Chief Justice Brent Benjamin
CHARLESTON, W.Va. (Legal Newsline) - West Virginia Supreme Court justices has agreed to review a $4 million verdict in a Wetzel County medical malpractice case.
Earlier this month, the court voted 4-1 - Justice Robin Jean Davis dissenting - to allow argument in Dr. Anandhi Murthy's appeal of the 2008 verdict and subsequent judgment ordered entered by Wetzel Circuit Judge Mark Karl.
Murthy claims Karl made various errors, including declining to reduce the $4 million verdict to $1 million, as Murthy claims is required under state law when economic damages are not at issue.
But the family of Elizabeth Karpacs, who died on June 2, 2001, claim Murthy - a former general surgeon at Wetzel County Hospital - was lax in her treatment of their mother and kept them in the dark about the direness of their mother's ischemic bowel condition.
The Karpacs verdict was the second multi-million verdict handed down related to Murthy's practice. In 2007, a Wetzel County jury awarded a plaintiff $5.7 million because Murthy performed experimental treatment on the plaintiff for acid reflux. The plaintiff had to have her stomach and esophagus removed because of the surgery.
In her appeal, Murthy claims that Karpacs, 76, was already in bad health when she was admitted to the hospital on June 1, 2001, complaining of diarrhea and vomiting. Karpacs had spent about three weeks in the hospital the month before for treatment of pneumonia and chronic obstructive pulmonary disease.
During that stay, Karpacs was administered antibiotics that had the potential to cause infection of the colon.
Though the family basically says Murthy diagnosed their mother with a life threatening condition, then left her to die, Murthy claims she physically examined Karpacs three times and conferred by telephone with hospital personnel three times on June 1.
Murthy said she determined that Karpacs would never survive exploratory surgery to determine what was causing her condition. So, Murthy ordered that antibiotics and fluids be continued to try to better prepare Karpacs for surgery.
An expert for the family testified at the trial that Murthy should have been more aggressive in prescribing the fluids and that standard of care required the surgery.
But Murthy says the family conferred with Karpacs' primary care doctor at around midnight on the day of her death and determined to stop treatment. The primary care doctor then relayed a "do not resuscitate" order to hospital personnel, who then kept Karpacs sedated until the time of her death, Murthy's appeal says.
Karl had granted a motion by the family to not permit Murthy from mentioning the "do not resuscitate" order as playing a part in hastening Karpacs' death or enhancing the severity of her condition.
Murthy claims that she did not seek to bring up this argument, but that the court was too broad in precluding any mention of the order at trial. Murthy said she should have been allowed to bring up the order when the family argued that they would have done anything necessary to keep Karpacs alive - even if it meant dangerous surgery and transferring her to another hospital -- and that Murthy had abandoned her patient as she lay dying.
Murthy said the order would have allowed her to rebut this testimony. She moved unsuccessfully for a new trial based on this argument, her appeal states.
The amount of the verdict is challenged because Murthy said there was no evidence that Karpacs suffered during her decline nor that her three children - who each got $1 million - had suffered economic losses.
Murthy said the verdict should be reduced to $1 million to conform with state law's cap on these kinds of damages.
But Karl ordered that since the verdict form did not differentiate between economic and non-economic losses that the full $4 million verdict would be allowed to stand.
Murthy also challenges the court's awarding the family $1.9 million in prejudgment interest because Andrea Karpacs-Brown, the daughter who was the named plaintiff, did not prove any out-of-pocket expenses on the case.
The court also awarded Karpacs-Brown an unspecified amount of lawyer fees, which Murthy contests.
The family points out that lawyer fees and other legal costs are appropriate because Murthy failed to participate in good faith in court-ordered mediation before trial. The family claims that a representative of Murthy's insurance carrier - Woodbrook Casualty Insurance - attended one session of mediation, "grudgingly and slowly" made an offer of $150,000, then slammed her briefcase shut and walked out.
"This occurred despite the willingness and desire of everyone else ... to proceed with negotiations," says the family's response to Murthy's petition for appeal.
The family also claims that Murthy made it known that she wanted to settle, regardless of the insurance's stance, but that the defense then refused to negotiate further.