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Wrongful death verdict upheld despite "loophole" objections by insurer

Fourteen year-old James Stone collapsed while walking to his school bus stop.  He suffered intense chest pain and vomited.  His mother drove him to the Emergency Room of Oakwood Hospital, where he was examined by Dr. Donald R. Schipper, M.D.  Schipper performed an EKG, which was normal, diagnosed anxiety and hyperventilation, and sent Stone home.  He died that night in his sleep.  An autopsy showed that he suffered a ruptured aorta during the night and bled to death.  At trial, the jury awarded his family $300,000.00 for the loss of his society and companionship.

Schipper's attorneys admitted that the standard of care required that he order a chest x-ray on Stone, but argued that since Schipper would not likely have foreseen that Stone was suffering a dissecting aorta, Schipper's violation of the standard of care by failing to order the chest x-ray should not make him responsible for this "unlikely" and therefore unforeseeable development.  In other words, they argued that Schipper's mistake in failing to order the chest x-ray should be forgiven because it would have disclosed something that Schipper could not be expected to anticipate.

The Court rejected this argument, noting that all experts agreed that Schipper should have ordered a chest x-ray as part of his differential diagnosis, and that Schipper was responsible for any damages that resulted from his failure to conform to the standard of care.  Since there was viable proof that a chest x-ray would have diagnosed the dissecting aorta (textbook studies supported a claim that the dissecting aorta shows up as an abnormality 80% of the time) and that it would have been surgically treated successfully if diagnosed, Schipper was responsible for his failure to order the x-ray and diagnose the problem.

The Court emphasized that under standard rules of common law negligence, an injury victim need not prove that the negligent actor could foresee the victim's precise injury.  If the victim proves that any injury was foreseeable, the person at fault is responsible for all of the damages resulting from his negligence.  As the Court noted, the insurance company's contrived appeal argument "was factually and legally flawed...and mischaracterizes the testimony."  Another description of the argument would be frivolous and specious.

The Defendants also complained about the victim's family's attorney reading authoritative medical textbooks to the jury in support of the family's claim.

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