Maryland Medical Law Report Legal news for the medical community
A Montgomery County jury has awarded $1 million in damages to a Potomac man who lost vision in one eye after surgery to repair a detached retina.
Gustavo Crosetto and his wife were each awarded $500,000 in non-economic damages from The Retina Group of Washington LLC last month following a five-day trial, according to the couple’s lawyer, William F. Askinazi.
But RGW successfully had the award reduced to a total of $740,000 under Maryland’s statutory cap on non-economic damages, and last week appealed the verdict on technical grounds.
Crosetto visited RGW in December 2014 with preexisting conditions that made him vulnerable to increased ocular pressure but was not prescribed any eye pressure medication, according to the complaint. He was diagnosed with retinal detachment on the left eye and had surgery Dec. 4.
During the surgery, Crosetto claimed the doctor caused the pressure in his left eye to be raised over the next 24 hours, leading to permanent vision loss in that eye, according to the complaint. The surgeon failed to properly monitor Crosetto’s eye pressure after the surgery and it was not measured until the next day.
The plaintiffs and their family members were emotional witnesses as they talked about how Crosetto’s life has changed since the surgery, according to Askinazi, a Potomac solo practitioner.
“He’s doing alright but he’s had a lot of trouble,” he said. “He’s fallen down steps. He’s almost run over somebody. He can’t drive at night. He can’t do his hobbies.”
The jury deliberated for approximately nine hours before returning with the verdict, according to Askinazi, and found the surgeon’s employer liable for breaching the pre- and post-operative monitoring standards for a patient with elevated eye pressure.
“I thought very highly of the jury,” he said. “They were very attentive and I think very well-reasoned.”
Litigation costs
The defense argued in pre- and post-trial motions that Crosetto filed a certificate of merit from an expert which named RGW but not specific agents, who were ultimately determined by the jury to be accountable, and noted an appeal to the Court of Special Appeals on those grounds last week.
Timothy Fisher, of Wharton Levin Ehrmantraut & Klein in Annapolis, a lawyer for RGW, declined to comment on the case Monday because the appeal is pending.
Askinazi said retired Montgomery County Circuit Judge Durke G. Thompson denied a motion for judgment notwithstanding the verdict on the issue and found naming the employer without naming specific employees other than the surgeon complied with the act.
“Basically, (the defense is) raising a technicality and it’s our argument that this healthcare act was never intended to destroy otherwise valid malpractice claims, which this was,” he said. “It was only intended to weed out the frivolous ones.”
Even if the intermediate appellate court agrees with the defendants, Askinazi added, the remedy is a dismissal without prejudice, allowing the Crosettos to refile their case.
Askinazi also filed a cross-appeal Monday on the issue of a motion for costs he filed pursuant to a statute that applies in cases where an offer of judgment from the plaintiff in a medical malpractice lawsuit was rejected but the jury verdict exceeds the offer.
The statute allows the plaintiff to seek the costs of the litigation incurred after making the offer, which Askinazi estimated as $30,000 in the Crosettos’ case.
Thompson pointed to another statute that limits costs to filing fees with the court, Askinazi said, and found the statutes conflicted. The judge ultimately awarded costs of $161.
“I think (the issue is) ripe and I want the court to make a ruling on whether the offer of judgment statute means anything,” Askinazi said.
Gustavo Crosetto et al. v. Reginald J. Sanders et al.
Court: Montgomery County Circuit Court
Case No.: 409869-V
Judge: Durke G. Thompson
Proceeding: Jury trial
Outcome: Verdict in favor of plaintiffs; $500,000 in non-economic damages each to Gustavo Crosetto and Christina Crosetto, reduced to $740,000 under Maryland’s statutory cap on non-economic damages.
Dates:
Incident: December 2014
Suit filed: Sept. 28, 2015
Verdict: Dec. 3, 2016
Plaintiff’s Attorney: William F. Askanazi of Askinazi Law & Business LLC in Potomac.
Defendants’ Attorneys: Daniel Costello and Timothy Fisher of Warton, Levin, Ehrmantraut & Klein P.A. in Annapolis.
Claims: Medical malpractice, loss of consortium
