During the noon hour Monday, a high-stakes legal game played out in a Muscogee County courtroom as lawyers for St. Francis Hospital worked to lessen the significant damage of a record medical malpractice verdict that had just been delivered.
A State Court jury had awarded a Columbus woman $26 million for injuries she suffered after complications from a 2012 neck surgery at the Columbus hospital. It is believed to be the largest verdict awarded in Muscogee County history.
Lloyd Bell, an Atlanta trial lawyer who started his career as an Army attorney and spent some time at Fort Benning, was about to pull the trigger on a 12-year-old state statute that allowed for plaintiffs to seek legal fees if the defense had acted in bad faith.
Bell’s contention was that St. Francis and its employee physician, Erick Westerlund, had acted in bad faith.
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He was going to ask the same jury that had minutes earlier given Sandra Williams, a legal secretary who had suffered life-altering injuries, $26 million to award an additional $10 million in legal fees.
Roger Sumrall, the Atlanta attorney representing St. Francis and its insurance carriers, went in and out of the courtroom using a cell phone as Judge Ben Richardson sent the jury to lunch, giving the attorneys an hour to negotiate before the legal fees phase was to begin.
Atlanta attorney Paul E. Weathington, who has 35 years of medical malpractice defense experience, had just won a victory for his client, Columbus pulmonologist Dr. Christopher Tidwell. Tidwell, who was making rounds at St. Francis on Oct. 20, 2012, when he was called to Williams’ bedside, was the only doctor left in the case after Westerlund settled before the trial and other doctors had been dismissed by the judges.
The jury found that 100 percent of the responsibility for Williams’ injuries rested with Westerlund, who had admitted Williams to the intensive care unit over the phone then failed to see her within two hours of admittance, per hospital policy,
Weathington called the hour-long negotiation “a chess match.”
“The defense and their insurance carriers had to weigh the risk of a phase that could have resulted in adding $10 million more to the equation,” Weathington said on Tuesday. “The plaintiffs had to consider that they could not get any more money because the jury may have factored legal fees into the original verdict.”
At the time of Williams’ injuries, St. Francis was insured by Zurich Insurance Group, a Swiss company, for damages up to $10 million, Bell said. The policy included what is essentially a $1.5-million deductible, Bell said.
The hospital had a secondary carrier, Ironshore Insurance, a Liberty Mutual company with offices throughout the United States, for an additional $20 million in damages, Bell said.
“This claim was within the insurance coverage of the hospital,” Bell said.
The issue was what would have happened if the legal fees had been tacked on to the verdict.
If there had not been a settlement and the jury had awarded Williams the additional $10 million in attorneys fees, the claim would have exceeded the hospital’s insurance coverage.
“At that point, they would have had to go into their operating budget or some type of capital arrangement,” Bell said.
Weathington, pleased with the jury’s decision to completely exonerate Tidwell, sat near the back of the courtroom and watched it play out.
“Based on my experience and the nature of what was happening, the two insurance carriers were concerned a lot more money could be added on, so they cut their losses,” Weathington said.
As the deadline for the jury to come back from lunch came, Sumrall went over and spoke briefly to Bell. The two men then told Richardson they had reached an agreement.
The conclusion was that St. Francis and its insurance carriers would not appeal the verdict and would pay Williams $25 million within 30 days. This amount was less the $1 million that had been previously paid by the insurance company for Westerlund, the judge was told.
On Tuesday, none of the attorneys involved would discuss the Westerlund settlement, citing a confidentiality agreement.
Williams had neck surgery at St. Francis Hospital in October 2012. The surgery was performed by Dr. Thomas R. Walsh. Three days later, she went to the St. Francis Emergency Room complaining of an inability to breathe and swallow, as well as pain in her neck.
Westerlund was on call and admitted her to the hospital from the E.R. at 5:30 a.m. on Oct. 20. He did not see her until about noon, according to testimony in the two-week trial, which was a violation of a hospital policy requiring the admitting physician to see the patient within two hours.
The injuries by Williams included blindness, brain damage and confinement to a wheelchair. She sat through the entire trial next to her attorney.
St. Francis spokesperson Kendra Wright said Tuesday afternoon in an email: “Given this situation, we’re directing all media inquiries to our legal counsel.”
Reached at his Atlanta office, Sumrall declined to answer questions about the case or the hospital, but did say, “All I can say to you is this, while we are disappointed with the jury’s decision, we respect the process and wish Mrs. Williams the best.”
In October 2012, St. Francis was a locally controlled non-profit hospital. Due to financial mismanagement — the hospital had what it termed nearly a $30 million accounting error in 2014 — it faced bankruptcy and was sold to LifePoint Health of Brentwood, Tenn., on Dec. 31, 2015.
Though most of the verdict is covered by insurance, Bell said there could still be financial consequences for the hospital.
“There could be a trickle-down effect on the insurance rates for their policies,” Bell said. “Hopefully, they will use this to make changes to their system and what happened to Sandy doesn’t happen to anyone else.”
The hammer that is a large jury verdict can serve as the impetus for systemic change, Bell said.
“Nothing I have found causes change more than harsh financial consequences,” Bell said. “Why do you think that police give out speeding tickets with large fines attached? Sometimes, there needs to be a financial incentive to change.”