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A Berks County jury has awarded more than $2.06 million to a Philadelphia lawyer’s client who claimed his podiatrist’s failure to recognize his vascular problems led to his legs’ being amputated after what should have been routine toe corn surgery. However, the jurors in Davis v. Rinaldi did conclude that 57-year-old Pottstown native Donald Davis had been comparatively negligent to the tune of 40 percent of the $3.45 million overall award. Even factoring in Davis’ contributory negligence, the verdict marks the largest medical malpractice award handed up by a Berks County jury in recent years. In 2005, 2004 and the latter half of 2003, according to records maintained by the Administrative Office of Pennsylvania Courts, there were no Berks County med mal jury verdicts worth more than $2 million – in fact, there were no plaintiffs’ verdicts in any med mal cases tried in the county over the course of that time period. Between 2000 and the first half of 2003, according to the AOPC data, there were two med mal verdicts worth between $1 million and $5 million handed up by Berks County juries. One of those was a $2.25 million award in August 2002 for a 4-year-old whose right arm had been paralyzed during his 1998 delivery. The Davis verdict is also noteworthy because the jury in the matter had initially reached a verdict in which the jurors split 10-2 on at least two different questions, but with different jurors comprising the 10-member majority each time. According to plaintiff’s attorney Richard Golomb of Golomb & Honik in Philadelphia, Berks County Common Pleas Senior Judge Albert A. Stallone, who presided at trial, then decided to send the jurors back for further deliberations, explaining to them that under a recent Superior Court precedent adopting an “identical juror rule,” any split had to be between the same 10 jurors on any given question. In an apparent case of first impression, a 2-1 majority of a Superior Court panel had ruled in the April 2005 decision in Fritz v. Wright that in applying the five-sixths rule – meaning that only five-sixths of a jury must agree in order for a verdict to be valid – the majority must be the same for all the interrogatories. Each individual interrogatory isn’t a separate verdict, the Superior Court said in Fritz: The verdict consists of all the answers to the interrogatories. Alan Gold of Gold & Robins in Elkins Park, who served as defense counsel in Davis, told The Legal yesterday that he objected when Stallone sent the jury back out after it reached an “inconsistent” verdict, and was planning on appealing under the Superior Court’s holding in Fritz – until the state Supreme Court issued a decision in Fritz late Wednesday in which it reversed the Superior Court. Gold said he believes there are still a number of viable issues to be raised in post-trial motions, including the defense’s assertion that Stallone improperly allowed a vascular surgeon to testify at trial about the standard of care for a podiatrist. According to court papers in the case, Davis had been treated by defendant Therese Rinaldi’s podiatry practice partner as early as 1998, and he was identified at that time as having hardened arteries. But when Davis returned to Foot and Ankle Health Group – also named as a defendant in the action – in 2000 for treatment of calluses on toes on both feet, Rinaldi was apparently unaware of his vascular condition, Davis, a former supervisor at a Pottstown Home Depot, alleged in court papers. When Rinaldi performed surgery on a toe on Davis’ right foot in the fall of 2000, vascular complications arose. Ultimately, according to court papers, Davis was referred to a vascular surgeon, who was unable to re-create the vascular systems in Davis’ legs, resulting in below-the-knees amputations. Rinaldi responded in court papers that Davis not only failed to tell her about his 1998 diagnosis of vascular problems when she first began treating him, but also continued smoking cigarettes and would not take his prescribed blood vessel medicine after she did confirm that he had hardened arteries. Rinaldi claimed that Davis was at least 51 percent negligent for the damage to his right leg. She also suggested in court papers that any damage to Davis’ left leg could have been the result of a third-party vascular surgeon’s decision to “harvest” a vein in Davis’ left leg in an attempt to save the vascular system in his right one. The Davis trial started on Sept. 25, a Monday, and closings were held on Wednesday, Oct. 4. The 12-member jury returned with its verdict the next day, after roughly nine hours’ deliberations, according to Gold and Golomb. According to Golomb, the jury was ultimately polled at 10-2 as to its finding that Rinaldi was negligent and as to its percentage breakdown of negligence. The jury found 12-0 that the defendant practice group had not been negligent. Rinaldi’s negligence was attributed at 60 percent; Davis’, at 40 percent. The verdict included $1.8 million in future medical expenses, according to Golomb. Davis did not make a formal demand in court papers, but he stated that he believed a jury might award in excess of $5 million. Golomb said the defense had made a $50,000 offer. Gold declined to comment on any offers made on behalf of his client. The insurance policies relevant to the case totaled some $2.4 million in coverage, according to Golomb.

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