The parents of a child who survived a botched brain surgery at Arkansas Children's Hospital in 2004 asked the state Claims Commission on Wednesday to award them money, arguing that the state is partially responsible for the medical malpractice.
Attorneys representing the family of Cody Metheny said many of the people involved during the surgery were employees of the University of Arkansas for Medical Sciences. The state's teaching hospital was "vicariously liable" for a procedure that has led to long-term cognitive and emotional struggles for Metheny, the attorneys said. The surgery was intended to alleviate seizures suffered by Metheny, then 15.
The Metheny family's lead attorney, Phillip Duncan, said UAMS staff members failed to help Metheny and then engaged in an 18-month cover-up, preventing Metheny's parents from learning that the doctor had removed a portion of the wrong part of their son's brain. A reporter and photographer with the Arkansas Democrat-Gazette were in the operating room at the beginning of the surgery but were ordered out once the surgeon discovered his error.
After the surgery, Cody Metheny spent several years at a facility in Virginia, which cost the family about $2 million, according to his family. He now lives with his parents and is under constant supervision and requires regular medical services.
"We're here because there is not enough money to take care of Cody," Duncan argued. "This is our court of last resort. It is where you come to ask for what is right and what is just."
The three-member Claims Commission hears grievances against state entities that are protected from civil suit by sovereign immunity. The panel then recommends to the Legislature whether monetary damages should be awarded.
In September 2010, Metheny's parents, Kenneth and Pamela, were awarded $20 million by a Pulaski County Circuit Court jury. However, the judge in the case reduced the amount to $11 million, to be paid by Children's Hospital's insurer, ProAssurance.
Duncan said the commission should award the family the difference between the jury's finding and the judgment.
"We're not saying that Arkansas Children's Hospital didn't have some responsibility. We did get a [civil court] judgment against them," Duncan said. "This cover-up cannot happen without UAMS involvement ... either through posing a deaf ear or a blind eye to actively not doing what they were required to do."
During arguments that lasted several hours, UAMS attorney Sherri Robinson disputed the degree of long-term damage done by the procedure, citing some testimony that showed Metheny's emotional and cognitive functions improved after the procedure.
She said the surgeon involved worked for Children's Hospital even though he was a UAMS employee.
Dr. Badih Adada, the former head of neurosurgery at Children's Hospital and a UAMS staff member, settled with the family for $1 million.
Robinson said when UAMS employees care for Children's Hospital patients, they are under the policy and administrative oversight of Children's Hospital.
"It is undisputed that in the affiliation agreement between [the two hospitals] ... both parties agree that they shall continue to exist and function as separate institutions," Robinson argued, adding that Children's Hospital isn't liable for UAMS' debts.
The chief executive officer at UAMS Medical Center, Roxane Townsend, testified that affiliation agreements between teaching hospitals and other hospitals are standard in the medical industry.
But, she warned, if the commission were to find that the state's medical school was somehow liable for actions its employees did while working for a different hospital, the consequences could negatively affect health care across the state.
"We'd have to rethink as an institution where and how we would train our trainees," Townsend said. "I find it very bizarre ... to hold an institution responsible for activity happening in a separate, licensed institution. ... [A finding of liability] would set a precedent to all of a sudden create some kind of legal connection that's outlined as a teaching affiliation and laying responsibility on the institution."
Metro on 10/15/2015