LITIGATION DEPARTMENT OF THE YEAR - Mid-Size Firm  ALM's Daily Report   2017 - 2016 - 2014

WWHGD Wins Case Claiming Negligence During Medical Procedure

Bob Tanner, a partner with Weinberg, Wheeler, Hudgins, Gunn & Dial LLC, recently obtained a defense verdict for his client in the case, Farley v. Dr. Richard Zellmer and North Metropolitan Radiology Associates. The trial, which took place before Judge Julie Carnes in the U.S. District Court for the Northern District of Georgia, lasted only three days.

The case involved a patient who was undergoing a barium enema, a procedure which takes place on a moveable table and x-ray machine so the doctor can examine during real-time various angles of the large colon. Once the plaintiff was tilted upright, at a 90 degree angle to the floor, he suddenly fainted, collapsed and hit his head on the equipment before anyone could reach him to assist. This accident is, in fact, a known risk of the procedure.

As a result of the fall, the patient suffered facial scarring. The plaintiffs lawsuit alleged every possible claim: that the patient had not been properly restrained on the moving table and too much time had elapsed before the procedure began, thereby increasing the likelihood of fainting. Their central argument was that the doctor and technicians present were not sufficiently attentive and, as a result, were unable to catch the patient and prevent his ensuing injury.

Plaintiffs counsel even produced a university professor as an expert witness, who testified that for a patient to suffer such an injury, the medical professionals must have doing something wrong. The key to victory for the defense came during cross-examination of this expert.

While the professor was willing to say that somebody on the medical team must have done something wrong, he was not exactly sure what or who. His ultimate theory was that injury can always be prevented when the medical team does everything correctly. When Tanner asked whether the expert gave a guarantee that his own patients would never be injured during a barium enema, he could not answer affirmatively, therefore rendering his whole premise faulty. The jury was able to deem invalid the experts claim that performing the procedure properly equated to no injury; otherwise, there would be no reason not to give a guarantee. The jury found for the defense on all counts.

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