• Read the Nebraska Supreme Court decision.
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LINCOLN — Omaha Steaks executive Bruce Simon nearly died in 2008 when a pain injection for an arthritic hip led to a staph infection.
But a Douglas County jury ruled against him after he sued the specialist who gave him the injection.
On Friday, the Nebraska Supreme Court overturned the verdict and resurrected his malpractice claim against Dr. Mary Kay Drake, a radiologist at the Nebraska Medical Center.
Simon welcomed a second opportunity to show that infections in hospital settings should be “totally preventable.”
“The fact that some institutions fall short in their efforts puts all of us at risk,” he said. “It certainly put me at risk. It nearly killed me twice.”
Omaha attorney Joseph Daly, who represents Drake, said he was disappointed with Friday's opinion. He will now focus in trying the case a second time.
“The jury found in our favor that there was no negligence,” he said. “It's our position that Dr. Drake did not do anything that was negligent.''
Simon, 57, is the president of an 1,800-employee company that markets and ships beef and other food products internationally. His medical ordeal began in 2007 when he sought treatment for an arthritic hip.
Dr. Kevin Garvin, an orthopedic surgeon, ordered pain injections as a short-term treatment. Using an X-ray allows doctors to see the needle being inserted and ensure the medication gets into the hip joint. The procedure is done by a radiologist.
The first injection Simon received at the Nebraska Medical Center in 2007 went without complication, and it relieved the pain for nearly a year.
But the procedure didn't go smoothly during a follow-up in May 2008. A first-year radiology resident balked at using a 2½-inch needle, which is sometimes called a “pediatric needle” when used for hip injections. During Simon's previous treatment, a specialist had used a 3½-inch needle.
Nonetheless, Drake, director of the radiology residency program, instructed the resident physician to use the shorter needle. The resident stuck the needle in Simon twice but couldn't reach the hip joint.
A technician got a different needle that was at least 7 inches long. Although Simon wanted to come back another day, Drake insisted she could do it. On her second try, she injected the medication into Simon's hip.
It took 25 minutes from the time the injection site was sterilized until the procedure was done.
Days later, he was taken by ambulance to the hospital, where he was diagnosed with a life-threatening infection in his hip. He remained hospitalized for five days while undergoing treatment, which included a debridement procedure to remove dead cartilage, tissue and bone from his hip.
But the treatment failed to remove all of the infection, and he had to return to the hospital. He underwent three months of treatment to control the infection so hip replacement surgery could be done. Simon then spent a year in rehabilitation.
He sued Drake for malpractice, arguing that she subjected him to a greater risk of infection by initially using a needle that was too small, sticking him multiple times and failing to maintain a sterile environment.
In response, Drake said that she had followed the standard of care for the injection procedure and that Simon had signed a consent form, acknowledging risks that included infection.
The two sides identified their medical experts as the case led up to trial. Neither side intended to call as an expert Garvin, the orthopedic surgeon who treated Simon before and after the infection.
Douglas County District Judge Gary Randall ruled before trial that Garvin could not testify as an expert on the proper standard of care for the procedure. But under questioning by Drake's attorney, that's just what he did.
Garvin said a 2½-inch needle fell within the acceptable size range for hip injections. He also said he knew of no research that correlated multiple needle penetrations with higher rates of infection.
Simon's attorney objected. The judge agreed Garvin was unqualified to give the testimony, but he ruled it “harmless error” and did not instruct jurors to disregard the surgeon's testimony.
Simon's three medical experts testified that several mistakes that day led to the infection, including the use of a needle that was too small.
Drake countered with one medical expert, who testified a 3½-inch needle is considered standard, but the 2½-inch needle could be used depending on the size of the patient. On cross-examination, Drake's expert said he would not have used the shorter needle on Simon.
Even so, the jury returned a unanimous verdict for Drake.
Simon appealed on the basis that the jury was prejudiced by Garvin's testimony, which should not have been allowed.
The Nebraska Court of Appeals upheld the jury verdict, saying any error was harmless because Simon could not prove prejudice.
But the Nebraska Supreme Court disagreed with both the trial judge and the appeals court.
It said Garvin was not qualified to offer expert testimony. And the Supreme Court also said Garvin's statements could have been even more damaging to Simon's case since, as Simon's treating physician, Garvin was “cloaked in an aura of trust and respect.”
“Compared with the testimony of a hired expert, a juror was likely to give great weight to Garvin's opinion because he was Simon's treating physician and testifying as an expert against his own patient,” Judge William Connolly wrote in the opinion.
The high court ordered a new trial for Simon.
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