John O'Brien Dec. 19, 2012, 9:38am
HUNTINGTON – Cabell Huntington Hospital has settled a wrongful death lawsuit brought by the estate of a woman who died there in July 2011 after being involved in a car-motorcycle accident in Kentucky.
U.S. District Judge Robert Chambers approved the settlement, worth $500,000, on Dec. 10. Chambers wrote that the settlement amount represented the maximum recovery allowed under state law for such a case.
The claims of negligence made by the Estate of Lora McCarty fell within a section of West Virginia law that caps damages in lawsuits brought over the treatment of emergency medical conditions.
“None of the exceptions to the West Virginia Code §55-7B-9© were applicable to the claims in this matter,” Chambers wrote.
“As a result, the total amount of civil damages recoverable for the claims brought in this matter was artificially limited to $500,000, regardless of the actual amount of compensatory or special damages sustained by the Estate of Lora McCarty.”
McCarty died July 10, 2011, after sustaining a head injury in the traffic accident and being admitted to CHH’s Emergency Trauma Center. She received treatment in both the Trauma Emergency Room and Intensive Care Unit.
Her husband Joshua retained the Piscitelli Law Firm and Mundy and Associates to file a medical malpractice lawsuit against CHH, University Physicians & Surgeons and the Marshall University Board of Governors.
The firms’ combined contingency fee is 40 percent.
The complaint said the defendants deviated from the standards of care when administering the medication needed to control Lora McCarty’s brain swelling and intracranial pressure.
That put her at an increased risk for brain death, the suit says.
Chambers wrote that McCarty’s estate suffered $1,341,254 in future lost wages and future household services.
The state law that was applicable to the suit is designed to protect health care facilities and workers who provided good faith services or assistance in an emergency condition.
There are exceptions to the law that did not apply to McCarty’s case but would provide other litigants with an opportunity for higher recovery. Those exceptions are willful, wanton or reckless disregard of a risk of harm to the patient or treatment in clear violation of established written protocols for triage and emergency health care procedures.
Attorneys will keep $200,000 of the settlement, while husband Joshua and daughter Karli will each receive $144,026.93.