Defendant, experts testify in wrongful death trial

Amelia Flood Apr. 23, 2009, 12:55am


If he had it to do over, Dr. Jose Diaz Jr. said he would still operate on his now deceased patient, Virginia Gettys.

Diaz, a defendant in a wrongful death suit brought by Gettys' ex-husband, Russell Darbon, told jurors that as he testified under questioning from Darbon's attorney, Jon Carlson.

As the trial entered its second day of testimony, Diaz's testimony contradicted that of two plaintiff experts who contended that Gettys' 2004 death resulted from several treatment errors including Diaz's surgery.

The defense began presenting its case with its own expert testimony, ending the day an hour after the courthouse closed at 5:30 p.m.

"I wanted to help Mrs. Gettys," Diaz said. "Even if I knew she had a urinary tract infection, I'd still operate on her. My involvement in this case was not necessarily to care for her kidney."

In the suit, the plaintiff argues that Gettys, 43, was not properly diagnosed with a severe kidney infection. The pathologist ruled that it contributed to her death from sepsis. Sepsis is the spread of infection into the blood stream, causing low blood pressure and organ failure if untreated.

The plaintiff is asking for at least $50,000 per each of the two counts in the suit and costs.

Gettys died at St. Luke's Hospital in Chesterfield, Mo. after she was transferred from St. Joseph's Hospital in Highland, the site of her initial treatment in January 2004. Gettys had a normal colonoscopy two days before her hospitalization.

Diaz was one of several doctors to see Gettys, who complained of abdominal pain, bloody diarrhea and other symptoms.

Doctors at St. Joseph, the plaintiff argues, did not properly examine results from her urine, did not re-run an inconclusive CAT scan and did not transfer Gettys to a facility with infectious disease specialists who had the expertise to deal with her condition.

The defense, led by attorney Timothy Richards, argues that Diaz acted according to the symptoms Gettys presented. These, according to the defense and Diaz's testimony, did not indicate a kidney problem.

Under questioning by both the plaintiff and defense, Diaz denied that the results of Gettys' urine analysis did not mean that her kidney infection was apparent.

"Half the jury here could go give a urine sample now and there would be some white cells in them," Diaz said.

Witnesses had previously testified that white cells in urine are a sign of a possible infection. Diaz had said he would have expected higher levels in the case of a raging infection.

"I don't think 15 go 20 is significant," he said.

Diaz was not the only doctor testifying Wednesday. Dr. Richard Berg of Maryland testified via DVD on behalf of the plaintiff. Berg, an infectious disease specialist, agreed with many of the conclusions drawn by Dr. Aaron Chevinsky, whose testimony was heard the previous day.

Berg contended that the Highland hospital, which does not have an infectious disease specialist on staff, erred in keeping Gettys for treatment. He cited "worrisome" signs, such as white cells in her urine. He said these signs should have led Gettys' doctors, including Diaz, to look for other diagnoses, rather than surgery.

"The attempt wasn't made and I think had it been, the diagnosis would have followed rapidly," Berg said. "I think the reasonable physician would have sent this patient on to another hospital."

Defense expert, St. Louis-based surgeon Dr. Kenneth J. Bennett, argued that Diaz proceeded along the same course that many surgeons would – collaborating with other doctors to determine a patient's treatment. Bennett was not swayed, in response to multiple questions on cross-examination, by factors like some blood, pus and other signs from Gettys' urine.

The trial is set to resume Monday at 9 a.m. Madison Circuit Judge Barbara Crowder is presiding.

The case is Madison case 04-L-1427.

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