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New testimony ordered by appeals court makes little difference in outcomeBy Katheryn Hayes Tucker Daily Report
Quest Diagnostics Responsible for Catastrophic Injury to Patient During Routine Blood Draw- Jury Awards total of $5.4 MillionApril 20, 2012 – A Fulton County jury returned a verdict Friday against Quest Diagnostics and its Alpharetta-based subsidiary, Quick-Med, Inc., for $5,459,255, after a medical technician caused permanent nerve damage to Mr. Michael Bowbliss of Buford, Georgia during a routine blood draw as part of a life insurance examination. After seven hours of deliberation, the jury reached a verdict totaling $3,459,255 for Mr. Bowbliss’ claims, and $2,000,000 for Dee Anna Blowliss and her children’s loss of consortium claim, one of the largest loss of consortium awards in Georgia history. “As a result of the blood draw, Mike suffered permanent damage to the median nerve of his right arm, a major nerve about as wide as a Number 2 pencil that runs down the middle of the forearm into the hand,” said Lloyd N. Bell, the attorney for Bowbliss. “The nerve injury led to the onset of Complex Regional Pain Syndrome, Type II, a debilitating chronic pain condition which has no known cure,” said Bell. “The injury’s effect on Mike’s wife and children is also profound, and the verdict and award speak to that loss,” added Nelson Tyrone, attorney for Mrs. Bowbliss. “In May of 2009, Quest Diagnostics sent a medical technician to the home of 34-year-old Michael Bowbliss to conduct a routine life insurance exam,” said Bell. “The technician, Patricia Robinson, inserted a needle into Bowbliss’s right arm to obtain a blood sample. When she inserted the needle, Bowbliss screamed in pain and felt immediate burning and tingling down his arm and into his hand. Ms. Robinson continued to probe, repositioned the needle, and eventually drew blood, despite Mr. Bowbliss’ obvious pain.” “After she removed the needle, the pain remained and did not go away,” continued Bell. “A few days later, Bowbliss contacted Quest and reported that his arm felt like it was on fire since the needle stick. He asked what he should do. Quest advised Bowbliss to get immediate medical attention, which he did.” “Since the injury, Mike’s life has been spent in doctor’s offices and examination rooms trying to treat his pain and disability. He was finally referred to The Shepherd Center, one of the finest catastrophic care hospitals in Atlanta, and has been getting excellent treatment from Dr. Erik Shaw, a specialist in treating complex regional pain syndrome,” Bell said. “Dr. Shaw is using some the most advanced, cutting-edge treatment options available to help control the pain including Ketamine infusions and various nerve blocks. Mike is grateful to Dr. Shaw and the entire team at Shepherd Center, and he is hopeful about the future, but Mike knows this will be a condition he will have to work to manage for the rest of his life,” said Bell. “Despite overwhelming evidence of fault and catastrophic injury to Mike and his family, Quest and Quick-Med never acknowledged any responsibility,” said Bell. “From the beginning, Quest and Quick-Med made it clear they did not care about Mike and his family. In fact, the only offer to settle the defendants ever made before the verdict was entered occurred during trial – an offer of $5,000,” said Bell. “A young, healthy man who has given blood dozens of times in his life without incident, should not get his median nerve sliced during a routine life insurance exam,” said Bell. “Mike filed suit to find out why this happened and hopefully prevent this from happening to someone else,” continued Bell. “In discovery we found that Quest and Quick-Med had hired a medical technician to perform blood draws without ever observing her technique and without confirming that she understood the standard of care,” said Bell. “At her deposition, Ms. Robinson testified it was her practice to insert the needle into the arm at a 45 degree angle, which everyone in the case agreed violated the standard of care,” said Bell. “She also admitted she kept the needle in Mike’s arm after he expressed pain, another clear violation of the standard of care,” said Bell. “A properly trained medical technician knows that the only acceptable angle of entry is 30 degrees or less, and that if a patient ever expresses pain, the needle should be removed immediately, and certainly not repositioned.” Mr. Bowbliss’s wife, Dee Anna, also brought an independent claim against Quest Diagnostics and Quick-Med for the loss of marital services, what is known under Georgia law as a “loss of consortium” claim. “Georgia law recognizes and values marriage,” said Dee Anna Bowbliss’s attorney, Nelson O. Tyrone. “When one partner in a marriage suffers terrible injury, the impact on the marriage is profound,” said Tyrone. “By representing Ms. Bowbliss on this issue, I was able to help the jury understand the life-altering impact Mike’s injury has had on the marriage and their three young children. In a very real sense, Quest and Quick-Med have pulled this family apart and changed their lives forever. The verdict speaks to that loss.” The verdict for Mike and Dee Anna Bowbliss of $5,459,255, included damages for Mike Bowbliss’s claims totaling $3,459,255 and $2,000,000 for Dee Anna Bowbliss’s loss of consortium claim, one of the largest such awards for loss of consortium in Georgia history. After the verdict was entered, Judge Patsy Porter reduced Mr. Bowbliss’s verdict by approximately $1,600,000, which represented the cost of two medical procedures, a spinal cord stimulator and intrathecal pump, both treatment options to help control the pain. “The court determined the cost of the future treatments was too speculative,” said Bell. “While I respect the Court’s decision, I strongly disagree with it, and am confident Mike will ultimately receive all the money the jury found he was entitled to,” said Bell.
