Jury begins deliberations in wrongful death trial against surgeon

By Amelia Flood | Apr 28, 2009

The experts have had their say and now it's time for the jury to have its as a 2004 wrongful death suit against a surgeon at St. Joseph's Hospital in Highland ends.

Jurors heard closing arguments after a day of defense expert witness testimony in Madison Circuit Judge Barbara Crowder's courtroom Tuesday.

The jury elected a foreman before breaking until 9 a.m. Wednesday.

The suit was brought by plaintiff Russell Darbon as special administrator for his deceased ex-wife. Darbon contends that Dr. Jose A. Diaz Jr. was negligent and caused the death of Virginia Gettys by failing to diagnose a rare kidney infection that led to septic shock.

The plaintiff has argued that Diaz failed to perform necessary tests to find the infection, performed unnecessary surgery and did not transfer her to a hospital with an infectious disease specialist in a timely fashion. Gettys died in January 2004 at St. Luke's Hospital in Chesterfield, Mo.

The plaintiff is seeking at least $50,000 in damages, plus costs.

The final hours of defense expert witness testimony became heated as Eric Carlson, one of the plaintiff's attorneys, sparred with University of Chicago nephrologist Dr. Richard Quigg. Carlson hammered at the fees Quigg had been paid, prompting Quigg to call the line of questioning "an insult."

Quigg, the only kidney doctor who testified, said that even if doctors at St. Joseph's had diagnosed the kidney infection, the treatment Gettys received would have been the same as what she got. He said that Diaz's actions did not lead to her death.

"She just had the bad luck of having multiple bad things happen at the same time," Quigg said of Gettys' situation. Quigg questioned whether Gettys' illness and death were caused by the kidney infection. He and other defense experts argued that a perforated bowel from a colonoscopy Gettys had done earlier in the week of death, could have caused the sepsis that killed her or that she died from another cause.

In closing arguments, plaintiff attorney Jon Carlson called the other explanations of Gettys death "false defenses" and "absurd." He particularly stressed the fact that Quigg had been paid $39,000 over the course of five years for his work on the case.

"What do you want to believe is the cause of death?" Carlson asked the jurors. "The $40,000 testimony or the court certified pathologist?"

Carlson told jurors that just because other doctors at St. Joseph's and at St. Luke's, where Gettys was transferred didn't find the kidney infection, Diaz was still responsible for including it in the possible diseases that were tested for, a set referred to as the differential diagnosis.

"He was still required to consider urinary tract infection and rule it out," Carlson said. "It was never ruled out until it was too late."

He asked the jury to decide for themselves what damages for Gettys' death and pain and suffering to award and for medical costs of about $80,000.

Defense attorney Timothy Richards countered Carlson's statements, telling jurors that the plaintiff had failed to prove his case. He pointed to both plaintiff and defense experts who had both agreed with Diaz's course of treatment and who had been skeptical that Gettys' initial tests should have pointed to the kidneys. He argued the differential diagnosis – the set of diseases doctors consider while determining which is causing a patient's symptoms – could not be viewed as the be-all-end-all of the care Gettys received.

"Differential diagnosis is not a static, carved in stone thing as Mr. Carlson would have you believe," Richards said.

Richards told jurors Diaz had done what he had to with the symptoms as Gettys displayed them.

"He did his job," he stated.

Jurors will resume deliberations tomorrow.

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

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