A trial is being held for the second time in in an Edwardsville man’s lawsuit against his deceased ex-wife’s doctor.

Russell Darbon, 48, claims Dr. Jose Diaz Jr. negligently failed to diagnose the kidney infection that killed Virginia Gettys, then 43, of Highland. Russell Darbon testified he brought the lawsuit not for himself, but for his children, Madison and Brawley. Gettys had $81,207 in medical bills.

Diaz won a trial in 2009 in a case brought by Darbon as executor of the estate of Gettys.

Madison County Circuit Judge Barbara Crowder, who presided at the first trial, ordered a new trial after a defense expert violated a motion in limine during his testimony when he mentioned “leukemia.”

Opening arguments started Tuesday morning in Circuit Judge William Mudge's courtroom.

“We believe the evidence will show there was rushed judgment," said plaintiff’s attorney Eric Carlson. "All the facts weren’t considered. Proper examinations weren’t performed. A doctor must use his skills and then try to rule in and rule out possible causes. If a doctor doesn’t follow rules, bad things can happen.”

According to the lawsuit, Jose A. Diaz., Jr. M.D. was responsible for Virginia Gettys when he admitted her to St. Joseph’s Hospital in Highland on Jan. 16, 2004, as an attending physician.

Diaz allegedly failed to diagnose Gettys’ kidney infection; failed to recognize the urine showed evidence of a urinary tract infection; failed to obtain a urine culture when the initial urinalysis showed white cells and red cells in the urine; and performed a surgery that was unnecessary when CT scans showed no evidence of surgical pathology and urinalysis showed signs of a urinary tract infection, the suit claims.

“Forty-three year-old women don’t die from a kidney infection,” Carlson told the jury.

Diaz has denied being responsible for the acts or omissions of any other health care provider in providing care and treatment for Gettys.

Diaz asserts that his care of Gettys during her hospitalization was reasonable and appropriate.

Defense attorney Timothy Richards said Diaz has had “very excellent training.” He received his undergraduate degree from Washington University in 1976 and graduated from University of Missouri Medical School in 1982.

“We believe Dr. Diaz acted properly,” Richards said to jurors.

Darbon testified that he grew up on the west side of London and met Virginia Gettys at a casino while traveling in Las Vegas. They were married in Jamaica and then returned to her hometown of Belleville. They were married almost 10 years.

Madison County case number 04-L-1427.

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