The Fifth District Appellate Court has received an appeal brought by a Highland surgeon who won a medical negligence and wrongful death suit earlier this year in Madison County.

Defendant Dr. Jose Diaz Jr. is asking the court to overturn an order by Madison County Circuit Judge Barbara Crowder that granted plaintiff Russell Darbon a new trial.

Darbon is the administrator of his ex-wife, Virginia Gettys' estate. He claims that Diaz missed diagnosing the kidney infection that killed Gettys and that he performed unnecessary surgery while failing to transfer her to another hospital.

During the trial, experts from both sides disagreed on what caused Gettys' death from sepsis and acknowledged the unusual nature of the case.

Gettys' death was officially ruled to have been caused by sepsis stemming from a kidney infection, according to the pathologist. She died in January 2004. Darbon's suit seeks damages of at least $50,000 and costs.

Although the jury found for Diaz at the end of the suit's April trial, Crowder granted a move by Darbon's attorney, Jon Carlson, to get a new trial.

Carlson argued that the violation of a motion in limine by defense expert Dr. Richard Quigg, near the end of testimony, had prejudiced the jury.

Quigg mentioned "leukemia" as a possible reason for Gettys' death. Crowder had previously barred mention of the disease.

Quigg's heated testimony drew several objections from Carlson. Crowder also noted her displeasure with the Chicago nephrologist's conduct at the hearing on the motion for a new trial.

Diaz filed a motion indicating his intent to appeal the order shortly after Crowder entered the new trial order in July.

The appellate court received the needed appeal records Nov. 30,
according to the case docket.

A case management conference is set before Crowder Feb. 24 at 9 a.m.

Darbon is represented by Jon and Eric Carlson.

Diaz is represented by Timothy Richards and Lucas Dalton.

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

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