original story by Greg Land of the Daily Report
A woman who claimed an emergency room doctor’s failure to provide prompt treatment for nerve damage caused by a ruptured disk and left her permanently incontinent and unable to work was awarded a post apportionment verdict of more than $3.1 million by a Gwinnett County jury.
The verdict was for $5.2 million, but the panel apportioned 40 percent of the liability to plaintiff Nicole Hill. Plaintiffs attorney Katherine McArthur said she was gratified that the jury could look beyond her client’s weight-Hill weighed 435 pounds when the incident occurred-and lack of resources to ensure that she received the justice she deserved.
“This trial speaks to discrimination against people who are morbidly obese and who have no insurance,” said McArthur. “The doctors either don’t want to examine them or they give them short shrift because they’re not insured.”
Nicole Hill is now largely confined to a wheelchair and must wear a catheter said McArthur, one of a trio of Macon lawyers who tried the case along with McArthur Law Firm associate Jessica Edmonds and solo Tracey Dellacona. Rush Smith Jr. of Hall Booth Smith, who defended the case with firm partner William Gordon Jr., said there would be no comment on the case.
According to McArthur and case filings, in June 2011 Hill was a 33-year-old certified nursing assistant with a history of back pain when she went to the emergency room at Houston Medical Center in Warner Robins complaining of pain in her hip and leg. Over the next two weeks Hill was taken to the emergency room four times, including three trips to the Houston facility where she was treated by ER doctor Jose Gumarin for pain and numbness in her legs, buttocks and vaginal area.
Gumarin diagnosed her with exacerbation of sciatica and released her with instructions to follow up with her family doctor and have an MRI-something that was impossible, said McArthur, as she had no insurance. A week later, Hill went to Perry Hospital emergency room complaining of decreased sensation, pain, incontinence and constipation. Her diagnosis was cauda equida (“horse’s tail”) syndrome, or compression of the nerve roots below the base of the spine, with acute disc herniation.
She was transported to Emory University Hospital Midtown and underwent surgery for a “huge” ruptured disc, but she suffered permanent loss of bladder function, bowel incontinence and difficulty in walking.
In 2013 Hill sued several defendants in Gwinnett County State Court, including the Houston Medical Center, Gumarin, the Peach Regional Medical Center where she had also received emergency care, and others. By the time the case went to trial, the other defendants had settled out for “very small” amounts, McArthur said, leaving Gumarin and his employer, EmCare Inc., as defendants.
McArthur said that during a pre-suit mediation the defense offered $150,000 to settle, raising it to $350,000 before trial. During a two-week trial before Judge Shawn Bratton, McArthur said the surgeon who operated on Hill at Emory, Gerald Rodts, provided key testimony at trial; other plaintiffs experts included Greenville, South Carolina-based emergency medicine specialist Martin Lutz and life care planner Kathy Willard. According to McArthur and court filings, Gumarin’s failure to order an MRI and otherwise fully diagnose Hill’s spinal compression delayed treatment that could have prevented her subsequent injuries if treated in time.
The defense portion of the pretrial order said Gumarin had informed Hill that she needed follow-up care and an MRI and that she was aware that the hospital was open 24 hours and that she could return at any time. McArthur said the surgeon who operated on Hill at Emory, Gerald Rodts, provided key testimony at trial; other plaintiffs experts included Greenville, South Carolina-based emergency medicine specialist Martin Lutz and life care planner Kathy Willard. Defense experts included Jackson, Mississippi-based emergency care physician Alan Jones, and Washington, D.C., neurosurgeon Matthew Ammerman.
In closing, McArthur said she asked the jury for between $5 million and $7 million, including a life care plan of $1.1 million and $345,000 in medical bills. McArthur said that, during the trial, the defense offered $750,000 during the trial. While the jury was out, that offer was raised to $1 million.
“At that point, I said we’d take the doctor’s insurance coverage of $2 million,” she said. That offer was declined. “I offered to meet in the middle at $1.5 million, and they said ‘no,”” she said.
Then the jury sent out a note indicating they might be unable to reach a verdict. By that time, Hill had been taken to the hospital for sepsis related to her catheter, and McArthur told defense counsel she would have to call her client. Foreseeing a hung jury the defense pulled the $1 million offer off the table, she said, and the adjuster then texted an offer of $500,000.
“At that point, we had no interest,” she said. After about 10 hours of deliberations, on May 26 the jury returned a verdict of post apportionment award of $3,120,000. McArthur said an agreement reached before the jury returned means there will be no appeal. In conversation with jurors afterward, McArthur said three members had been staunchly pro-defense but finally agreed to compromise on the comparative negligence.
She said the jury seemed to like Hill and appreciated her struggle. “It’s heartwarming that the jury could give her the dignity and respect she deserved,” McArthur said.
