the hospital in Dixon’s case, and they stated they felt that failure has a significant impact in Dixon’s case. 
The jury also unanimously stated that Husted failed to exercise the care and skill ordinarily expected of him in providing care to Dixon — and they stated that the failure “was a substantial factor” in the outcome of Dixon’s case. 
The jury recommended a $10,658,265 judgment, to be split between Husted and LCRH. Jurors, in determining the percentages of fault in the case, determined LCRH to be 60 percent at fault, and Husted to be 40 percent at fault. 
That means that, should Pulaski Circuit Court Judge Jeffrey T. Burdette sign off on the judgment, LCRH will be held responsible for $6,394,959. Husted, who during the litigation process declared bankruptcy, will be responsible for $4,263,306. 
The hospital on Monday stated in a short statement that it cannot comment on the case because “there may be an appeal of the decision.”
But the statement did point out that Husted “no longer lives in Somerset or practices at the hospital.”
Husted operated through the hospital’s bariatric program for around a year and four months. 
Since then, Husted has moved to Arizona, and he now has an office in Riverside, Calif.
“This case has proven two things: That the jury system does work, because the jury was phenomenally attentive,” said Oldfather. “And the flip side of it is the behavior of this hospital in aggressively marketing this bariatric program ... not caring about the cost of lives.
“Pamela Dixon should not have had to give her life for this, but one hopes the community of Pulaski County will be safer because she did,” added Oldfather.