Gwinnett jury returns $2.3 million verdict in slip-and-fall lawsuit against Kroger
On December 16, 2011, in the case of Harper v. Barge Air Conditioning, Inc., the Georgia Court of Appeals re-affirmed its commitment to safeguarding the right to a fair and impartial jury. The Court determined that my client, Jocelyn Harper, who suffered severe brain injury after exposure to carbon monoxide at her place of employment, was denied a fair trial when the trial court allowed two prospective jurors to remain on the panel after they expressed clear bias in favor of the defense. For example, one of the jurors was the personal accountant of the defense lawyer and a client of the defense lawyer. During jury selection (“voir dire”) I asked the accountant whether he would “be inclined to try to find in [defendant's] favor.” The prospective juror responded, “What do you think? Of course.” Despite a motion to strike the juror for cause, the trial court allowed him to stay on the panel along with another juror who expressed similar bias. In a strongly worded opinion, The Court of Appeals reversed the trial court, and made it abundantly clear that it will safeguard the right of Georgia citizens to a fair and impartial jury trial. As Justice Dillard wrote:Accordingly, we reverse the judgment in favor of Barge and remand the case for a new trial. In doing so, we “deplore the significant burden a [second] retrial will impose, not only on the parties, but on the community as well,” and “[w]e are particularly troubled by the trial court’s willingness to infect a trial with this kind of error when a solution (excusing the juror[s] for partiality) was so readily available.” Nevertheless, we remain steadfast in our commitment as a Court to safeguarding the sacrosanct and cherished right to a fair and impartial jury trial, and we will continue to remand this case back to the trial court until Harper is provided with same.
The Georgia Supreme Court recently disbarred two personal injury lawyers who were caught using “runners” to seek out and solicit clients. In the Matters of Thomas C. Sinowski and Steven F. Freedman, the Court concluded Attorneys Sinwoski and Freedman violated multiple Bar Standards and are now forbidden from further practicing law – a professional “death penalty.”
The use of “runners” is an unethical practice where a lawyer will pay non-lawyers to approach potential clients and refer them to the lawyer. Oftentimes, the runners will stake out hospitals or trauma care centers hunting for people involved in serious car wrecks. The runners will “innocently” approach a grieving family member, maybe at a vending machine or in the lobby, and “suggest” they contact a certain lawyer. The practice undermines public confidence in the legal profession further contributing to the false perception that all personal injury attorneys are unethical “ambulance chasers.” Even worse for the clients, the attorneys who use runners quickly develop a reputation for poor legal work and selling out their clients for a quick settlement.
The use of runners continues throughout Georgia, and the public should be alert to the practice. For example, just a few days ago, I was contacted by a young woman who had been in the hospital for 6 weeks. She was involved in a terrible car accident which resulted in multiple fractures of her vertebrae. When I met her in the hospital, she told me a lawyer from one of the large “billboard advertising firms” had come by her hospital room about 3 days after the wreck pushing her to sign a attorney contract. Fortunately, the client had the good sense to keep all the paperwork, the name of the attorney and the pertinent details to support a Complaint to the State Bar – which is forthcoming.
It is unfortunate that every profession has its share of “bottom dwellers” who will engage in unethical and illegal conduct to try and gain advantage. The legal profession is no different. With its recent decision disbarring Sinowski and Freedman, the Georgia Supreme Court has demonstrated that such conduct will not be tolerated in Georgia.
“Whoever falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States, any of the service medals or badges awarded to the members of such forces, the ribbon, button, or rosette of any such badge, decoration, or medal, or any colorable imitation of such item shall be fined under this title, imprisoned not more than six months, or both.”
The lower courts that have considered challenges to the act have reached different conclusions. In July 2010 a federal district court in Denver ruled that the act violates free speech, and rejected the argument that lying about having military medals dilutes their meaning and significance. A month later, the 9th U.S. Circuit Court of Appeals also considered the issue in a separate case (the Alvarez case), and held that the “speech” involved in the case — lying about being awarded military medals — was within the scope of the First Amendment. The 9th Circuit therefore applied “strict scrutiny review to the Act, and [held] it unconstitutional because it is not narrowly tailored to achieving a compelling governmental interest.” The court observed that if the Stolen Valor Act was constitutional, as argued by a dissenting judge, then there would be no constitutional bar to criminalizing lying about one’s height, weight, age, or financial status on Match.com or Facebook, or falsely representing to one’s mother that one does not smoke, drink alcoholic beverages, is a virgin, or has not exceeded the speed limit while driving on the freeway. The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the government’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing court’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech. I suspect the Supreme Court will strike down the act as unconstitutional, while rightly condemning those who would peddle lies about imagined battlefield glory. It is hard to imagine that a court which regards a stripper’s activities as protected “free speech” would uphold an act criminalizing true speech, however malignant.