Medical Malpractice Suit Ends in Mistrial

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By CHAUNCEY ROSS, Gazette Staff Writer April 28, 2005

A jury in the Indiana County Court reached a deadlock Wednesday morning in its deliberation of a medical-malpractice lawsuit filed by a former college rugby player against an orthopaedic surgeon.
Through her attorney, Kelly Horell of Saltsburg RR3 asked for a multimillion-dollar award in compensation for the loss of her right leg, which was amputated below the knee due to complications following surgery four years ago to repair her fractured ankle.

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Horell's lawsuit charged that Dr. Douglas Fugate, in his follow-up care, failed to properly diagnose arterial blockages that cut the flow of blood to her injured ankle. The suit named as defendants Fugate; his employer, the Center for Orthopaedics & Sports Medicine in Indiana; and Indiana Hospital, now the Indiana Regional Medical Center, where Fugate operated on Horell on Feb. 16, 2001.

The surgery was performed one day after Horell, a member of the women's rugby club at Indiana University of Pennsylvania, was injured during practice.

Defense attorneys told the jury that the tissue damage in Horell's foot was beyond repair when the symptoms developed five days after the surgery.

The jurors were seated April 18, heard four days of testimony, then listened to the attorneys' closing statements and began deliberating at noon Tuesday.

By 4 p.m., a hint of a hung jury came in a note from the forewoman asking Judge Gregory Olson what would happen if the jury failed to reach a decision and whether the panel had a time limit.

The jurors followed Olson's instruction to return Wednesday morning and at 10:52 a.m., after more than six hours of debating the case, told Olson that no further deliberation would help them reach a verdict.

"Do you believe the jury is hopelessly deadlocked?" Olson asked.

"That's my opinion," the forewoman said.

Sources familiar with the courts could recall no civil-lawsuit trials ending with a hung jury in recent history in Indiana County. Other cases have resulted in mistrials, but because of procedural errors, sources said.

After the jurors were ushered to Olson's chambers, Horell, 24, walked to the table where Fugate was seated, clasped his hand and sobbed as she spoke to him.

Neither Horell nor Fugate commented afterward about their conversation or the jury's indecision.

"As I said in my closing statement, I think the jury has the hardest job in a trial," said attorney Robert Pfaff of Pittsburgh. Pfaff defended the Indiana hospital and its parent company, Indiana Healthcare Corp. "Maybe now they believe me."

Pittsburgh attorney Giles Gaca, who represented Fugate and COSM, declined to comment.

Horell's attorney, Anthony Carino of Pittsburgh, said the hung jury was the first in any case he has tried in 22 years as a lawyer.

Carino said no out-of-court settlement offers had been discussed before or during the trial.

"That may be a possibility" before the suit comes to court again, he said.

After spending 43 minutes privately meeting with Olson, the jurors returned to the courtroom and told Carino and Pfaff that they "did a wonderful job presenting the case."

"We try to learn from this," Pfaff said. "What impressed you about Kelly's case?"

The jurors didn't answer.

"How was the jury split?" Carino asked.

In the rare face-to-face, post-trial meeting of a jury and attorneys, the jurors wouldn't divulge a tally but said none changed their opinions while they mulled the evidence.

"Both sides had excellent, excellent evidence," a man on the jury said.

"It was an intriguing case," another offered.

A juror who spoke later on the condition of anonymity said the panel argued - sometimes loudly - over whether Fugate was negligent in his care and whether Horell's complications were the result of Fugate's treatment. The panel never considered whether the hospital was liable, and did not discuss putting a value on Horell's losses.

The juror did not say which way the panel was split.

Carino filed the lawsuit for Horell on June 24, 2002, about 15 months after her foot was amputated.On Tuesday, Carino told the jury in his closing statement that in addition to overlooking symptoms of the blocked arteries, Fugate didn't promptly send Horell to a vascular specialist.

Testimony in the trial showed, according to Carino, that Fugate noticed three of Horell's toes had turned black, found her foot cool to the touch and detected a faint pulse when she came to his office for a follow-up exam on Feb. 21, 2001. Carino said Fugate doubled Horell's pain medication from 40 to 80 milligrams of OxyContin and directed her to have people at home continue to massage her foot.

Two days later, after the symptoms failed to improve, Fugate sent Horell to the Indiana hospital emergency department. According to testimony, doctors there found no pulse in Horell's foot and immediately sent her to UPMC Presbyterian.

Unable to restore the circulation in Horell's foot, surgeons performed an amputation on March 28, 2001.But Pfaff and Gaca said Horell's condition was extremely rare - so uncommon that the medical profession had never recorded an instance of arterial blockages in the wake of surgery for an injury like the one Horell suffered. Gaca also said the clots that shut off blood flow to Horell's foot were irreversible and could not have been corrected by vascular treatment.

Doctors at UPMC documented Horell's case in an article published in the March 2003 issue of Foot & Ankle International Journal, a trade publication for orthopaedic doctors.

Gaca suggested that the outcome would be the same, regardless of who treated Horell.

"There are many unknowns in medicine," Gaca told the jury. "What has happened has mystified doctors at the University of Pittsburgh, but Dr. Fugate was supposed to recognize this right away?

"He's not Superman. He has no crystal ball. He can only treat his patients as he is trained."

In summarizing the testimony of an economist, Carino asked the jury to consider awarding Horell $97,000 for past medical bills and more than $1.2 million for future medical expenses.

Carino said Horell should be given $1.6 million - the difference between her projected lifetime earnings as a handicapped person and the amount she could expect to earn if she were not disabled. He also asked the jury to award unspecified damages for pain and suffering, mental anguish and loss of life's pleasures.

Carino told the jury in his closing argument that although the complication was unheard of in the context of an ankle injury like Horell's, Fugate should have known what the symptoms indicated.

"Why were the University of Pittsburgh doctors unable to save her foot?" Fugate's attorney, Gaca, said. "Are we meant to have the answers to all questions?

"'The secret things belong unto the Lord our God,'" Gaca said, quoting from Deuteronomy. Carino used an analogy to describe the diagnosis: someone who hears hoofbeats is likely to look for horses and not notice a herd of zebras. "For Dr. Fugate, the zebra was three black toes, two pink toes, a foot cool to touch and extreme pain," Carino told the jury. "He should have recognized a zebra, not a horse."