Two med mal trials end in mistrial in Madison County

Steve Gonzalez May 15, 2007, 9:00am

Circuit Judge Barbara Crowder

Former Circuit Judge Don Weber

Judge David Hylla

Madison County Circuit Judge Barbara Crowder declared a mistrial in Madison County's latest medical malpractice trial.

Crowder declared a mistrial shortly after noon today after jurors who had deliberated nearly 15 hours could not reach a verdict one way or another.

This is the second mistrial in a medical malpractice trial this week in Madison County. Yesterday, Circuit Judge David Hylla declared a mistrial after one of the defendants in his case was seen talking to a potential juror during Madison County Associate Judge Keith Jensen's swearing-in ceromony.

The defendant was talking to his wife who was called for jury duty in a potenital asbestos case that eventually settled.

Earlier in the day, the husband of the plainitff in Hylla's case approched one of the jurors and informed them that he knew her father. The juror informed Hylla of the contact and jurors and parties were again told that they were not allowed to talk to each other.

Hylla said he plans to reset the case for trial in August.

This is the second delay in Crowder's case.

Last year, three days before trial was set to begin, plaintiff attorney David Damick of St. Louis dismissed Mary Baugus' complaint against James Dalla-Riva, M.D. of Maryville. Her suit alleged Dalla-Riva performed a total hysterectomy without medical justification.

Damick dismissed the suit because former Circuit Judge Don Weber would not sign his motion for judge substitution.

At the time Damick admitted that he did not know Weber and did not have an opinion about him, but informed Weber that other attorneys told him that he should file a change.

He also admitted he was ready to go to trial, telling Weber that the plaintiff's experts were paid, hotel rooms were booked and plane tickets reserved.

Damick said he based his decision on the political endorsement Weber received from a doctor's political action committee --SMASH-- and that Weber's campaign material states he would "weed out med-mal suits." Weber lost his election bid to David Hylla in November.

Weber denied Damick's motion because he thought the purpose was to delay the trial. After Weber's ruling, Damick apparently drove back to his office and drafted a voluntary dismissal.

A hearing on the motion to dismiss was waived because Michael Pitzer of St. Louis, Dalla-Riva's attorney, agreed to the motion to dismiss.

Baugus originally filed suit Dec. 27, 2003, claiming she was caused great physical injury and has endured great physical and mental pain and suffering.

The suit was re-filed in late 2006, and assigned to now-retired Judge Lola Maddox. Her cases transferred to Crowder after the November election.

The suit also claimed Baugus injured her bladder, peritoneum and vagina, and she claimed increased infections, abdominal pain and distress, small bowel obstructions, scarring and vesicovaginal fistula which caused her to undergo additional medical and surgical treatments.

According to her complaint, Baugus claims she is required to wear adult diapers due to incontinence, and that she has been required to get catheterizations and make adjustments to her daily life to accommodate her medical disability.

Baugus claimed Dalla-Riva removed both ovaries and tubes because he improperly interpreted a pelvic ultrasound or accepted notations which were unreliable and inaccurate.

She claimed Dalla-Riva improperly prepared for surgery because he failed to evaluate for bladder and ureteral integrity at the conclusion of surgery on Jan. 4, 2002.

The suit also claimed Dalla-Riva failed to suture the anterior peritoneal edge behind the bladder to the anterior cuff and failed to take steps to impose another layer of tissue between the bladder surface and the vaginal vault.

Damick asked jurors to award Baugus nearly $40,000 in medical expenses and almost $250,000 in pain and suffering.

Crowder has not reset the case for a new trial.

Another case was declared a mistrial by Hylla in March after jurors in a suit against Rosewood Care Center of Edwardsville failed to reach a verdict.

After deliberating 13 hours, Hylla excused the deadlocked jurors who could not unanimously decide on Rosewood's alleged negligence in its care of Alfred Graves.

Paul Graves sued the nursing home after his father suffered a fractured hip six hours into his respite care visit in January 2003.

Plaintiff's attorney Robert Gregory argued that Alfred Graves "was in essence forgotten" when, while still in his street clothes, fell on the way to the bathroom at 12:24 a.m. on Jan. 18, 2003.

Gregory argued that Rosewood violated policies and procedures of care established by the state Nursing Home Care Act. Alfred Graves died in September 2004 at a different nursing home, more than a year-and-a-half after his fall at Rosewood.

Graves, who suffered from early stage dementia, was admitted Jan. 17, 2003, for a short-term visit so that his son and daughter-in-law with whom he lived could take a trip to Mexico, Gregory said. He also said he was still in his street clothes because he wasn't happy about being at the nursing home.

Gregory said it was Graves' roommate who notified staff about the accident.

He told jurors that a nursing care assessment wasn't completed when Alfred Graves was first admitted to Rosewood. He said that nursing charts weren't completed accurately.

But Rosewood attorney Kevin Hoerner said the nursing home did not fail to complete any assessment as required before "the poor gentleman fell."

"The earliest required is at 24 hours," he said. "We were in compliance."

He also said that Rosewood Care Center relied upon the assessment made by Graves' primary physician who was contacted "first thing" upon admission. Graves' physician did not put any restrictions on his activity level, Hoerner said.

He said his ability to ambulate was the same the day before he arrived at the nursing home.

"Alfred Graves was his own man," Hoerner said during his opening argument. "He was not a demented, clumsy, 81-year-old man."

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