"It really put me in a situation tactically that i didn't necessarily think i would be in in the moment," said plaintiff's counsel Darren Penn. "If you're in an Alston & Bird v. Hatcher situation, think about how that might play out before you get [to trial.]"

What You Need to Know

• The case had multiple defendants at the time it was filed but, after pending for a decade, only one remained at trial.
• As a result, the parties were divided over whether the jury should be allowed to apportion fault at trial.
• Ultimately, a midtrial decision on the matter called for a last-minute change in tactics for the plaintiffs to ultimately prove their case.

 

Darren Penn, William Ballard and Hannah Sbaity of the Penn Law Group recently secured a $17.3 million-medical malpractice verdict in the State Court of DeKalb County. Penn said the decadelong case was the oldest in his docket, resulting in a variety of unique challenges concerning the apportionment of fault and how different parties fit in, as all but one defendant settled, the remaining one retired and some experts died.

“It was hard-fought on both sides,” said defense counsel Heather Miller of McGrew Miller Bomar & Bagley, who tried the case with co-counsel Wayne McGrew. Miller indicated that they “are currently exploring all post-trial motions.

“[The defense] put up one heck of a fight,” Penn, who was lead counsel for the plaintiffs, said. “They did a magnificent job putting up their case and making their point.”

According to the plaintiff’s account in the pretrial order, Emmanuel Orgu, the surviving husband of Maria Orgu, sued his wife’s obstetrician, Shiraz Kassam, for failing to detect and properly treat a cervical ectopic pregnancy. As a result, the plaintiffs argued that Maria Orgu spent weeks in the hospital, underwent two emergency surgeries, developed kidney failure, sepsis and shock and was eventually placed on a ventilator until she died of a heart attack.

Penn said Kassam had essentially a no-offer case, and in the end the doctor was put on trial for failure to recognize and treat the ectopic pregnancy, failure to properly hand off Maria Orgu to another doctor for an emergency cesarean section, failure to perform a full hysterectomy and for delaying further surgical intervention “which led to additional massive bleeding that ultimately caused Mrs. Orgu’s untimely death.”

According to the defense’s account in the pretrial order, “Kassam denies he was negligent in his care and treatment of Mrs. Orgu. Further, he denies that any act or omission caused Ms. Orgu’s death or [her] claimed damages. Dr. Kassam also states that any injury or damage caused to [the] plaintiff resulted from actions or inactions of others, including on or both of the settling defendants.”

To this point, the issue of apportionment loomed large at trial. The plaintiff’s account in the pre-trial order stated that, because the case was going to trial against only one defendant, the jury’s apportionment would not affect the court’s judgment and Kassam would be liable for the entire amount of the verdict. However, the question of whether the jury would even be able to apportion wasn’t decided until the trial was already underway.

This put Penn in a difficult situation. In opening statements, he said he told the jury that the plaintiffs agreed that another specialist was likely more culpable than Kassam and that they were going to have the opportunity to decide that when rending the verdict. However, the defense won the issue, and there wouldn’t be a charge on apportionment.

As a result, Penn said he had to change tactics during closing “as quickly as he could without dwelling too much on it,” because the jury no longer had a way to deal with another party being at fault.

“I tried to be as straightforward and upfront as you can possibly be with the jury. I believe if you’ve got really bad facts you own up to them and attack them head-on,” Penn said. “I simply turned it around and argued: I said what I said in opening, but this case is no longer about that doctor, it’s not about that doctor’s practice, this is solely about Dr. Kassam and you have one question—did he contribute to this injury and this death, and if he did, what are the damages?”

Penn said he incorporated a similarly direct approach throughout the rest of the trial to be “as efficient and streamlined as possible” so that the jury knew they were respectful of their time. To this end, Penn said he tried to focus as much as possible on nothing but Kassam, to the point that he called the defendant doctor up as his first witness.”

Penn noted that, while it’s common to lead with the defendant in product liability and trucking cases to establish the defendant company’s policies, set the stage and anger the jury, this is risker in medical-malpractice cases because, if the cross-examination goes wrong, the plaintiffs have dug themselves into a hole at the beginning of trial.

This, however, paired with the witness testimony of an ICU nurse factored heavily into how eventually presented pain and suffering damages to the jury. There, Penn said, the plaintiffs presented a timeline of every instance Maria Orgu experienced pain and suffering during the course of her treatment—184 points in all.

“I made a point that that’s just what’s documented,” Penn added. For other damages, he said he gave the jury some suggestions for how they might calculate life expectancy and damages, leaving much of it in the hands of the jury, in part due to time constraints. He said that, if he’d had more time, he probably would have given the jury more examples of ways they could calculate their award.

The jury deliberated for 11 hours over two days before rendering their verdict, according to Penn.

The case is Orgu v. Kassam, No. 15A55784E3, in the State Court of DeKalb County.