Approximately 90 minutes after the plaintiff’s arrival, and after his hand weakness and tingling had worsened, the moonlighting defendant, with the second defendant standing by and watching, lifted the plaintiff off the stretcher to a seated position in order to examine the patient’s cervical range of motion. When his torso was lifted to approximately 45 degrees, the plaintiff’s head flopped over, he screamed in pain and he cried out "the bones are breaking in my neck." The defendants immediately laid the plaintiff down and replaced the cervical collar. Within minutes, plaintiff lost all sensation in his legs, abdomen and eventually up to his shoulder blades. An emergency MRI demonstrated compression of the spinal cord at C4-C5. The plaintiff underwent emergency spinal fusion that day, but, nevertheless, was rendered quadriplegic. He survived for 18 months as a ventilator dependent quadriplegic in a Boston area spinal cord hospital before his death from complications related to repeated aspiration pneumonia.

The nurse who cared for the plaintiff testified in her deposition that at the end of her shift, she exclaimed to the nursing staff "We’ve just broken somebody’s neck. We just paralyzed him…[defendant number 1] sat him up, but [defendant number 2] would not intervene." That nurse carefully recorded all of the events of that morning in the patient’s chart and she also kept personal notes of all of her conversations with the defendants. Those notes were obtained through discovery.

The third defendant physician was the Chairman of the emergency department who was not present but had hired the two defendant physicians. The fourth defendant was the emergency medicine group for whom all of the defendant physicians worked. Following the plaintiff’s death from complications related to quadriplegia, plaintiff amended the complaint to add claims wrongful death against all defendants.

The liability of the moonlighting defendant was clearly established. He admitted in his deposition that lifting the patient off the stretcher was a mistake that probably caused the plaintiff’s quadriplegia. Three months after his deposition, plaintiffs demanded payment of this defendant’s $1 million policy limits, without a release, pursuant to Thaler v. The American Insurance Company. The defendant’s insurance carrier, agreed to pay the policy limits without a release. However, defendant vehemently objected to the payment without a release. Defendant’s counsel then filed for an injunction to prevent the insurer from paying without a release. The trial court Judge denied defendant’s request for relief. Defendant then filed an interlocutory appeal to a Single Justice, which after hearing, was denied. Two weeks later, the insurer paid the policy limits and the first defendant remained in the case.

The liability of the remaining defendants was strongly contested. Plaintiffs contended that the second defendant physician, had a duty to intervene in the medical care of the plaintiff by ordering the restoration of cervical precautions and the ordering of cervical x-rays. The defendant physician claimed that he did not have the authority to intervene in the patient’s care. However, following the sitting up incident, he sprung into action and took over handling the case without asking for permission to do so. The defendant’s trial expert was expected to testify that the second physician never established a physician-patient relationship with the plaintiff, but that he delivered care after the sitting-up incident as a "good samaritan." That expert was also expected to testify that nurse who kept notes had the responsibility to intervene and was in the best position to do so. Plaintiffs expected to demonstrate the second defendant’s consciousness of liability with evidence of his failure to chart any of his examination findings or orders and by his post-incident suggestion to the nurse that she "did not have to chart everything."

The liability of the defendant department chairman was based upon his negligent hiring of the moonlighting defendant and upon his negligent supervision and management of the emergency department. Plaintiffs obtained the physicians hospital credential files which indicated that in the three years prior to July, 1995, the first defendant had worked in 13 different medical positions, was licensed to practice medicine in 9 states and had, according to several physician practitioner questionnaires a "history of serious interpersonal problems". Despite this background, the defendant spoke with no references and failed to investigate these previous interpersonal problems. Finally, defendant failed to establish a clear policy in the emergency department that the board certified emergency physician could supersede and intervene in the care of a patient by a non-board certified emergency physician in the event of any disagreement regarding care and treatment. Coincidentally, the defendant promulgated this policy three days after the incident in this case.

The liability of defendant medical group was based upon its vicarious liability for the negligence and gross negligence of its employees. The only issue relative to the group was whether the first defendant was an independent contractor or an employee. Plaintiff was prepared to present evidence that despite its efforts to distance itself from the first defendant, the group exercised the requisite control over him to make him its employee, and it responsible for his egregious conduct.

Following a full day mediation with Peter Contuzzi, the parties settled the remaining claims for $1,030,000.00. This included cash contributions from the primary defendant physician as well as from the uninsured group practice.

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