was inconsistent as to who knew about the symptoms, and when. Even after everyone concerned realized Gary had had a stroke, which might have been preventable if prompt action had been taken, no one involved saw fit to ask any questions of anyone else, or even discuss the matter, and none of the hospital administration or supervisory staff ever asked any questions after the fact.
Settlement Against Less Than All Defendants Evolving Case Theme
At the settlement conference it became clear that the defendants could not agree on their respective percentages of fault, so the plaintiff made the decision to try to settle the case with any or all of the defendants, together or separately. Under Kansas law each defendant is only responsible for that portion of the total damages accounted for by it's negligence, and non-economic damages are capped at $250,000. Approximately seven weeks before trial, settlement was reached with the surgeon for his policy limits of $1,000,000; three weeks later settlement was reached with the anesthesiologist for $100,000; and two weeks before trial settlement was finally reached with the hospital for $500,000, for the total of $1,600,000.
The unusual and challenging feature of the case during the final preparation and negotiations was how to present the case at trial against the hospital alone, when the plaintiffs' own vascular surgery experts made a very strong case against the surgeon in their depositions. There was no way to keep the jury from knowing that the surgeon and the anesthesiologist had been sued, and that they had |
settled. But the admissibility of the terms of the settlement was within the discretion of the trial court and the court's determination was still unknown. From the plaintiff's standpoint, the idea was to focus on the nurses' conduct to maximize the percentage of the hospital's fault, knowing that substantial, if not the majority of the fault, would be placed on the defendant surgeon. The case theme was that all three of the defendants together were Gary's "health care team," and they all had a obligation to work together to protect his health and safety. In this particular case the problem was communication and documentation. The nurses are the physicians' "eyes and ears," and, as such, are responsible to facilitate communication among members of the health care team. For credibility, the plaintiff would continue to maintain criticism of the surgeon and anesthesiologist, |
but no longer had any obligation to make the case against these defendants. That was now the hospital defense counsel's job. Ultimately, the credibility issues were the most important. Who said what to whom and when? The whole team failed. Communication had broken down. Nobody could explain what happened. Since communication and documentation are first and foremost the responsibilities of the nurses, the focus of criticism could fairly be placed on the hospital. At least the doctors were accepting their responsibility, the argument goes. The hospital would have to accept its responsibility as well. Eventually it did. The injuries and damages to Gary, and his wife, are severe. The brain injury changed his life, and their lives together. Un-fortunately, even this substantial settlement will not relieve Gary and his family of the long-term burdens of a tragic unnecessary brain injury.
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