TRAVERSE CITY — The family of a man who died from leukemia in 2018 will receive close to $1 million after a jury's ruling in a medical malpractice case.
Jury members at the 13th Circuit Court found in favor of the late Karl Thomsen on Tuesday, awarding compensation of $836,000 for complications that resulted from a 2015 surgery. Thomsen died in April 2018 after complications resurfaced, forcing him to stop treatment of his leukemia, according to his attorney, Stephanie Hoffer. Thomsen's family continued the lawsuit on his behalf after his death.
Thomsen underwent a Roux-en-Y gastric bypass, an elective bariatric surgery, by Dr. Michael A. Nizzi in 2015. Hoffer said Thomsen then suffered from "significant post-operative complications," including respiratory failure, vomiting, a herniation, strangulated bowel and a bowel perforation. Thomsen was hospitalized for 55 days and needed multiple surgeries, Hoffer said.
“This was a tough win," said Hoffer, of Hoffer & Sheremet, PLC. "The medicine was incredibly complicated, but the jury paid close attention. In the end, the jury chose the standard of care that increases patient safety. When doctors know that the community will hold them accountable for their negligence, quality of care increases.”
Rachel Roe, Munson Healthcare vice president and general counsel, said Munson Medical Center originally was named as a defendant in this case, but the organization was dismissed because the parties came to the conclusion that MMC was not negligent.
Hoffer argued that Nizzi was negligent in not ordering a pre-op sleep study and not recommending a sleeve gastrectomy, which she said was a safer procedure for patients with untreated sleep apnea. A sleeve gastrectomy, which Hoffer said is usually completed laparoscopically, is a less intensive procedure that involves blocking off a portion of the stomach. Nizzi performed an open Roux-en-Y to reduce the size of the upper stomach, which Hoffer said is "a much more complicated procedure."
Thomsen's bowel perforated again in 2018, which forced him to stop treatment on his leukemia. Hoffer filed a wrongful death claim as part of the lawsuit, saying the 2018 perforation would not have occurred if there wasn't the first perforation in 2015. Jury members, however, said she could not prove Thomsen would have survived even if treatment had continued.
Kevin Lesperance, Nizzi's attorney, said they strongly disagree with the jury verdict and point to Nizzi's exemplary service in the community for more than 20 years, during which he "helped thousands of our friends and neighbors."
"He has a sterling reputation and has never had even one medical malpractice settlement in his career," Lesperance said.
Lesperance also said the verdict ran contrary to the medical testimony of several expert witnesses, including Thomsen's own expert who agreed that all of the surgeries by Dr. Nizzi in this case were performed correctly.
"Although we disagree with the verdict here, we have great confidence in the legal system and will pursue all avenues for post-judgment relief and appeal," Lesperance said.
The $836,000 award is made up of medical lien expenses, wage loss and $500,000 in non-economic damages for pain and suffering, scarring and disfigurement. The non-economic damages will be reduced to the maximum allowable figure of $465,900.
Hoffer said her firm made an offer to Lesperance a few months ago to settle for Nizzi's insurance limit, which Lesperance rejected. Because of that, Nizzi will have to reimburse the family for costs and attorney fees from the time the offer was submitted until the trial.
Hoffer said that when all is said and done, the total amount of the damages will be closer to $1 million.
Judge Thomas Power, who presided over the case, said there had not been a verdict in favor of the plaintiff in a medical malpractice case in Grand Traverse County since 1997. Hoffer said Grand Traverse County is a "tough venue" to get a favorable ruling in a medical malpractice case because of Munson Medical Center's presence in the community.
"That's really not good for patient safety and patient care," Hoffer said. "It's not like there hasn't been physician negligence in 22 years. It's just they haven't been held accountable."
Roe said Munson has been subject to medical malpractice lawsuits in the past and as recently as November 2018, but in those cases "a jury made up of people of our community has determined that Munson Medical Center was not at fault and there was no negligence on the part of Munson Medical Center."
"I don't know that one medical malpractice verdict is indicative of patient quality and safety," Roe said. "We are regularly surveyed and audited by third parties and have been recognized by national organizations as being a high quality, high patient safety organization."
Hoffer said she expects the verdict will be upheld on appeal.