LITTLE ROCK — An $11 million jury award to the family of a boy who received surgery on the wrong side of his brain should be struck down because jurors were not told they could assign part of the blame to the doctors who performed the operation, an attorney for the hospital’s insurance carrier argued Thursday.
Attorneys for the family argued that the award should be restored to $20 million, the amount of the original award before it was reduced on appeal.
The state Supreme Court heard oral arguments but did not immediately issue a ruling in the case, which began as a negligence lawsuit filed by Kenny and Pam Metheny of Mabelvale over an operation performed on their son, Cody, at Arkansas Children’s Hospital in July 2004.
Cody Metheny was 15 when doctors operated on him in an attempt to cure a seizure disorder. They initially operated on the wrong side of the brain before realizing their mistake and performing the correct procedure.
David Ellington, attorney for Proassurance Indemnity, the hospital’s insurance carrier, argued Thursday that the case should be sent back to circuit court for new proceedings because the trial judge did not instruct jurors to determine what percentage of the fault was the hospital’s and what percentage was the doctors’.
"At no time was the jury instructed to make that breakdown," Ellington said.
The lead surgeon for the procedure was Dr. Badih Adada, a neurosurgeon who no longer practices at Arkansas Children’s Hospital. Adada settled out of court with the Methenys and was never part of the lawsuit.
Grant Davis, attorney for the Methenys, said it was appropriate that the doctors were not part of the jury’s deliberations because they were not parties in the suit. Allowing defendants to try to assign blame to non-parties would set a dangerous precedent, he said.
"That would give the incentive to defendants to bring in anyone. … That would bring chaos to everything," he said.
The original $20 million award to the Methenys was reduced to $11 million because that was the maximum amount for which Proassurance was liable under the hospital’s policy at the time the operation was performed. The Methenys have filed a cross-appeal arguing that the original amount should be restored.
The Methenys claim that two acts of negligence occurred: The mistake during surgery and a 15-month lag between when the operation was performed and when they learned of the mistake. They claim that the hospital should be held liable for both acts and that they occurred during two different periods of coverage, so the $11 million cap does not apply.
Kenny Metheny said after the hearing that his son is still in a brain rehabilitation center.
"I’ll never have my Cody that I had before the surgery. Basically they took my son away from me," he said before becoming too emotional to speak.
After the hearing the court went into recess until January.