Chip Robertson Jr., Kip Robertson III, and Kelly Frickleton represented a patient with a rare bowel disease and secured a $14.2 million verdict. Read the full article below:
A Missouri appeals court on Tuesday affirmed a $14.2 million jury verdict in a suit accusing two doctors of causing a patient’s severe bowel injuries, saying there was ample evidence supporting the jury's decision.
A three-judge Court of Appeals panel unanimously upheld the verdict in favor of Vincent Lowe in a suit accusing Dr. Bryan J. Menges and Dr. James D. Cassat of failing to timely diagnose and treat the patient’s rare bowel disease, mesenteric ischemia, which resulted in the surgical removal of a substantial portion of his lower bowel.
The suit claims Menges, an emergency room doctor, and Cassat, the ER’s on-call surgeon, both failed to order an ultrasound as recommended by a radiologist who observed possible signs of mesenteric ischemia in a CT scan, and they instead discharged the patient with a diagnosis of a back strain. Due to the negligence, Lowe now suffers from short bowel syndrome, which requires extensive ongoing medical treatment, according to the opinion.
The Franklin County jury found that Menges and his employer, Mercy Hospitals, were 65% at fault; Cassat and his employer, Mercy Clinic, were 25% at fault; and Lowe was 10% at fault.
On appeal, Menges argued there was insufficient evidence to support the jury’s decision. The panel disagreed, saying two medical experts testified that Lowe was suffering from mesenteric ischemia hours before he arrived at the ER and the doctor should have ordered an immediate ultrasound to rule out the disease.
And while Menges, upon Cassat’s recommendation, did instruct Lowe to schedule a future ultrasound on an outpatient basis, he still negligently discharged him, which allowed the disease to progress in the following days until it destroyed nearly half of Lowe’s bowel, “requiring several surgeries and resulting in a lifetime of needed care,” according to the opinion.
“The jury could reasonably have concluded that but for Dr. Menges's negligence, the hospital medical staff would likely have observed the progression of Lowe's mesenteric ischemia, made an accurate diagnosis, and treated it before such catastrophic damage resulted to Lowe's bowel,” the panel said. “The jury did not have to speculate that Dr. Menges caused Lowe's injuries — rather, there was substantial evidence to support that finding.”
Meanwhile, Cassat claimed he never formed a physician-patient relationship with Lowe. He only discussed the patient’s care with Menges over the phone, Cassat said, and therefore he owed no duty of care to Lowe The panel again disagreed, saying Cassat was contractually obligated to provide diagnoses of ER patients while on call.
“It is undisputed that Dr. Cassat participated in the diagnosis and treatment of Lowe by taking Dr. Menges's call, discussing Lowe's condition, and recommending that Dr. Menges order an outpatient ultrasound,” it said.
In a cross-appeal, Lowe asserted that the trial judge erred by awarding an immediate lump-sum payment of about $2.5 million, which only covered his past damages, such as medical expenses. It 10/15/2019 $14.2M Verdict Affirmed For Patient With Rare Bowel Disease - Law360 https://www.law360.com/articles/1204839/print?section=appellate 2/2 didn't cover about $5.1 million in attorney fees as part of a contingency fee agreement Lowe made with his lawyers, he said.
The panel agreed, saying a state law requires that contingency fees must be awarded upon final judgment.
“Because here the trial court was timely informed that Lowe had a contingency fee arrangement with his attorneys, the court was required to order the immediate payment of a lump sum sufficient to cover Lowe's attorney's fees,” the court said.
Attorneys for the parties did not immediately respond to requests for comment Tuesday.
Judges James M. Dowd, Colleen Dolan and Gary M. Gaertner sat on the panel for the Court of Appeals.
Lowe is represented by Edward D. Robertson Jr., Edward D. Robertson III and Kelly Frickleton of Bartimus Frickleton Robertson Rader and David M. Zevan and Rachel L. Roman of Zevan Davidson Roman LLC.
Cassat is represented by Philip L. Willman and Teresa M. Young of Brown & James PC.
Menges is represented by William Ray Price Jr., Jeffery T. McPherson and Paul L. Brusati of Armstrong Teasdale LLP.
The case is Vincent Lowe v. Mercy Clinic East Communities et al., case number ED106447, in the Missouri Court of Appeals, Eastern District.