Connecticut Dentist charged with homicide…

by wpadmin on February 21, 2015

As trial lawyers in Connecticut, we get a unique opportunity to really delve into the hearts and minds of community members in what we refer to as the process of voir dire.  The word voir in this context is an old French word meaning “truth”.  The phrase voir dire refers to the manner in which attorneys question prospective jurors about their backgrounds and potential biases before being chosen to sit on a jury.  In most states and the Federal system, this is predominantly done in a group setting… that is, attorneys for each side get an opportunity to question potential jurors in the presence of all other potential jurors.  In Connecticut, however, voir dire is conducted individually.  The right to question potential jurors in isolation and outside the presence of the other jurors is not only the law but a Constitutional right guaranteed by Article I, Section 19 of the state Constitution.

Stella Liebeck (the infamous 79 year old woman who sued McDonald’s) was burned on February 27, 1992.  The verdict of 2.86 million was rendered by a New Mexico civil jury on August 17, 1994.  So why am I writing about this case now you ask?  Well, I recently had an opportunity to question potential jurors in a personal injury case in Hartford.  During my questioning of each juror, I raise the topic of tort reform.  For those unfamiliar with the phrase, tort reform is the idea that our civil justice system makes it too easy for regular folks to sue big businesses and recover hundreds of thousands of dollars in so-called frivolous lawsuits.  Proponents of the movement argue that plaintiffs’ attorneys are a menace to society by bringing lawsuits that undermine the quality and availability of health care, ruin the local economy, raise the prices of goods and services and threaten religion.

So I ask each potential juror whether they have ever given any thought to the United States civil justice system or personal injury lawsuits in general.  This usually leads to a discussion about what they have heard about personal injury lawsuits on television and in the newspaper.  Keeping in mind the fact that the voir dire process I recently participated in in Hartford was some 10 years after the McDonald’s hot coffee verdict and some 2,000 miles away from the court where the case was heard, it is amazing how many people still bring up the McDonald’s hot coffee case.  It is even more amazing how many people are misinformed about the facts.

What did the lady think would happen when she drove off with a hot cup of coffee between her legs?”  “How is it McDonald’s fault that the lid popped off and she spilled coffee on her lap while driving?”

One common misconception from jurors is that Stella Liebeck was driving when she was burned by the scalding hot coffee.  The truth is… Stella was actually sitting in the front passenger seat of her grandson Chris’s parked car when the incident occurred.  After proceeding through the drive-through, Chris pulled his car into a nearby parking space to allow Stella to mix in her cream and sugar.  Stella placed the Styrofoam cup between her knees and using both hands pulled off the lid.  Within seconds, the entire cup of 190 degree coffee spilled into Stella’s lap.  The sweatpants that Stella was wearing absorbed the hot coffee like a sponge and held it against her skin.

“That is an absorbent amount of money to compensate someone for such minor burns.

Another common misconception from jurors I have spoken to is that Stella only received minor burns from the incident.  The truth is… Stella actually suffered excruciating third degree burns (the worst kind) to her inner thighs, groin and vaginal area.  Stella was hospitalized for a total of 8 days and underwent several painful wound care and skin grafting procedures.

McDonald’s served its coffee just as hot as the rest of the industry.

Another common misconception from jurors is that McDonald’s served its coffee just as hot as the next guy.  The truth is… McDonald’s had a policy in which it was directed to keep its coffee between 180 – 190 degrees.  At 180 degrees, hot liquids can cause severe burns to human skin anywhere between 2 and 7 seconds.  At the time of Stella’s incident, most other commercial establishments were serving their coffee between 130 and 140 degrees.  Compare that to the coffee we drink at home which is served at approximately 135 degrees.  As Stella’s lawyer pointed out during trial, “the coffee was at a temperature that would be equal to the temperature of your radiator fluid after driving”.

This was the one and only complaint McDonald’s received about the temperature of its coffee being too hot.”

Another common misconception from jurors is that Stella was the first person to complain to McDonald’s about the temperature of its coffee being too hot.  The truth is… McDonald’s had received approximately 700 previous complaints and had paid out over $500,000 in burn claims.

2.86 million dollars is an exorbitant amount of money to compensate Stella for her burns.”

Another common misconception from jurors is that Stella was awarded millions of dollars in compensatory damages, that is, to make up for the harm she suffered as a result of the burns.  The truth is… Stella was only awarded $200,000 in compensatory damages which was later reduced by the Judge to $160,000.  The 2.7 million dollar punitive aspect to the verdict was calculated by the jury not to compensate Stella but to punish McDonald’s for knowingly keeping its coffee at dangerously high temperatures.  The jury apparently calculated the punitive aspect of the verdict based upon McDonald’s company-wide revenue for two-day’s sales of coffee.

