LITTLE ROCK — The state Supreme Court on Thursday upheld a lower court’s ruling that Arkansas Children’s Hospital shared some of the fault for a botched surgery performed on the wrong side of a child’s brain.
In the unanimous decision, the court said ProAssurance Indemnity Co., the hospital’s liability insurance carrier, must pay the family of Cody Metheny $11 million in damages.
The ruling was the final one in a lawsuit dating back to August 2004, when Metheny, then 15, had surgery to remove a lesion from the right side of his brain, a procedure designed to stop his epileptic seizures.
An Arkansas Democrat-Gazette reporter and photographer were invited to watch and photograph the surgery, which was done by Dr. Badih Adada, Arkansas Children’s Hospital’s head of neurosurgery at the time.
Adada began the surgery by making an incision on the left side of Metheny’s brain and removing and damaging “significant portions” on that side, according to the family’s complaint.
When Adada realized his error, he asked the reporter and photographer to leave the room and then did surgery on the correct side of the brain but did not inform the child’s parents of the mistake.
The surgery, which was to take four hours, ended up lasting eight hours.
Afterward, Metheny’s intelligence deteriorated and his seizures continued, his parents said. They accused the hospital and the surgeon of malpractice and said their son’s life had been permanently altered.
Adada, who also is a former physician at the University of Arkansas for Medical Sciences, reached a settlement in a separate lawsuit with the family.
The doctor, who has an active medical license in Arkansas, worked for a time in Florida before taking a position at the American University in Beirut.
In January 2009, Metheny’s parents — Pamela and Kenny Metheny — filed a lawsuit against the hospital and ProAssurance, purporting administrative and medical negligence.
In a September 2010 trial, the jury found in favor of the Methenys and awarded $20 million in damages. In a hearing after the trial, a judge reduced the amount to $11 million, saying that the hospital’s insurance policy covered only up to $11 million.
Both sides appealed the ruling. The family wanted the $20 million award reinstated, saying that the money was needed to provide their son with a lifetime of expensive medical services.
ProAssurance asked for a new trial, arguing that the judge gave incorrect jury instructions.
Attorneys representing both sides argued the case before the state Supreme Court in a hearing last week.
In Thursday’s ruling, Associate Justice Donald L. Corbin wrote that there was only one defendant in the case, ProAssurance Indemnity, and that the jury clearly knew that it was addressing only the fault of the hospital.
“Here, the circuit court properly instructed the jury not to attribute any fault of the UAMS physicians to [Arkansas Children’s Hospital] and to allocate the fault of [Arkansas Children’s Hospital] only to Proassurance,” Corbin wrote in the opinion.
The court also agreed with the circuit court’s ruling that the amount awarded to the family should not have exceeded $11 million, the limit on the policy terms.
According to the ruling, ProAssurance provided a $10 million maximum-liability limit in addition to the policy limit of $1 million.
Corbin referred to the direct-action statute, which states that an insurer is liable only to the extent of its policy, and said the surgery and its aftermath should be considered as a single event, not a series of events that included failing to promptly notify the family.
“Considering the language of the policy and this statute, which limits liability to the extent of coverage in the policy, we cannot say that the circuit court erred in reducing the jury’s verdict to $11 million,” Corbin wrote.
Arkansas, Pages 11 on 12/14/2012