Jury Finds Both Doctors Negligent in Death Case

Jane Doe worked as a data processor in a Jacksonville skyscraper, but she lived in the backwoods of Glen St. Mary with her farmer/househusband and two young children. Jane was a cancer survivor. Radiation had eradicated all traces of her cervical cancer, but left her with damaged intestines which required repeated surgery to unblock them.

After the third operation in December 1994, the treating surgeon thought he had cured Jane's intestinal problems, but on Sunday afternoon, February 5, 1995, Jane had to be rushed to the emergency room. The surgeon who was on-call for the treating surgeon admitted Jane to the hospital, but deferred any surgical procedure.

When the treating surgeon came in on Monday morning, he examined Jane and saw an x-ray that showed "free air" or gas in her abdomen outside the walls of the intestine. Since this was an indication of serious abdominal infection, the treating surgeon operated immediately. When he opened up Jane, the treating surgeon found a piece of infected cut-out bowel which had been left behind in the December surgery. By the time he removed it, the intestinal infection had spread to other organs. Jane never recovered.

Pajcic & Pajcic first sued the treating surgeon for leaving the bowel remnant in Jane. After suit was filed it was discovered that, contrary to indications in the medical records and testimony, the x-ray showing free air had actually been taken Sunday afternoon. Pajcic & Pajcic then added the on-call surgeon as a defendant for failing to operate on a timely basis.

The treating surgeon's defense was that leaving the remnant behind was not negligent because of the complexity of the surgery and that the remnant was not the source of the infection. The on-call surgeon's defense was that the free air was hard to see, surgery was always problematic, and Jane was a very sick person in any event.

The size of the remnant became a major issue in the case as the treating surgeon attempted to minimize it. The critical evidence on this point came from the pathology report which measured the remnant to be 4″ which, after expected shrinkage, supported the 6″ claimed by Pajcic & Pajcic rather than the 2″ claimed by the treating surgeon.

Pajcic & Pajcic argued that both the treating surgeon and the on-call surgeon had Jane's fate in their hands - the treating surgeon when he held the cut-out bowel remnant, and the on-call surgeon when he looked at the x-ray. If either doctor had only looked carefully enough at what he had in his hands, either one could have saved Jane. Pajcic & Pajcic relied on contradictions between the two doctors' testimonies to rebut their defenses. Pajcic & Pajcic led off the trial with the treating surgeon's video deposition and called the on-call surgeon as their next witness.

The jury agreed with Pajcic & Pajcic and found each doctor 50% at fault. Although the verdict of $658,000 was less than Pajcic & Pajcic asked for, it was more than the pretrial offers of the defendants. Pajcic & Pajcic settled on a confidential basis with one of the defendants while the jury was out and with the second defendant while its motions for costs and additur were pending. The recovery has made it possible for Jane's husband John and her two children to stay on the farm and has given John the freedom to continue to be the farmer and father he was before.