“Stella is just another money hungry consumer looking to take advantage of our civil justice system.”

Another common misconception from jurors is that Stella decided to sue McDonald’s immediately on some kind of get rich quick scam.  The truth is… Stella actually offered to settle with McDonald’s for approximately $20,000 to avoid a lawsuit.  In response, McDonald’s offered Stella approximately $800 when she had already incurred approximately $10,500 in past medical expenses, $2,500 in future medical expenses and approximately $5,000 in lost wages.

It is easy to make light of a case that sounds like a woman was able to successfully sue McDonald’s for millions of dollars for spilling hot coffee on her lap.  And the insurance industry knows it.  Which is why it has spent millions of dollars making it the poster child for what is wrong with America’s civil justice system.  But a little knowledge into the actual facts of the McDonald’s case goes a long way towards understanding just how vital our civil justice system is in leveling the playing field between average consumers like Stella Liebeck, big businesses like McDonald’s and moneyed special interests like the insurance industry.  So the next time you hear someone belittle the McDonald’s case and cite it as an example of what is wrong with modern day America, politely find out how much that person truly knows about the facts of the case.  You will be amazed at just how misinformed the majority of the public really is about what truly happened to Stella Liebeck in 1992.,0,5461473.story?track=rss&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:%20latimes/news/nationworld/nation%20(L.A.%20Times%20-%20National%20News)

As if the controversy over what constitutes legal death in this country, given all of the competing moral and ethical dilemmas involved, isn’t complicated enough, think about it when the deceased person is pregnant.  The husband of such a person just “won” a court battle against a Texas hospital that believed the law required it to keep the deceased woman on life support in light of the unknown status of the unborn fetus despite his demands to remove her.

Cruel and unusual punishment, which is strictly prohibited by the 8th Amendment to the United States Constitution, has been defined by the US Supreme Court as punishment that is too severe for the crime; that is arbitrary in nature; that offends society’s sense of justice; or that is less effective than a less severe form of penalty.  When it comes to cruel and unusual punishment, the Supreme Court has taught us that the death penalty itself, although an extreme sanction reserved for the most extreme crimes, is not inherently cruel.  We have also learned that various methods of putting people to death are not, in and of themselves, cruel, such as shooting, hanging, electrocution and lethal injection.  So if Dennis McGuire, who admitted to brutally raping and stabbing a pregnant woman in 1989, was recently put to death by lethal injection after all of his appeals ended after a jury demanded he be executed, what is the problem?  Apparently, McGuire’s family is not pleased with the fact that McGuire was administered a concoction of drugs never before used in the United States that took approximately 24 minutes to kill him, during which time he was seen gasping and snorting several times.  Opponents of the death penalty will certainly have new fodder for the debate.  But even proponents must acknowledge the interesting twist this case presents because of the never before used combination of drugs.  Apparently, the state of Ohio recently ran out of the tried and tested narcotic and sedative barbiturate known as pentobartbital and amended its execution policy to allow for the use of midazolam and hydromorphone, which is what was used in McGuire’s execution.  There are currently 138 men and 1 woman on death row in Ohio.  Not only will it be interesting to see the outcome of the McGuire case, it will also be interesting to see if any of the other 139 people are put to death with the same combination of drugs.

A man who fractured his leg in a near head-on collision in Shelton after running a stop sign he claims he could not see due to overgrown vegetation has recovered more than $338,000 following a jury trial in Derby.

The plaintiff, who was ticketed by police at the accident scene, was found not-at-all responsible by the jury in his lawsuit against the city under the state’s highway defect statute. The plaintiff argued it was the city’s fault for not clearing the shrubbery that covered the stop sign.

On June 19, 2012, at around noon, Ernest Hutchinson V was driving in a residential neighborhood in Shelton and came to an intersection where Walnut Tree Hill Road runs into Ripton Road. Though he was living in Shelton at the time, Hutchinson was unfamiliar with this area, according to his lawyer, Jeffrey Cooper, of Cooper Sevillano in Bridgeport.

“Our claim was that the stop sign located on the corner was concealed with overgrown vegetation but that the overgrown vegetation also blocked the driver’s view of the western most portion of Ripton Road,” Cooper explained. “As he continued through the intersection, another car kept going on that portion of the road and there was a violent collision between the two cars.”

The other driver, Ryan Zahornasky, 22, of Shelton, was injured and taken to the hospital. The extent of his injuries are unknown; he did not sue Hutchinson or the city, according to Cooper.

Hutchinson, meanwhile, was taken to St. Vincent’s Medical Center in Bridgeport and diagnosed with an open tibia-fibula fracture. Cooper said a piece of the leg bone was sticking out from Hutchinson’s right shin. At the hospital, doctors put his bone back into place and then waited for the swelling to subside before performing surgery later that evening. They placed a rod in Hutchinson’s leg that ran from below the knee down to near the ankle, with two screws keeping it in place. The hardware will remain permanently in Hutchinson’s leg, Cooper said.

