Doctor Diagnosed Flare-Up Of Muscle Disease

$650,000 Verdict

Deborah Carter sued Dr. Sally Berger for medical malpractice, claiming that Dr. Berger failed to diagnose an emerging perforated colon that resulted in peritonitis.

On Aug. 20, 1997 Carver was admitted to Grove General Hospital in Grove, Okla., with complaints of abdominal pain. She was initially admitted by a surgeon but her care was transferred to Dr. Berger, an internal medicine physician, the next day.

Carver contended that Dr. Berger did not see her for about 60 hours after she became her patient and was seen by another surgeon in the interim. Nursing notes showed that Carver began experiencing elevated white blood counts, firmness and distension of the abdomen, spiking temperatures and ultimately respiratory problems.

When Dr. Berger saw Carver on Aug. 23 she noted that she believed Carver was having a flare-up of a pre-existing muscle disease process called polymyositis.

Carver's condition continued to deteriorate until she was transferred to St. John's Regional Medical Center in Joplin on Aug. 27. She was immediately evaluated by a pulmonologist, a gastroenterologist, infectious disease physician and a surgeon. Three days after being admitted she was diagnosed with a perforated colon. When surgery was performed, she was found to have sepsis caused by peritonitis and about 15 inches of her colon were removed. Since then she has had several surgeries due to abscess formation and adhesions.

In her lawsuit Carver contended that Berger failed to diagnose an emerging perforation in her ascending colon, failed to obtain a prompt surgical consult when her condition worsened and failed to transfer her to a trauma care facility in a timely manner. Dr. Berger said she accurately diagnosed and treated Carver's condition, that Carver's use of steroids for her polymyositis caused her clinical picture to be confusing, and that the physicians at St. John's — who were not defendants in the case — also had problems determining what was causing the ongoing abdominal problems.

No offer was made before trial. Carver's attorneys asked the jury for a verdict in the range of $300,000 to $500,000. After about 2 1/2 half hours of deliberation the jury returned a verdict for $650,000. The case was subsequently settled while post-trial motions were pending for $750,000, which included prejudgment interest and costs.

Type of Action: Medical malpractice

Type of Injuries: Perforated colon, peritonitis

Court/Case Number/Date: Delaware County Circuit Court/CJ99-150/Oct. 14, 2002

Caption: Carver v. Berger

Judge, Jury or ADR: Jury

Name of Judge: Robert Haney

Verdict or Settlement: $650,000 verdict

Special Damages: $115,000 past medical expense

Allocation of Fault: 100 percent to defendant

Last Offer: $0

Last Demand: $300,000

Attorneys for Plaintiff: Roger Johnson, Scott Vorhees and Scott Gallagher, Little Little Gallagher & Johnson, Joplin

Insurance Carrier: Not disclosed

Plaintiff's Experts: Dr. Brian Murphy, Joplin (internal medicine); Dr. Herbert Rubin, Beverly Hills, Calif. (gastroenterologist)

Defendant's Experts: Dr. Steven Filmore, Ada, Okla. (internal medicine); Dr. C.J. Thompson, Tulsa, Okla. (surgeon)