New trial ordered in wrongful death suit against Highland surgeon

Amelia Flood Jul. 6, 2009, 8:15am


Defense expert witness Dr. Richard Quigg proved not to be a favorite of Madison County Circuit Judge Barbara Crowder following an April wrongful death trial.

Crowder has ruled that Quigg's violation of an order in limine means a new trial in a case against Dr. Jose Diaz, Jr.

Jurors had ruled in Diaz's favor.

Diaz, a surgeon, was sued by Russell Darbon, the special administrator of the estate of his ex-wife Virginia Gettys, for negligence and wrongful death.

Prior to the trial in April, Crowder ruled that witnesses were barred from mentioning "leukemia" in relation to Gettys' death.

The April trial featured conflicting medical opinions from Diaz, infectious disease specialists and from Quigg, the only nephrologist, called.

Quigg, whose testimony drew several objections during the trial, mentioned the subject, violating Crowder's order. Although plaintiff's counsel objected at the time, Crowder overruled it.

Plaintiff's attorney Jon Carlson asked Crowder in a May 18 motion to set aside the jury's verdict and allow a new trial. Carlson argued that "the violation of the Court's Order was so serious that the Plaintiff could no longer get a fair trial," in his motion.

During a motion hearing June 17, defense attorney Timothy Richards apologized to the court for Quigg's infractions but told Crowder that the jury had decided.

Crowder told the attorneys that she had not declared a mistrial at the time as Quigg was the last witness to take the stand.

She also told Carlson and Richards that Quigg was "not my favorite witness."

Darbon's suit claimed that Gettys died as the result of an undiagnosed kidney infection because Diaz Jr. failed to perform proper exams, failed to read a urine test accurately, performed needless surgery and failed to transfer her to a hospital with an infectious disease specialist. Darbon asked for $50,000 in damages and costs.

Gettys was admitted to St. Joseph's hospital in Highland in January 2004. She died a few days later at another facility where she had been transferred with signs of sepsis. The pathologist who performed her autopsy ruled that she had died of septic shock stemming from a kidney infection.

Crowder entered an order for the new trial July 1. A case management conference is now set for Aug. 26 at 9 a.m.

The case is Madison case number 04-L-1427.

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