Meanwhile, Hutchinson was ticketed by police at the accident scene for failing to obey a stop sign. However, Cooper explained that officers investigating the accident also did something that significantly helped his client’s case against the city.

The supervising sergeant took it upon himself to take photos of the stop sign covered in vegetation. The sergeant later testified at the trial that he ordered the road to be closed down until Shelton’s highway department was able to respond and cut back the brush. Cooper said he believed that testimony was “instrumental” in proving their case to the jury. Cooper said the photos of the vegetation were also convincing.

Leading up to the trial, Cooper was aware that a work order had been put in with the city’s highway department and the shrubbery had been trimmed. However, he said, “until the trial, we had never gotten information that [the sergeant] had specifically kept the road closed until the highway department got there.”

The city was represented by Jeff Schwartz, of the Law Office of Charles G. Walker. Schwartz could not be reached for comment for this article.

But at trial, Schwartz argued that Hutchinson was responsible for the crash, not the city. Specifically, the attorney claimed that there is a sign warning motorists that there is a stop sign ahead in 500 feet and that Hutchinson should have seen that. Further, the defense argued that the driver should have at least seen the white line on the road marking the point where traffic is supposed to stop even if he did not notice the sign itself. The defense also claimed he should have known he was approaching a controlled intersection and that the road didn’t continue. Finally, the defense also contended that Hutchinson was distracted by his GPS device in the car because he was unfamiliar with the area.

Cooper said the defense did not contest the nature and extent of his client’s leg injury but did question the extent that it affected his life. But the defense did bring up Hutchinson’s troubled past. He had been in and out of drug treatment programs. “Because we were making a claim for noneconomic damages, a lot of that was elicited on cross-examination,” said Cooper. “I think that the jury was able to see a young man who had gone from somewhat of a troubled past to really getting his life together.”

Cooper explained that Hutchinson had always held manual labor-type jobs, such as landscaping work. Due to the lingering pain in his leg, he realized he wouldn’t be able to do that kind of work for the rest of his life. So Hutchinson, now 26, finished community college and plans to attend a four-year college in Vermont next year.

Cooper said there were no settlement offers before trial. After the first day of evidence presentation, the defense asked for the plaintiff’s demand. Cooper requested $160,000. The defense countered with $50,000. Cooper then asked for $140,000 hoping to get another offer but the defense did not come off of $50,000.

Altogether, five witnesses testified at the three-day trial, including the plaintiff. Superior Court Judge Barry Stevens presided. The jury deliberated for about three hours and then rendered a verdict in the plaintiff’s favor for $338,633. Of that amount, $108,633 was for his economic damages and the remainder his noneconomic damages.

“Ultimately, I think what the jury bought was that had the city maintained this area, I don’t think this accident would have ever happened,” said Cooper.

Cooper Sevillano recently proved that in colorectal surgery, centimeters matter.

In 1998, John Doe was diagnosed with a debilitating condition of the digestive tract known as ulcerative colitis.  Considered 1 of 2 major types of inflammatory bowel disease (the other being Crohn’s), ulcerative colitis causes inflammation of the lining of the large intestine (colon) and rectum which results in tiny tears, or ulcers, full of puss and mucous to develop.  While the main treatment for mild to moderate cases of UC has been addressed to using different types of medications, surgery is indicated for patients whose symptoms cannot be controlled with drugs alone.

By 2008, despite taking several heavy duty medications including up to 20 mg of Prednisone twice a day, John was experiencing anywhere from 12 to 15 painful bloody bouts of diarrhea a day and had lost nearly 50 pounds.  After the Hospital’s medical team failed to bring his symptoms under control, John was visited by an experienced colorectal surgeon who informed him that he could essentially cure him by removing his entire large intestine and rectum.  Because UC only affects the large intestine and rectum, the surgeon explained, complete removal of John’s organs would eliminate the origin of the disease.  But not without significant medical, social and physical drawbacks, the surgeon explained, the most significant of which was learning to live with what was described as a temporary colostomy bag.

John’s surgeon explained that he would perform a three-step operation called a restorative proctocolectomy with ileal pouch-anal anastomosis and end ileostomy:

  1. In the first surgery, he would remove John’s entire colon and create a temporary ileostomy.  A temporary ileostomy, or a diverting ileostomy or loop ileostomy, is where both the upstream and downstream sides of the small intestine is brought out through the abdomen like a double barrel shotgun.
  2.  In the second surgery, he would remove John’s  rectum to the level of the anal transitional zone being careful to preserve his anus and anal sphincter muscles and then create a J-shaped pouch or reservoir out of his small intestine which he would then pull down and connect to his anus to allow for a functional elimination of waste.  At the end of the operation, the surgeon would leave John with the temporary ileostomy for a period of time to divert stool away from the pouch to allow it to heal.
  3. In the third surgery, he would close the temporary ileostomy and reattach the small intestine to the pouch thereby allowing John to begin using the newly created pouch and pass stool through his anus.

