A Madison County jury reached a defense verdict for the second time in a retrial for a medical malpractice suit alleging a woman died from a blood clot caused by a sprained ankle.
Deliberations ended at about 8:30 p.m. on June 25 when jurors entered a verdict in favor of defendants Orthopedic & Sports Medicine Clinic PC and Dr. Bruce T. Vest Jr. They had deliberated just over six hours before reaching their verdict. Madison County Circuit Judge David Dugan presided over the seven-day trial, which began June 17.
The defendants were represented at trial by Philip Willman and Justin Hardin of Brown & James in St. Louis and Don Weber of Craney Law Group LLC in Edwardsville.
Plaintiffs James Greco, as special administrator of his wife Tamara Greco, and as legal guardian and next friend of Taylor Greco, Heather McKaig and Nicholas McKaig were represented by David Horan and Gregory Fenlon of St. Louis.
The case first went to trial in April 2013 with Madison County Circuit Judge Andreas Matoesian presiding. The case ended in a defense verdict before a new trial was ordered by the Fifth District Appellate Court.
During closing arguments on June 25, Horan and Fenlon asked jurors to award each of Tammy Greco’s three children $300,000 and her husband $500,000, for a total of $1.4 million.
“We are just asking you to be fair,” Horan said during closing arguments. “We are not asking you to go overboard on throwing out money.”
“I hope that we never forget the value of our mothers,” Fenlon said during closing arguments.
“Oh my gosh, they put over $100,000 of expert witnesses on the stand, and these kids get nothing?” he added.
Fenlon said Greco’s children grew up without their mother and “a hole in their lives,” adding that her husband has had to live without his wife, and urged jurors to rule in favor of Greco’s family.
“We ask you to be the voice, the last voice of Tammy Greco,” Fenlon said.
“In Medieval times, Jim Greco could challenge Dr. Vest to a dual,” he added. “He could choose the weapons. Instead of that, thank goodness, instead of that we get to ask for damages.”
He said that reaching a decision as a jury is where “science and law butt heads.” He explained that they aren’t there to rely on scientific certainty. They instead must determine what is more likely than not.
Horan told jurors that this is the only time the plaintiffs can bring their case before them. Although the case had gone to trial before.
Fenlon told jurors they “saw some substandard care by any stretch of the imagination” by the defendants.
“I’m going to walk you through again how her death was preventable,” he said.
Fenlon said the jurors have a choice to vaccinate themselves and their families to prevent diseases, but “Tammy Greco didn’t have a choice” to prevent her injuries.
He said the defendants should have been told that she had certain risk factors for a deep vein thrombosis, or DVT.
“Shouldn’t she be involved in that decision? It’s her right as a patient,” Fenlon said.
He added that she would have had a greater than 90 percent chance of survival if she was given an ultrasound after complaining of tingling and numbness in her toes. He also said she would have had a greater chance of survival if she had been given the blood thinner Heparin as late as 8:15 a.m. on the morning she died, May 7, 2004.
Both Fenlon and Horan said that when Vest considered Greco may have suffered from a DVT, he should have ordered an ultrasound instead of relying upon a physical examination, which experts agree is only 50-60 percent reliable.
“When he didn’t order that ultrasound, he was negligent,” Horan said.
Willman told jurors during closing arguments that they have heard accusations that Vest and his employees should have known the unknown and expected the unexpected.
“These lawyers have the burden of proof to convince you that Dr. Vest and Mr. Spafford are responsible for the tragic death of Mrs. Greco,” he said. “They have not met that burden of proof.”
Willman stressed that Greco’s death was a terrible tragedy and he hoped they did not do anything to discredit their loss.
“There is no question that this was a tragic death that the family experienced,” he said.
He added that they empathized with the plaintiffs, but asked jurors to set aside empathy.
He said he hoped “that you would set aside what you feel in your heart and decide this case by what is in your head.”
Willman called Vest a “doctor in the trenches,” saying he gave more than usual attention to Tammy Greco’s injury and offered her same-day service when she called about tingling toes and numbness.
