Practice Areas

BSPH Wins Five Defense Jury Verdicts This Summer

Intramuscular Injection Case

On August 1, 2013, John S. Polito and Bret C. Perry obtained a unanimous defense verdict on behalf of a region-al medical center in the Cuyahoga County Court of Common Pleas. Plaintiff claimed that, following a routine intramuscular injection, he developed overwhelming septicemia and abscess formations in his lumbar spine, shoulder joints, and elbow. These problems required multiple surgical debridements and long-term antibiotic therapy.

The defense team successfully argued that the standard of care was met in the administration of the intra-muscular injection. More importantly, the defense team offered persuasive evidence that Plaintiff was likely infected, and suffering from early signs of infection, prior to the ad-ministration of the intramuscular injection. While the intra-muscular injection and the resulting infection were tempo-rally related, there was no causal relationship with respect to the intramuscular injections and resulting outcome. The jury returned a defense verdict in less than one hour.

Nursing Home Care

On July 25, 2013, Steven J. Hupp and Ronald A. Margolis obtained a Directed Verdict on behalf of Altercare of Cuyahoga Falls, a skilled and long-term care nursing facility, in the Summit County Court of Common Pleas. This was an alleged wrongful death case concerning a 72-year-old female resident, who was admitted following hip replacement surgery. The resident was a long-term pain management patient, who was on high-dose pain medications, including Morphine and a Fentanyl patch.

The resident was frequently found to be obtunded following her medication administration. She died suddenly three weeks into her admission. The family testified that she was having fevers and frequent diarrhea. The nursing home chart was incomplete. There were minimal nursing notes, and seven days of charting was lost and never located.

An autopsy showed forty centimeters of Pseudo-membranous Colitis in the large bowel. However, a very large blood clot was found in the right ventricle of the heart, and clots were found in both pulmonary arteries.

Plaintiff's experts claimed that the nurses were negligent for failing to document the signs and symptoms of a C-Diff infection and further failed to contact a physician concerning these findings. Plaintiff's physician expert claimed that the resident died from an undiagnosed C-Diff infection. The defense team argued that the resident never suffered from a C-Diff infection and that her sudden death was the result of a very large blood clot in her right ventricle.

After the defense team aggressively cross-examined Plaintiff's experts and obtained several concessions, Plaintiff could no longer sustain their theory of the case. The trial court was forced to grant a directed verdict in favor of the facility.


On August 14, 2013, Steven J. Hupp and Ronald A. Margolis received a unanimous defense verdict in the Stark County Court of Common Pleas. Plaintiff was a morbidly obese woman with a large pannis. Plaintiff had undergone a previous Caesarian section. She underwent an urgent Caesarian section due to her water breaking. At some point during the procedure, the patient's small bowel (near the cecum) was transected. On post-operative day three, the patient had stool exiting her surgical incision. She was taken for emergency surgery and had an ileostomy created. Her postoperative course was complicated and required additional surgeries for a large abdominal hernia.

Plaintiffs' experts claimed that the defendant OB/GYN breached the standard of care when he cut the small bowel with a scalpel during the C-Section due to insufficient operative exposure. The defense team successfully established that the portion of the bowel that was injured had an adhesion, which would have anchored this portion of bowel. The defense expert testified that the bowel was probably injured by retraction during the procedure.

Plaintiffs' counsel requested a $1.1 million dollar judgment during his closing argument. The jury deliberated for less than two hours before returning a verdict for the defense.

Plastic Surgery

On August 12, 2013, Attorney Jeffrey W. Van Wagner received a unanimous defense verdict in the Cuyahoga County Court of Common Pleas. Plaintiff was a patient who elected to have an abdominoplasty and liposuction, despite a history of underlying liver disease. The defendant plastic surgeon sought and obtained clearance from the patient's treating hepatologist and performed the requested surgery. The patient appeared stable in the PACU and was discharged to home, but subsequently went into hemorrhagic shock and was hospitalized. She eventually made a full recovery.

Plaintiff's expert asserted that the plastic surgeon breached the standard of care in performing the surgery at all based on the patient's liver disease and in performing a surgery of more than six hours duration. He also opinioned that the plastic surgeon should have sent the patient to the emergency room sooner on the night she was discharged.

The defense team presented experts to testify that the patient's liver reserves were sufficient for surgery, that it was reasonable for a plastic surgeon to rely on a clearance from the patient's hepatologist, and that there would have been no difference in outcome had the patient been taken to the emergency room earlier in the evening.

Plaintiff's original demand was for $350,000. The jury deliberated only forty-five minutes before returning a unanimous defense verdict.

Premises Liability

On September 7, 2013, Beth A. Sebaugh and received a unanimous defense verdict in the Cuyahoga County Court of Common Pleas in a premises liability case. Plaintiffs alleged negligence of a private school in per-mitting a hazard to exist, injuring a child during physical education. The claimed hazardous condition was an exposed storage door hinge and a return air grate located on a gymnasium wall. Injuries included knee and forearm lacerations requiring stitches to close, as well as permanent scarring.

The defense team successfully established that the conditions complained of were not foreseeable causes of injury. Defense counsel argued that the premises owner had the right to rely upon the architectural firm who designed the construction specifications, as well as the City Building Depart-ment who approved the design and construction of the gymnasium.

Plaintiffs' counsel requested damages in a range exceeding $250,000 during his closing argument. The jury deliberated for approximately one-half day before returning a unanimous verdict for the defense.