John’s surgeon explained that as with all surgeries, these operations posed serious risks such as death, injury to surrounding tissues, injury to surrounding organs, bleeding, infection, internal scarring, erectile dysfunction and prolonged pain.  However, John’s surgeon also explained that he was a nationally renowned surgeon and very experienced in IPAA surgery.  In the condition that he was in, John had little choice but to agree with the plan.

What John did not know, however, was just how precise his surgeon needed to be when removing his rectum in the second operation.  Because UC affects both the entire large colon and rectum, the surgeon must take care to leave behind not more than a 1 to 3 cm segment of rectum.  Although this 1 to 3 cm of rectum is necessary to preserve normal bowel function, any more than that significantly increases the risk of persistent UC disease and the development of cancer.  Worse than that, John’s surgeon never told him that he would only have 1 chance to get it right.  As with most abdominal surgeries, the chance of a successful re-operation diminishes significantly after each one.

Having endured the three-step operation over a period of approximately 9 months, John could not understand why he was continuing to exhibit symptoms of the disease.  Compelled to seek a second opinion from a non-area hospital, John learned that his ongoing problems (mainly mucous and bloody drainage emanating from his anus) were directly related to the fact that his surgeon left behind approximately 7 to 8 cm of retained rectum that was both ulcerated and inflamed.  Although John’s second surgeon attempted to surgically remove the residual rectum, the operation could not be completed safely.  Instead, the surgeon had no choice but to leave John unknowingly with a permanent ileostomy to try and keep stool and contaminants away from his rectum in an effort to reduce his chronic symptoms of bloody leakage.

When John came to Cooper Sevillano, he had already been told by two experienced medical malpractice attorneys that he did not have a case against his surgeon.  Although there was no question in their mind that John received a less than optimal result from his surgeries, they did not feel they could prove his ongoing problems were caused by any violations in the standard of care for colorectal surgeons performing IPAA surgery in the United States in 2008.

When Cooper Sevillano began investigating the quality of John’s medical care, it became increasingly suspicious that the first surgeon never definitively diagnosed the cause of his ongoing issues following the three-step operation.  Although at that time the set of medical records from the second surgeon were not complete, Cooper Sevillano uncovered a record of a flexible sigmoidoscopy that the second surgeon performed that showed approximately 7 to 8 cm of retained rectum that appeared to him to be diseased.  Little did CS know at that point how crucial those extra 5 to 6 cms really were for John’s case.

From there, Cooper Sevillano honed in on the standards of care associated with the proper dissection of the rectum when performing a restorative proctocolectomy with ileal pouch-anal anastomosis and end ileostomy in three steps.  Cooper Sevillano was able to prove that in 2008, the standard of care for colorectal surgeons like John’s first surgeon was to leave behind no more than 1 to 3 cm of rectum when performing this type of surgery.  Notwithstanding the fact that John was left with an unreasonably long segment of rectum, and still exhibiting symptoms, his surgeon and his attorneys were not so quick to accept responsibility for the mistake.

In his defense, the surgeon basically indicated that he had done the best he could do under the circumstances.  First, he indicated at his deposition that John’s anatomy was so narrow that he could not reach the intended dissection level.  Second, he indicated at his deposition that he needed to dissect the rectum at the level he did in order to create a tension-free J-pouch because the pouch he created would not stretch far enough down to reach the intended level.

In addition to the fact that the surgeon’s excuses did not jibe with the opinions of Cooper Sevillano’s expert in colorectal surgery, the bigger problem facing John’s surgeon was the fact that his operative note, dictated much closer in time to the actual procedure than his deposition testimony, made absolutely no mention of either of these alleged complications.  Rather, it read like a textbook operation in the successful performance of IPAA, making absolutely no mention of a difficult rectal dissection or of any associated complications (i.e., leaving too much rectum behind).

Although Cooper Sevillano was never able to ascertain exactly why the surgeon dissected John’s rectum at such a high level compared to the standard of care, we were able to dispel the theories advanced by the defense.  Ultimately, it came down to the importance of keeping an accurate medical record.  If a surgeon wants to someday be able to rely on specific operative findings in his defense of a surgical malpractice case, he better go ahead and include those same findings in the operative note which has significant implications for the provision of additional health care and planning future operative procedures.  Otherwise, the findings amount to nothing more than after-the-fact justifications for an otherwise unjustifiable outcome.

Just prior to trial, Cooper Sevillano successfully negotiated a confidential seven figure settlement on John’s behalf.

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