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Leon Whitley lost his leg and his job after undergoing heart surgery at Piedmont Hospital in 1996. Last month, his losses continued in the wake of a suit that has set off accusations of attorney misconduct, led to the banning of an expert witness and sparked a mandamus action by the plaintiffs’ lawyer against Fulton County State Court Judge Craig L. Schwall. Whitley’s case against the hospital, its nurses and the doctors who treated him was thrown out of court Oct. 18. Schwall handed down a 28-page order granting motions for summary judgment for some defendants, and then dismissed the remaining claims with prejudice for alleged manipulation of expert witness testimony by the plaintiffs’ lawyer. But the judge didn’t stop there. Schwall also banned a Florida physician who worked as one of the plaintiffs’ expert witnesses, Dr. Larry R. Williams, saying the doctor may never again appear as an expert witness in his courtroom. “If Dr. Williams violates the instant order by so appearing, the matter in which he appears shall be summarily dismissed with prejudice and Dr. Williams shall be subject to the contempt powers of this court,” Schwall wrote. Whitley’s lawyer, James W. Howard of Tucker, said that in 24 years of practicing law, he’d never heard of an expert witness being banned by a judge. “I’ve never had anything close to this before,” Howard said. The attorney, who previously asked Schwall to recuse himself citing three potential conflicts of interest, filed a mandamus action last week seeking writs of injunction and prohibition to enjoin and prevent the effect of the judge’s ruling. Whitley v. Schwall, No. 2004CV92845 (Fult. Super. filed Oct. 25, 2004). Cary Ichter of Balch & Bingham is representing Schwall in the mandamus action. A hearing in the matter had been scheduled for Friday before Fulton Superior Court Judge Marvin S. Arrington Sr., but Ichter said he will ask for it to be rescheduled because he will be trying a case in federal court then. Howard did not mince words when asked about Schwall’s order. “I am frankly pissed off,” he said. “He’s got all this crap in here. Every single factual allegation in here is false, and he knows it’s false.” Williams, a St. Petersburg physician, did not return two phone messages, one left at his office and one at his home. Schwall declined to speak with the Daily Report, but Ichter said his client stands by the order. “From what I understand from the other litigants, the judge had an extraordinary depth of understanding of the file and went to extraordinary lengths to consider the positions and arguments of all the parties by conducting a hearing that lasted over three hours,” he said. “I regard that as being a rare show of dedication by a judge.” R. Page Powell Jr. of Huff, Powell & Bailey in Atlanta represented Piedmont Hospital. He agreed with the court’s decisions and said Howard’s most recent filings in the case — especially the mandamus petition — contain “unwarranted” allegations of bias against Schwall. “Both the conduct of counsel [Howard] and the factual record in the case provide ample support for the decisions the court made,” Powell said. Timothy H. Bendin of Hall, Booth, Smith & Slover represented Dr. Alexander Justicz, a cardiothoracic surgeon, and his medical practice. Bendin did not return a phone message seeking comment. Russell B. Davis of Downey & Cleveland in Marietta, Ga., represented Dr. William C. Jacobs and his medical practice. “I feel it was the correct ruling,” Davis said. “Beyond that I don’t think I should comment.” Veteran trial attorney Thomas W. Malone of Atlanta, who joined the State Bar of Georgia close to 40 years ago, said he also has never heard of a judge banning an expert. “I suspect the judge has that inherent authority to do that,” he said. “But I cannot recall any specific instance of that ever happening.” As for the plaintiff, Whitley told the Daily Report that he has been pleased with his lawyer’s work and hopes that one day he will have the merits of the case decided by a jury, not a judge. “I understand that right now a lot of frivolous lawsuits are being filed,” Whitley said. “However, in my situation, I lost a limb, and I feel I lost the limb due to the negligence of the medical professionals who were working on my medical condition.” SURGERY COMPLICATIONS Whitley’s medical ordeal began on March 12, 1996, when he went to Piedmont Hospital for coronary bypass surgery. According to Schwall’s order, during the surgery an intra-aortic balloon pump was inserted into Whitley’s body through the femoral artery in his right leg. The balloon pump assists in circulation and helps decrease the work of the heart, according to Piedmont’s motion to dismiss. After the operation, Whitley was taken to the intensive care unit where, for the next 48 hours, the nursing and medical staff were supposed to monitor his leg for signs of “ischemia,” or a reduction in blood flow that can lead to tissue damage. Williams, the plaintiffs’ expert witness, said the balloon pump used in Whitley’s surgery had been known to reduce the blood flow to the leg. Piedmont Hospital contended that its nurses “closely monitored” Whitley’s condition, regularly checked for pulses in the right foot and routinely assessed the leg’s appearance, temperature and color. In addition, the testimony in the case appears to show that Whitley’s doctors — a cardiologist and a cardiothoracic surgeon — examined the patient while the balloon pump was still in his leg. However, they did not observe any trouble. Two days after the surgery, the medical staff removed the balloon pump. Shortly thereafter, Whitley began exhibiting signs of ischemia, according to Schwall’s order. Despite several subsequent surgeries, Whitley’s leg ultimately had to be amputated just below the knee. Whitley and his wife, Mary, then filed suit against Piedmont Hospital in its capacity as employer of the nurses who cared for him, as well as the physicians who performed the surgery and their medical practices. Whitley v. Piedmont, No. 01-VS-015699 (Fult. St. filed March 12, 2001). NURSES’ NEGLIGENCE AT ISSUE At issue in Williams’ expert testimony is the establishment of a “causal connection” between Whitley’s injury and the alleged negligence of Piedmont’s nurses. Initially, the case was assigned to