Defendant appeals judge's new trial order in Highland wrongful death case

By Amelia Flood | Jul 20, 2009

Attorneys for a Highland surgeon who won a wrongful death suit in April are appealing Madison County Circuit Judge Barbara Crowder's order which set aside the jury verdict and called for a new trial.

Crowder entered the order in July due to a defense expert's violation of a motion barring the mention of "leukemia" related to the death of Virginia Gettys.

Gettys' ex-husband, Russell Darbon, brought the negligence and wrongful death suit against Dr. Jose Diaz Jr. on behalf of the couple's two children as special administrator of the Gettys' estate.

Defense attorney Timothy Richards is joined by attorney Lucas Dalton on the motion for an extension of time to file a petition for leave to appeal filed with the Fifth Appellate District in Mount Vernon July 16.

Darbon sued Diaz Jr. claiming the Highland surgeon performed unnecessary surgery, failed to proper read the results of a urine test and failed to transfer Gettys from St. Joseph's Hospital to another facility with an infectious disease specialist.

Gettys had been admitted to St. Joseph's in January 2004 and died a few days later after being transferred to another facility. Gettys died from sepsis stemming from an undiagnosed kidney infection, according to her autopsy.

Darbon sought at least $50,000 in damages and costs.

The April trial featured dueling medical experts and the controversial testimony of nephrologist Dr. Richard Quigg of Chicago. Quigg sparred heatedly with plaintiff's attorneys and overstepped bounds set by Crowder several times during his testimony.

Crowder described Quigg as "not my favorite witness," during the arguments on plaintiff counsel Jon Carlson's motion for a new trial June 17. She told attorneys at the time that she had not immediately granted Carlson's move for a mistrial when Quigg mentioned the cancer because he was the last witness to take the stand.

The jury found for Diaz shortly after.

A case management conference in the case is currently scheduled for 9 a.m., Aug. 16.

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

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