Willman said the plaintiffs’ counsel had been mixing up two different terms: consider and suspect. He said Vest considered a blood clot but did not suspect a blood clot.
He added that if Vest hadn’t considered the DVT, he would be criticized for not even considering it. When he saw no evidence of a DVT, he moved on to the other possibilities in his differential diagnosis list.
Willman also explained that all of the experts agreed that it is impossible to know when and where the blood clot formed. He added that the experts agreed they had never seen anyone die from a blood clot as a result of a sprained ankle.
During the 2013 trial, the plaintiffs had sought to prohibit media contact in the case, arguing that media stories had been written “in a manner that is favorable to the defendants and negative to the plaintiffs.”
Matoesian denied the request.
Jurors returned a verdict in favor of the defendants on April 16, 2013.
Horan and co-counsel Fenlon filed a post-judgment motion for a new trial on May 14, 2013, arguing that court testimony regarding unwitnessed conversations Vest and his staff had with Tammy Greco before her death violated the Dead Man’s Act.
The Dead Man’s Act prohibits testimony on matters that cannot be rebutted because of the death of the only other party to the conversation or witness to the event.
They also argued that the defense provided Kristen Jun as a “surprise witness” to testify that Greco had a family history of blood clotting disease.
Matoesian denied the motion for a new trial on July 5, 2013. The plaintiffs appealed.
The appellate court reversed Matoesian’s order on July 9, 2015 and remanded the case for a new trial.
On July 12, 2016, the plaintiffs filed a petition to substitute Matoesian.
“Throughout the pre-trial and trial proceedings, Judge Matoesian demonstrated a bias and partiality favorable to the defense, especially when the conversation included defense counsel Don Weber, a former Madison County Circuit Judge. A fair and scrupulous review of the court file and transcript evidences the inescapable conclusion of favoritism and bias.
“The Appellate Court opinion, remanding this case for a new trial because of the prejudicial rulings of the trial court, strongly suggests the lack of impartiality, favoritism, bias or interest upon Judge Matoesian,” the petition stated.
In a July 15 order, Matoesian recused himself. He wrote, “The undersigned disagrees with the motion to substitute judge and the allegations contained in the motion. However, in order to avoid delay the court recuses.”
The suit was originally filed in 2006. It was voluntarily dismissed in February 2010 and refiled in February 2011.
According to the complaint, Tamara, or “Tammy,” Greco, 36, sprained her ankle while bowling on April 29, 2004. She went to the emergency room that evening and was advised to elevate her leg, wear a brace, use crutches, apply an ice pack and see an orthopedic surgeon.
Tammy Greco visited Orthopedic & Sports Medicine Clinic PC in Alton the next day. She was diagnosed by physician’s assistant Douglas Spafford with a sprained left ankle and was placed in an Equalizer brace. She was instructed to return on May 14, 2004, for a follow up.
However, Tammy Greco was advised to come in on May 5, 2004, after she called complaining of a burning and numb feeling in her toes on her left foot. Vest allegedly performed a Homan’s sign test by pushing her foot back to determine if there was a presence of a deep vein thrombosis, or DVT. The test was negative.
Vest reported that the tingling in her toes was thought to be related to additional soft tissue swelling due to her obesity and the brace being too tight. The brace was loosened and Tammy Greco was told to ambulate as much as tolerated on her left leg. Vest told her to return May 19, 2004 for a follow up.
However, Tammy Greco died two days later when she was found unresponsive while in her vehicle in her employer’s parking lot. She was transported to St. Anthony’s Health Center and died less than two hours later. According to her death certificate, she suffered from a bilateral pulmonary thromboemboli due to immobility of her left foot.
The plaintiffs allege the defendants breached the standard of care in failing to order additional tests and failing to prescribe prophylactic anticoagulation medication upon her initial visit to the defendants’ office.
The defendants deny they breached the standard of care.
Madison County Circuit Court case number 11-L-140