Dr. Jose Diaz Jr., who won a Madison County wrongful death suit in April, has an additional 60 days to appeal Circuit Judge Barbara Crowder's order granting the plaintiff a new trial.
A jury found for the Highland surgeon in the negligence and wrongful
death suit brought by the ex-husband of Virginia Gettys on behalf of her estate. Gettys died from sepsis stemming from a kidney infection that her ex-husband Russell Darbon alleges was misdiagnosed by Diaz.
Crowder granted the plaintiff's motion for a new trial in July because a defense expert witness mentioned "leukemia" in connection with Gettys' death. That mention was barred by a motion in limine Crowder entered prior to the trial.
The appellate order came down Sept. 8.
At trial, dueling experts disagreed on what treatment Gettys should have received.
Virginia Gettys died in January 2004 after several days of treatment at St. Joseph's Hospital in Highland and at a Missouri hospital.
Darbon sued Diaz claiming that he failed to properly diagnose the kidney infection, failed to perform basic tests, failed to transfer her to a facility with an infectious disease specialist and that he performed unneeded surgery.
Darbon sought damages of at least $50,000 and costs.
Defense expert Dr. Richard Quigg of Chicago violated Crowder's order during his time on the stand. Crowder overruled plaintiff's counsel Jon Carlson's objection at the time. She later described Quigg as "not my favorite witness," at the June 17 hearing on the subject of the new trial.
The defense filed for leave to appeal shortly after Crowder entered the order granting the new trial.
Diaz is represented by Timothy Richards and Lucas Dalton in the appeal. Richards was counsel at trial.
The case is scheduled for a case management conference Oct. 28.
The case is Madison case number 04-L-1427.