Appellate court denies Highland surgeon leave to appeal new trial

By Amelia Flood | Jan 4, 2010

A Highland surgeon will face a new trial after an appellate court denied his leave to appeal an order for that trial entered by Madison County Circuit Judge Barbara Crowder.

In a 2-1 decision, the appellate court denied defendant Dr. Jose Diaz Jr.'s move to allow a verdict in his favor stand.

Diaz was sued by Russell Darbon, the ex-husband of Virignia Gettys' as special administrator of her estate, for negligence.

Gettys died in 2004 from sepsis stemming from a kidney infection.
Darbon's suit claims that Diaz was negligent in performing unneeded surgery, failing to diagnose an infection, and failing to transfer Gettys to a hospital with an infectious disease specialist.

Although the jury found for Diaz after an April trial featuring dueling experts, Crowder granted a move by the plaintiff for a new trial because a defense expert violated a motion in limine.

Crowder entered the order granting the new trial in July.

Justices James Donovan and James Wexstten denied Diaz's leave to appeal. Justice Thomas Welch dissented.

A case management conference is set for February.

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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