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Panel awards $2M; surgery mishandled

Ruling finding UAMS liable in case needs legislative OK by Spencer Willems | November 18, 2015 at 5:45 a.m.

The state's Claims Commission awarded $2 million to the family of a man left permanently impaired by an operation on the wrong side of his brain in 2004.

On Tuesday, the commission released a 15-page opinion that found doctors and administrators at the University of Arkansas for Medical Sciences were negligent in the surgery on Cody Metheny. Metheny was 15 when he had an operation at Arkansas Children's Hospital aimed at reducing the number of seizures he was experiencing.

The Claims Commission found that UAMS employees, who were partnered with Arkansas Children's Hospital, failed to follow policies guiding surgeries and the documentation of their outcomes.

The commission is a quasi-legal body that hears claims against state agencies that are protected from lawsuits by sovereign immunity.

UAMS staff members "fraudulently concealed the facts of the surgery" from Metheny's family, who didn't discover the damage done to their son until an unrelated examination, the commission found.

The family's attorney, Phillip Duncan, said he was "thrilled" with the decision and that it was "vindicating" for the Metheny family, who have been litigating the matter for years.

A spokesman for UAMS, Leslie Taylor, said staff members were disappointed by the commission's findings.

"We really disagree. We think the decision was erroneous and UAMS and [Children's Hospital] are clearly two separate legal entities," Taylor said.

The $2 million award, which will have to be reviewed by legislators before being paid, comes five years after a Pulaski County Circuit Court jury said Children's Hospital should pay the Methenys $20 million. The circuit judge handling the case later reduced the amount to $11 million.

The surgeon, Dr. Badih Adada, settled with the family for $1 million. Adada was a professor at UAMS but also the head of the pediatric surgery unit at Children's Hospital.

The $2 million award is equal to the amount that Metheny's family paid out of pocket to a facility in Virginia to help their son for two years after the surgery.

In Tuesday's opinion, the commission noted that it "believes that the damages paid through the insurance coverages" were "inadequate" to help care for Metheny, who will require constant care for the rest of his life.

Several hours into the procedure, Adada realized he had cut into and removed the wrong portion of the brain, according to commission findings. The surgeon went on to operate on the other side of the brain.

A reporter and photographer from the Arkansas Democrat-Gazette were among others observing the surgery, but they were ordered out of the viewing area once the error was discovered.

According to commission findings, the Metheny family was never alerted to the error nor given an option to stop the procedure. It wasn't until an MRI about 18 months later that they discovered that both sides of Metheny's brain had been operated on.

In Tuesday's opinion, the commission rejected arguments made by UAMS attorneys and found that UAMS could be liable for its doctors while they operated at Children's Hospital as a part of the two facilities' ongoing partnership.

The commission wrote that UAMS employees failed to follow the "time out" policy, one in which surgeons and staff members all "huddle up" before a procedure to unanimously agree on what is to be operated on.

UAMS also violated the "sentinel event" policy, which requires employees to disclose medical error in the event of negligence or death.

"Dr. Adada and other UAMS physicians and State of Arkansas employees altered medical record or provided incomplete and untrue information and failed to disclose material facts," the commission wrote. "Under the [doctrine] of respondeat superior, these state employees' negligence and tortious behavior binds UAMS. Consequently, under Arkansas law, UAMS is liable for the admitted negligence."

Taylor said UAMS staff members are evaluating legal options, but they hadn't appealed the commission's decision as of Tuesday afternoon.

The claim will have to be approved by a legislative subcommittee, which has the power to reverse the commission's decision. It could also reduce or increase the amount of money awarded to the Metheny family.

Duncan said that he expects the commission's finding will be well-received by lawmakers, and he hopes the ruling will prevent something similar from happening to another family.

"[The case] is about children, and public policy. It's really not so much a political issue as what is right," Duncan said. "It's been a long hard fight."

Metro on 11/18/2015

Print Headline: Panel awards $2M; surgery mishandled

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