Fulton State Court Judge Susan B. Forsling, but when Gov. George E. “Sonny” Perdue III appointed Schwall to the bench in September 2003, the case was reassigned to the new judge. While the case was still assigned to Forsling, Williams provided an expert affidavit to support his supposition that the nurses were negligent. However, during a subsequent deposition, Williams told Piedmont’s attorneys that Whitley’s doctors were aware of the patient’s condition and that any additional notification from the nurses likely would not have led to the doctors’ changing their treatment. After the first deposition, Howard worked with Williams to create an “errata sheet,” changing some of the testimony with regards to the causation issue. He also filed a new expert affidavit sheet that would agree with the changes in the errata sheet. In light of the errata sheet and the changes to the first deposition, Forsling granted a request from Piedmont’s attorneys to depose Williams once more. Again, the witness’s testimony appeared to favor the hospital’s argument that their nurses were not at fault. Piedmont’s attorneys awaited another errata sheet, but Howard instead filed a motion to strike Piedmont’s answer, saying some unknown person had altered Whitley’s medical records. Forsling denied the motion to strike after finding that the alterations did not amount to anything suspicious. After that ruling, the case was reassigned to Schwall. By this time, Piedmont had filed a motion for summary judgment, citing much of Williams’ testimony from the depositions. Afterward, Howard filed a third expert affidavit from Williams. This latest expert affidavit was submitted primarily to verify that Williams had reviewed the certified case records, Howard said. On July 22, Schwall conducted a conference call with all the counsel in the case. Howard asked for an extension of his deadline to file his response to Piedmont’s motion for summary judgment. Schwall granted the extension but, according to his order, also told Howard that he could not use the additional time “to obtain other expert testimony.” Howard disputes the judge’s recollection of the phone call and says he was never told not to hire another expert. “I don’t know if [Schwall] forgot or he’s simply mistaken, but he’s definitely wrong,” Howard said. Either way, Howard hired another expert witness and submitted an expert affidavit from him as part of the plaintiffs’ response to the motion for summary judgment. Schwall was clearly perturbed by all the changes. “This court cannot condone the manipulation of deposition testimony, the submission of apparently false affidavit testimony or the attempt to mislead the court,” he wrote. “Such conduct constitutes an abuse of the civil litigation process which, in the court’s opinion, justifies severe sanctions.” Citing the lack of causation, Schwall granted the motion for summary judgment in favor of Piedmont Hospital, its nurses and one of the cardiologists. As for the remaining claims against one other doctor and his medical practice, Schwall dismissed them sua sponte with prejudice in order to punish Howard for the lawyer’s alleged manipulation of expert testimony and for misleading the court in a bid to obtain the time extension. Howard conceded that Williams “waffled” in his testimony, but he denied Schwall’s allegations. “We would have to clarify [Williams'] testimony because he would leave out facts or forget critical facts,” Howard said. “He was not a good witness.” The lawyer credited Piedmont’s “skilled defense counsel” with getting Williams to answer questions without having him think clearly about his answers. Williams “didn’t handle cross-examination well and his testimony became confusing on certain issues,” Howard said. “But he never changed his opinion [as to causation].” RECUSAL REQUESTED At the start of a Sept. 9 hearing, Schwall disclosed that he recently had remembered that a physician who was “connected” to one of the medical practices named as a defendant had treated him in the past. Schwall’s personal physician, however, was not a party or a witness in Whitley’s suit. However, Howard’s demand for Schwall’s recusal did not come until more than an hour had elapsed during the hearing. Howard said he did not raise the issue of recusal until he felt that Schwall was not conducting a fair hearing. “After we saw how he was conducting the hearing, the way he was attacking me, it was fairly obvious we were not going to get a fair hearing,” he said. Schwall denied the request for recusal, then continued with the hearing. At the close of the proceedings, Howard once again raised the issue of recusal. Schwall denied the motion again. According to the judge’s order, Howard then asked for Schwall to make “full disclosure” of his relationships to all defense counsel. Schwall said he thought Davis, one of the defense lawyers, could be the son of the pediatrician who treated him as a child. Davis confirmed that his father was a pediatrician, but the two men said they had never met before this case. The judge went on say that he had been treated at Piedmont Hospital in the past, but he did not believe that any of these connections should trigger a recusal. “Clearly, this court’s ‘relationship’ with or ‘connection’ to any of the parties or counsel, whether through previous treatment at a large medical care facility, treatment by one (non-party and non-witness) physician (of many) in a defendant medical practice group, or past treatment by the pediatrician father of a counsel, could not lead a fair-minded or reasonable person to perceive impartiality on the part of this court,” Schwall wrote. Whitley said he was disappointed in Schwall’s decision to stay on the case. “Particularly with all the information showing all the conflicts of interest,” he said. Whitley added that his life had been changed completely as a result of the complications arising from the 1996 surgery. He wears a prosthetic leg these days, but it’s painful due to the way the limb was amputated. And now the consequences of the surgery are compounded by his frustration with the court system and his inability to have his claims aired before a jury. “I’m very depressed because this case has been going on a long time,” he said. “I would very much like to see some closure.”

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