Appeals Court upholds $2.5M gross negligence verdict.

Byline: Pat Murphy

Plaintiffs' attorneys see a recent Appeals Court decision as kicking open the door to the recovery of punitive damages for gross negligence in medical malpractice cases.

On Feb. 26, the court upheld a $2.5 million award of punitive damages to John E. Parsons, whose wife, Laura, allegedly died as a result of complications that developed when a surgical tack used to repair a hiatal hernia punctured her pericardium, the membrane surrounding the heart.

The defendant, Dr. Darius Ameri, argued that there was insufficient evidence of gross negligence for the issue to be put before the jury.

But a unanimous Appeals Court panel disagreed, pointing to evidence that the surgeon ignored a medical device manufacturer's warning that so-called "tackers" not be used to apply fasteners in close proximity to the heart.

"The jury could reasonably conclude that Ameri's decision to use the tacker in close proximity to Parsons's pericardium exhibited the hallmarks of gross negligence: he voluntarily incurred an obvious risk, in circumstances where the failure to exercise reasonable care could be fatal," Judge Gregory R. Massing wrote for the panel.

Adam R. Satin, who represented the plaintiff, views the decision as a landmark ruling. Massachusetts law has long recognized that punitive damages are recoverable for gross negligence that results in death. But this was the first time that an appellate court upheld a jury's finding of gross negligence against a doctor, the Boston lawyer said.

"The big takeaway from this case is that doctors do not get some special treatment in the eyes of the law just because they're doctors," Satin said.

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"The big takeaway from this case is that doctors do not get some special treatment in the eyes of the law just because they're doctors."

Adam R. Satin, Boston

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Boston medical malpractice attorney Jeffrey N. Catalano drew another lesson from the case.

"The decision finally clarifies that for plaintiffs to demonstrate that doctors are grossly negligent, they don't have to demonstrate that the doctor's course of action was malicious or with evil intent, which is how defendants have typically argued to the court to exclude gross negligence claims," Catalano said.

[box type="shadow" align="alignright" width="325px"]Parsons v. Ameri, et al, Lawyers Weekly No. 11-019-20 (25 pages)

THE ISSUE: Did evidence that a surgeon ignored a medical device manufacturer's warning that "tackers" not be used in close...