Texas Verdicts

Plaintiff(s):

Pam Fortner (Female, 47 Years), 

Ronald Fortner (Male, 50 Years)

Plaintiff Attorney(s):

Kenneth B. Chaiken;
Chaiken & Chaiken, P.C.;
Plano,
TX,
for
Pam Fortner, Ronald Fortner ■ Robert L. Chaiken;
Chaiken & Chaiken, P.C.;
Plano,
TX,
for
Pam Fortner, Ronald Fortner ■ Jeffrey S. Levinger;
Levinger P.C.;
Dallas,
TX,
for
Pam Fortner, Ronald Fortner ■ Carrie P. Kitner;
Chaiken & Chaiken, P.C.;
Plano,
TX,
for
Pam Fortner, Ronald Fortner

Plaintiff Expert(s):

Gary Durham; Economics; Dallas,
TX called by:
Kenneth B. Chaiken, Robert L. Chaiken, Jeffrey S. Levinger, Carrie P. Kitner ■ John Kress; M.D.; Critical Care; Chicago,
IL called by:
Kenneth B. Chaiken, Robert L. Chaiken, Jeffrey S. Levinger, Carrie P. Kitner ■ Lori Hinton; R.N.; Life Care Planning; Houston,
TX called by:
Kenneth B. Chaiken, Robert L. Chaiken, Jeffrey S. Levinger, Carrie P. Kitner ■ Susan Bamason; Nursing; Lincoln,
NE called by:
Kenneth B. Chaiken, Robert L. Chaiken, Jeffrey S. Levinger, Carrie P. Kitner ■ Alfredo Sadun; M.D., Ph.D.; Neuro-ophthalmology; Pasadena,
CA called by:
Kenneth B. Chaiken, Robert L. Chaiken, Jeffrey S. Levinger, Carrie P. Kitner

Defendant(s):

Jeff E. Taylor, M.D., 

Gregory Messner, D.O., 

Gary E. Erwin Jr., M.D., 

James S. Rellas, M.D., P.A., 

Health Texas Provider Network, 

Medical Edge HealthCare Group P.A., 

Texas Heart Hospital of the Southwest LLP

Defense Attorney(s):

John A. Scully;
Cooper & Scully, P.C.;
Dallas,
TX,
for
Texas Heart Hospital of the Southwest LLP ■ Stan Thiebaud;
Thiebaud Remington Thornton Bailey LLP;
Dallas,
TX,
for
Jeff E. Taylor, M.D., Gary E. Erwin Jr., M.D., Health Texas Provider Network ■ Susan C. Cooley;
Schell Cooley, LLP;
Addison,
TX,
for
James S. Rellas, M.D., P.A., Medical Edge HealthCare Group P.A. ■ Lisa M. Wilson;
Schell Cooley, LLP;
Addison,
TX,
for
James S. Rellas, M.D., P.A., Medical Edge HealthCare Group P.A. ■ Cory M. Sutker;
Cooper & Scully, P.C.;
Dallas,
TX,
for
Texas Heart Hospital of the Southwest LLP ■ Joel J. Steed;
Steed Dunnill Reynolds Murphy Lamberth LLP;
Rockwall,
TX,
for
Gregory Messner, D.O.

Defendant Expert(s):

Carl Dahlberg;
Critical Care;
Houston,
TX called by:
John A. Scully, Stan Thiebaud, Cory M. Sutker ■ Nancy Newman;
Neuro-ophthalmology;
Atlanta,
GA called by:
John A. Scully, Stan Thiebaud, Cory M. Sutker ■ Michael Blackmon;
Nursing;
Plano,
TX called by:
John A. Scully, Stan Thiebaud, Cory M. Sutker

Insurer(s):

