A Hawaii jury yesterday awarded $5.6 million in a personal injury medical malpractice case to a man who had a screwdriver placed in his back instead of a titanium rod. The facts in this medical malpractice case are incredible. The surgeon, Dr. Robert Ricketson, who lost his medical license in Oklahoma and Texas amidst allegations of drug use before coming to Hawaii, began surgery on a patient and realized after two hours of surgery that the titanium rod that was to be inserted in the patient’s back was nowhere to be found. Dr. Ricketson chose to use a screwdriver instead of the titanium rod. A nurse who was assisting Dr. Ricketson urged him to wait because a titanium rod was being sent from another island. He asked the nurse to leave the operating room. Not surprisingly, the screwdriver snapped in just few days. Three failed corrective surgeries later, Arturo Iturralde, a Baptist minister, was rendered a parapalegic. Just absolutely awful.
Under Hawaii’s comparative fault system, the jury found that Dr. Ricketson was 65% liable for medical bills and pain and suffering damages and the hospital was 35% responsible. The hospital was found responsible for letting Dr. Ricketson perform surgery at their hospital in spite of the evidence that he was not a responsible physician and because the nurse was also blamed for the failure to make sure the rod was ready before the surgery began. The total award for compensatory damages was approximately $2.2 million. The jury also awarded $3.5 million in punitive damages against Dr. Ricketson.
Realistically, the patient’s estate and wrongful death beneficiaries (he died in 2003, two years after the surgery) beneficiaries will collect $770,000 from the hospital. Dr. Ricketson was uninsured and acted as his own attorney at trial.
Interestingly, this case would turn out much differently in Maryland. First, there would not be a punitive damages award given the lack of actual malice which is required in Maryland for a punitive damages claim. See Owens-Illinois, Inc. v. Zenobia , 325 Md. 420 (1992). It is unlikely a Maryland medical malpractice attorney would even plead punitive damages in a case like this. In contrast, Hawaii’s punitive damages standard is merely whether the “defendant has acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations.” AMFAC, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 138 (1992).
But in this case, the plaintiff’s medical malpractice lawyer willl recover only $770,000 for his client because of Hawaii’s comparative negligence law does not allow for joint and severable liability. In Maryland, a jury would have found that both parties were “substantial contributing causes of the injury” and the plaintiff’s lawyer could choose which Defendant he/she wanted to collect from for the injured party’s recovery. Accordingly, the Plaintiff would be able to recover, had this case occurred in Maryland, approximately $900,000 (limited by Maryland’s cap on pain and suffering) from the hospital instead of $770,000