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High Court Revives Suit Against Radiologist

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A Nebraska radiologist who won a malpractice lawsuit is back in jeopardy after the Nebraska Supreme Court threw out lower-court rulings earlier this month and gave the plaintiff a second chance at pursuing his claim.

The litigation pits Bruce Simon, president of beef products marketer and shipper Omaha Steaks, against Mary Kay Drake, MD, an assistant professor of radiology at the Nebraska Medical Center in Omaha.

Joseph Daly, an attorney representing Dr. Drake, told the Omaha World-Herald that he was disappointed with the Supreme Court’s ruling:

The jury found in our favor that there was no negligence. It’s our position that Dr. Drake did not do anything that was negligent.

The case goes back to 2007, when Simon sought treatment for an arthritic hip. Kevin Garvin, MD, an orthopedic surgeon at the medical center, ordered imaging-guided injections into the hip joint. The first injection, in 2007, went fine. The second, in May 2008, didn’t.

According to court records, a first-year radiologist balked at using a 2.5-inch needle. (A 3.5-inch needle had been used the first time.) Dr. Drake, director of the radiology residency program, told the resident to use the shorter needle anyway. In two tries, it didn’t reach the hip joint. Using a different needle that was at least 7 inches long, Dr. Drake completed the injection herself, on her second try. Altogether, the procedure took 25 minutes from the time the injection site was sterilized.

Several days later, Simon was diagnosed with a staph infection in his hip. He underwent two hospitalizations, three months of treatment to control the infection, surgery to replace the hip joint, and a year in rehabilitation. He sued Dr. Drake, alleging malpractice.

Dr. Drake responded that she had followed the standard of care and that Simon had signed a consent form acknowledging the risk of infection.

The initial trial judge ruled that Dr. Garvin could not testify as a standard-of-care expert. But under questioning by Dr. Drake’s attorney, he did—saying that the shorter needle was acceptable and that he knew of no research that found multiple needle punctures correlating with higher rates of infection.

Simon’s attorney objected. The trial judge agreed that Dr. Garvin was unqualified to give the testimony but ruled it “harmless error” and did not instruct the jury to disregard the testimony. The jury returned a unanimous verdict for Dr. Drake. Simon appealed, saying Dr. Garvin’s testimony had prejudiced the jury. An appeals court upheld the verdict.

But the Supreme Court didn’t. “Compared with the testimony of a hired expert,” wrote Justice William Connolly, “a juror was likely to give great weight to Garvin’s opinion because he was Simon’s treating physician and testifying as an expert against his own patient.”

Up next: a do-over of the first trial.

Related seminar: Abdominal & Pelvic Imaging: CT/MR/US (just released last week; order by July 15 and save $200)


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