Jurors find for surgeon in Madison County med mal trial

By Amelia Flood | Apr 29, 2009


Despite disappointment in losing his wrongful death suit against a Highland surgeon, plaintiff Russell Darbon of Edwardsville says he and his family have gained something from the case: closure.

Jurors deliberated for four and a half hours Wednesday before finding for defendant Dr. Jose A. Diaz Jr., the surgeon who treated Darbon's deceased ex-wife Virginia Gettys in 2004. Lawyers from both sides said that the trial had been hard-fought, playing on their nerves at times.

The case decided in Madison Circuit Judge Barbara Crowder's courtroom Wednesday began in January 2004. Virginia Gettys, 43, came to the emergency room at St. Joseph's Hospital in Highland shortly after a colonoscopy. She complained of severe abdominal pain among other symptoms. She died a few days later after surgery at St. Joseph's and a transfer to St. Luke's Hospital in Missouri. Her autopsy found that Gettys died from sepsis – a severe infection – stemming from a rare kidney infection.

Darbon's suit alleged that Diaz, who was the attending physician, violated the medical standard of care. The plaintiff argued that Diaz failed to order proper urine tests to rule out a urinary tract infection, that he delayed Gettys' transfer to St. Luke's and that he performed unnecessary surgery. The defense argued that Diaz had acted properly and that the cause of the sepsis could be disputed.

The trial saw dueling experts and heard raised voices as some of those same doctors sparred with the lawyers. Defense expert Dr. Richard Quigg, a nephrologist from the University of Chicago had particularly heated words with Eric Carlson, who worked the case with his father, plaintiff's attorney Jon Carlson.

Defense attorney Timothy Richards said that although he had always believed he had a strong case, the Carlsons had given him a run for his money.

"This particular bit of health care was put under a microscope," Richards said. "I honestly believe with all my heart that Dr. Diaz is a really excellent doctor."

After jurors left the court room, he shook hands with Jon Carlson and Darbon, praising both. He also expressed his sympathy for Darbon and his children.

"My heart goes out to this family," he said, calling them "a real class act," sentiments he had expressed during the trial.

Carlson, too, praised Richards, while saying he was disappointed by the case's outcome. He admitted that, although he believed his case had been strong and well-presented, there had been issues with it.

In particular, he had been concerned about the failure of doctors at St. Luke's to come to a diagnosis of Gettys' condition.

"We had concerns about the case," Carlson said.

Darbon sued Diaz as the special administrator on behalf of their two children. No damages were awarded. The plaintiff had asked for damages for unspecified wrongful death, pain and suffering and for medical expenses totaling around $80,000.

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

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