Appeal argued in surgery case

Children’s Hospital’s insurer asks high court for new trial

Eight years after a surgeon removed the wrong part of a child’s brain during a bungled surgery at Arkansas Children’s Hospital, the victim’s family and the hospital’s insurance company are still battling in court, including a hearing Thursday before the Arkansas Supreme Court.

The parents of Cody Metheny want the court to reinstate the $20 million judgment handed down by a Pulaski County jury in September 2010.

Proassurance Indemnity Co. wants the court to toss out the verdict and order a new trial, arguing that Judge Ellen Brantley and the jurors bungled the case - badly enough that it deprived the insurance company of a fair trial.

Cody’s parents, Pamelaand Kenny Metheny, say a judge was wrong to lower the judgment from $20 million to $11 million - the insurance policy’s liability limit for a single incidence of malpractice.

David Ellington, an attorney representing Proassurance Indemnity, said the Pulaski County Circuit Court jury that awarded the child’s family $20 million should have first divided the fault between the actors involved and decided an award amount based on that allocation.

Justice Robert Brown questioned whether the jury in the original trial had already weighed the percentage of fault, even if it was not included on the jury verdict form.

“That determination was not made and as a result we respectfully submit that is the primary basis uponwhich Proassurance, Arkansas Children’s should have a new trial in this case,” Ellington said.

The lawsuit was filed about a year after Dr. Badih Adada, the former head of neurosurgery at the hospital, performed a surgery on Cody Metheny, then 15, to remove a lesion from the boy’s brain in August 2004.

The Arkansas Democrat-Gazette was invited to observe the surgery and take photographs, which were to be included in the boy’s medical records.

The doctor removed matter from the left side of the brain before he correctly performed the surgery on the right side, court filings show.

During the surgery, hospital staff “dismissed the media from the operating room without explanation,” according to court documents.

After the procedure, Adada told the Little Rock family that he had only made an incision on the left side and that there had been no damage to the brain.

The surgery, meant to alleviate the special education student’s epileptic seizure disorder, left the teen with “increased seizure episodes ... sleep problems, hallucinations, damage to his executive function skills” and pain and suffering, records show.

Adada admitted liability and reached a $1 million settlement with the family, but Grant Davis, a Kansas City, Mo., attorney who represented the family, said the hospital also should shoulder some of the fault because its staff members did not follow established procedures,showed negligence and did not inform the family about what had happened.

The filings with the Supreme Court were sealed because of the number of medical records that make up the case, but several filings with the circuit court were made available online.

In the original trial, the jury found that the hospital was at fault and awarded the family $20 million. But the award was reduced to $11 million after the insurance company argued that the terms of its policy with the hospital restricted coverage to that amount, according to court documents.

The attorneys representing the family appealed that decision, arguing that the policy provided additional coverage or that there was ambiguity in its writing.

Davis argued in court Thursday that a new trial should not be granted because the jury was aware that the trial was allocating fault to the hospital and not to the doctors.

The jurors were informed “at least 18 different times” that they were deciding whether the hospital was at fault in the case, Davis said.

Brian Brooks, a Greenbrier attorney who also represented the family, said in court that the hospital should shoulder some of the fault in the case because of a lack of training and not immediately informing the family. Metheny missed therapy opportunities because the family was not informed about what happened, he said.

Brooks said Brantley’s jury instructions were proper.

“There is no abuse of discretion when you tell the jury the law correctly,” Brooks said.

Adada left Arkansas in 2008. But he still possesses an active medical license in the state, which expires in April, said Brenda Engelhoven, regulatory administrative assistant for the Arkansas State Medical Board.

No disciplinary action has been taken against Adada since he was issued his license on Aug. 10, 2001, Engelhoven said.

Adada also holds an active medical license in Florida, which expires Jan. 31, 2014, according to information provided on the Florida Department of Health’s website. That license was issued in April 2008.

In 2010, he moved to Lebanon to serve as an associate professor of clinical surgery at the American University of Beirut.

Northwest Arkansas, Pages 9 on 12/07/2012

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