Maine: Small firm wins $6.7M for family of trauma patient; Jury award is said to be largest med-mal verdict in state history

By Sylvia Hsieh The Daily Record Newswire BOSTON, MA -- A small firm lawyer has won a $6.7 million verdict on behalf of the wife and two children of a man who went to the emergency room with broken ribs, but died two days later of a heart attack. John P. Flynn III, the winning attorney, alleged that the admitting doctor and hospital failed to follow up on fluid in the man's chest despite dictation notes taken by the admitting doctor ordering blood panels and X-rays the next morning. The six-day trial fought out mostly by expert witnesses on both sides also featured "heart wrenching" testimony from the man's widow and two minor children, who watched as Thomas Braley died on his birthday and Mother's Day in 2005, Flynn said. "On his 44th birthday, with his wife and children gathered around him, he announces he can't breathe and is in severe pain and ultimately goes into cardiac arrest and dies. Our position was that his death would have been avoided had he had a chest tube put in place or [been] monitored for loss of blood," said Flynn, who practices with the four-lawyer firm Daniel G. Lilley Law Offices in Portland, Maine. The jury in the rural area of Maine apparently delivered the largest med-mal verdict in state history, but the largest portion of their award -- $4.5 million for the family's loss of consortium and pain and suffering -- will be reduced under a state tort reform measure that caps those damages at $400,000, Flynn said. The jury's 8-1 verdict also awarded $1.2 million to the family for lost economic support, $1 million for Braley's conscious pain and suffering, and $11,000 in funeral expenses. Two days before his birthday, Braley was celebrating on a Friday evening by cruising with co-workers in an all-terrain vehicle through a rural area of Maine. When it flipped over backwards and landed on top of him, he was airlifted to the Eastern Maine Medical Center. "It was an accident in the purest sense," said Flynn. At the trauma center, doctors took CT scans and found Braley had broken several ribs. The radiologist also noted a possible collapsed lung and reported a "hemothorax," or blood in the chest cavity on his right side. One option the doctor could have pursued, Flynn argued, was to insert a tube to drain the fluid, but since he chose not to do an intubation, he needed to keep an eye on the fluid. "Our whole position at trial was this was something that needed to be followed, because the problem with fluid in this space is that it's not necessarily going to kill an individual, but if it continues to grow it might be a sign of internal bleeding," said Flynn. The CT scans showed several ounces of fluid, but an autopsy indicated that the amount of fluid had increased to about 2 liters. The admitting physician, Dr. Lawrence Nelson, dictated in his notes that the treatment plan should include blood panels and X-rays in the morning to determine whether Braley was losing blood. But in his handwritten notes for the treatment team, he forgot to write that follow-up X-rays were needed. In addition to the notes, Flynn argued there were other signs that Braley had internal bleeding. For example, when nurses turned him on his right side, he complained that he couldn't breathe. According to Flynn, the defense argued that Braley's death was caused by a ruptured blood vessel from his displaced broken ribs, indicating a sudden death that was not preventable. But Flynn said the argument hurt the defense because the autopsy didn't indicate any rupture of other blood vessels. Although according to Flynn the defense also asserted that the reason for not draining the fluid in Braley's chest was that it would cause more pain on top of his broken ribs, Flynn countered that one of the experts testified that he puts a patient under anesthesia during such a procedure. "The second [argument] that is patently obvious is that most patients would say 'I'll endure five to ten minutes of additional pain' - he was already on morphine for his broken ribs - 'rather than put my life at risk because of fluid accumulating and not draining,'" said Flynn. The lawyer for the doctor, Philip M. Coffin III, and the lawyer for the hospital, Edward Gould, did not return calls seeking comment for this article. In his closing, Flynn tried to break down the case into "simple logic" for the jury. "There's always some concern the jury may throw up its hands and go with the larger number of doctors who said there was no negligence," said Flynn, referring to the three defense experts plus the three treating doctors who testified for the defense, compared with only two plaintiffs' medical experts. Flynn summarized the theory of his case in closing arguments by placing some items in front of the jury. First he placed three teaspoons in front of the jury, and told them that represented a normal amount of fluid in the chest cavity. Next, he put out a 12 oz. can of soda and said "clearly this is not normal, but it may not be enough to kill you." Then he pulled out a 2-liter soda bottle, and said, "But this is." Braley's neighbors and co-workers testified before the small-town rural jury that they remembered a hard-working glazier for a glass company who checked in on his in-laws every Friday, helped out a neighbor who was going through a divorce by building her a porch and a barn for her horse, and befriended an exchange student from southeast Asia, subbing as her surrogate dad on prom night. Braley's widow and two children also relived seeing him die on his birthday. "We all lose people very close to us and one thing we do is we have a tendency to remember them on their birthday. Unfortunately for this family, they will remember their dad's last birthday in this hospital and what they saw," Flynn told the jury in closing arguments. Published: Tue, Jul 5, 2011