Top Defense Verdict for 2002

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It’s a recipe for a rigorous case. A likeable plaintiff, is severely brain-injured, leaving his spouse emotionally and financially devastated; the incident at issue is a medical rarity; and the health care providers are honest, dedicated professionals.

That’s the scenario lawyers Barrett J. Corneille and Colleen L. Meloy faced in a 1999 initial office conference with a Madison-area surgeon (who was later dismissed from the case), anesthesiologist and nurse anesthetist. They were named as defendants in a medical malpractice case, along with a request for a session with the state’s Medical Mediation Panel, with millions of dollars and their professional reputations and livelihoods at stake.

Corneille and Meloy, of the Corneille Law Group LLC in Madison, decided the case was defensible because, simply put, “We thought we had very honest, credible clients,” Corneille says.

But they also knew early on that it would take a great deal of hard work, and that a favorable outcome was by no means guaranteed.

Although a Dane County jury, after a week-long trial last June, ultimately found defendants not causally negligent, the case isn’t over yet. An appeal was filed on Dec. 20, seeking a new trial citing juror irregularities.

Defense Argues No Liability

Boetcher v. Wisconsin Patients Compensation Fund, et al. stems from rectal surgery that Steven A. Boetcher, 47, underwent on April 29, 1997

Because Boetcher had experienced problems with general anesthesia in the past, a local anesthetic was administered to his spine while he was in the prone jackknife position. He suffered a cardiac arrest. Boetcher was resuscitated, but he was left with brain injuries.

Afterward, Harriet Boetcher, his wife, attempted to care for him at home, but eventually determined that he would be better served in assisted living. Clearly, he would never return to his former occupation as a truck driver — or to being his pre-operation self.

Plaintiffs’ theory of the case was that the defendants gave an inappropriate anesthetic, and they weren’t paying adequate attention to Boetcher’s symptoms of the cardiac arrest, which they alleged progressed slowly and visibly. They also alleged that Boetcher withdrew his informed consent when he said “I want to get up” and “I can’t breathe” during the procedure.

Defendants strongly disagreed with all of those contentions, characterizing the incident as a rare medical emergency that they had handled appropriately.

Before or contemporaneous to filing an action, all Wisconsin medical malpractice plaintiffs must file a request for mediation with the Medical Mediation Panel, and although the parties may opt out, Corneille and Meloy decided to participate. Since liability was the central issue, settlement wasn’t likely; rather, they wanted to learn more about the plaintiff’s case, in addition to hearing what the independent doctor on the Panel would say about it. They left the session feeling reasonably confident, but also certain that the case would be detailed and difficult.

Thereafter, they proceeded to pore over treatises and medical journals, and to find experts. They were encouraged when they found medical literature describing the sudden deterioration of symptoms remarkably similar to what their clients had described.

They also used that literature and went online to find two stellar witnesses. Both hail from Wisconsin, which tends to resonate well with jurors, Meloy says.

The first was Dr. Lawrence Rothstein, a Madison-area anesthesiologist. “He was local, very easy to understand, and someone who could speak at the jury’s level. We also liked him because he hadn’t testified frequently in the past,” Meloy says.

As for Dr. John Kampine, the head of the anesthesia department of the Medical College of Wisconsin in Milwaukee, he brought a “tremendous C.V.,” plus he had knowledge of other sudden cardiac arrests after the administration of anesthetic at the Medical College, as described in medical literature.

The medical records for the surgery itself were brief, but the post-operation records describing the extent of plaintiff’s brain injury were quite voluminous. All involved in the incident were deposed, as well as the experts.

The Boetchers were seeking medical specials of more than $750,000, and future medical expenses of more than $2 million, largely due to the high cost of assisted living. In addition, they sought between $350,000-$630,000 for future wage loss, for the estimated remaining 18 years of his work life. With various other damages, the Boetchers’ demands ranged from $3.7 million to more than $4 million dollars. The defendants, however, maintained they’d done nothing wrong, and accordingly offered nothing.

The Trial

Corneille, a 22-year veteran attorney, served as lead counsel, and Meloy, a six-year attorney, second-chaired the defense.

“The old person is always lead counsel,” Corneille jokes. But the two frequently work together on their office’s medical malpractice cases, because Meloy is adept with the technical medicine, while Corneille has more trial experience.

Meloy doesn’t have pre-law school work experience or education in a health-related profession. But that wouldn’t necessarily help her, she notes. “You really have to learn the medicine from scratch for almost every case, because every case is different. You do pick up on general me
dical terminology that will help you from case to case. But we’ll never have another case like this one.”

Which is probably a good thing, because an atmosphere of uncertainty prevailed at trial.

For starters, as is typical for most medical malpractice cases, the motions in limine were numerous. A key issue, Meloy says, was the admissibility of statements from the plaintiffs’ experts during their depositions that were critical of the care administered by the anesthesiologist and the C.R.N.A. The experts also conceded that those acts or omissions weren’t causal to the outcome. The defense lost the motion, and Meloy believes that this testimony was a significant factor toward the jury ultimately finding deviations from the standard of care.

Then in plaintiffs’ case-in-chief, Dr. Allen Klock of Chicago, put on a slide show and was very persuasive, Meloy recalls.

In addition, Harriet Boettcher gave very compelling testimony about the effects of her husband’s injury upon their lives, concluding that she’d gone from being his wife to his nurse.

As for Steven Boettcher, he was present for trial and didn’t testify for the jurors. But the effects of the injury upon him were evident, Corneille says.

“The biggest tragedy of the case, was he knew he’d been brain-damaged. If you talked to him, you could tell he was a really nice fellow, but after a while, you could tell that he wasn’t the way he’d been before. So it was a very sympathetic situation for both him and his wife.”

Still, the trial had its high points for the defense, too. As they’d thought in the initial conference, the defendants’ testimony, particularly that of the anesthesiologist, was credible and compelling, and their experts did well on the stand, too.

The jury found no causation.

Post-trial

“It was a hard-fought and well fought case,” says plaintiffs’ lead counsel, Michael Luebke of Gingras, Cates & Luebke in Madison.

“We felt, and feel, very strongly that the medical aspects of our case were correct, and we had competent and well-credentialed experts on our side,” he continues. In addition, he notes that a print-out from the anesthesia monitor, which would have been solid, objective support for plaintiffs’ claims, was inexplicably missing.

The defense counters that no print-out was made following the code, and that had one been made, it would’ve supported its case.

Luebke says the Boetchers are now arguing on appeal that the jury’s foreman improperly used information outside of the trial to persuade 10 of the other jurors who otherwise had been willing to vote for the plaintiff.

Although the defense has won the case — for now — there are no winners.

“Anyone who saw this situation would say it was a tragedy,” Corneille observes, “And going through a medical negligence trial is probably the most significant event that can happen in a physician’s life. It certainly changes him forever, win, lose or draw.”