Baylor Health Care System Self-Insured Trust for Erwin, Taylor and the hospital

On July 15, 2008, plaintiff Ronald Fortner, 50, a maintenance supervisor for a school district, underwent open-heart surgery by Gregory Messner, M.D., of The Texas Clinic at Prestonwood. The surgery was performed at The Heart Hospital Baylor Plano. About a day later, Fortner slowly started losing his vision in the right eye. It progressed to his left eye until he was completely blind by July 17. His critical care doctors were Gary E. Erwin Jr., M.D., and Jeff E. Taylor, M.D., of Health Texas Provider Network, operating as Dallas Diagnostic Association-Plano. They and the nurses said they thought Fortner was having a reaction to his medication or the anesthesia, or that he had suffered a brain stroke. Tests showed no evidence of a stroke in the brain, however, and an ophthalmology consult was requested. The hospital did not have an ophthalmologist on staff and one had to be credentialed just for Fortner. The ophthalmologist determined that the vision loss resulted from an anterior ischemic optic neuropathy (AION), which is essentially a stroke of the optic nerves. This condition can result from blood loss during surgery, anemia, and low blood pressure, and the ophthalmologist ordered immediate transfusions to correct Fortner’s anemia and raise his blood pressure. However, Fortner’s vision did not return. Fortner sued Erwin, Taylor, and Texas Heart Hospital of the Southwest LLP, operating as The Heart Hospital Baylor Plano, for medical malpractice. The suit alleged that the nurses failed to make accurate and timely reports of Fortner’s deteriorating vision and that the critical care doctors failed to respond to the reports properly and timely by obtaining an urgent ophthalmology consult and intervention. Fortner also sued Messner; Medical Edge HealthCare Group P.A., operating as The Texas Clinic at Prestonwood; and another entity, James S. Rellas, M.D., P.A., operating as HeartFirst Cardiology Center. However, all of those entities were out of the case at least six months before trial. Fortner’s critical care expert opined that the standard of care required an urgent consultation with an ophthalmologist as soon as visual field cuts were noted, regardless of whether the doctors were aware of the possibility of AION. Fortner’s neuro-ophthalmology expert opined that, if Fortner’s complaints had been addressed timely, his visual field cuts and blindness could have been stopped and even reversed by timely blood transfusions. The defense argued that AION is a rare condition and one with which critical care doctors are generally not familiar. Per the defense, faced with a patient’s vision problem, a critical care doctor is trained to look to the brain, not the eyes, as the source of the problem. Therefore, the defense argued that the standard of care had been met. The defense further argued that AION is untreatable and, once it begins, the vision loss cannot be reversed.

Fortner permanently lost all vision in both eyes. He underwent transfusions to raise his blood pressure and correct his anemia, but it was too late for these measures to restore his sight. Fortner sought $409,996 for past lost earning capacity, $628,959 to $1,254,269 (depending on retirement age) for future lost earning capacity, $2,893,244 to $4,698,375 for future expenses of nursing, as well as care and assistance, and $240,000 for past expenses of care and assistance. He sought unspecified damages for past and future physical pain and mental anguish. His wife, plaintiff Pam Fortner, 47, a teacher, sought damages for past and future loss of consortium. Because of the caps on non-economic damages in medical malpractice cases, plaintiffs’ counsel reportedly placed more emphasis on economic damages than on non-economic during trial.

The jury assigned 95 percent liability to Texas Heart Hospital and 5 percent to Erwin. The jury found no liability/negligence and on the part of Taylor. The jury awarded the plaintiffs $6,844,543. The jury’s award included non-economic damages of $1.7 million, which was expected to be reduced to approximately $335,000 due to statutory caps.

Pam Fortner: $250,000 Personal Injury: Past Loss Of Consortium; $250,000 Personal Injury: Future Loss Of Consortium; Ronald Fortner: $822,964 Personal Injury: future lost earning capacity; $1,000,000 Personal Injury: past physical pain and mental anguish; $50,000 Personal Injury: past care and assistance expenses; $205,000 Personal Injury: future physical pain and mental anguish; $3,731,003 Personal Injury: future care and assistance expenses; $409,996 Personal Injury: past lost earning capacity

Judge:

Staci Williams

Demand:

$4.4 million

Offer:

$750,000

Trial Length:

10
 days

Trial Deliberations:

1
 days

Jury Vote:

11-0

This report is based on information that was provided by plaintiffs’ counsel. Defense counsel did not respond to the reporter’s phone calls.