Indiana Court Overturns $1.3 Million Amputation Verdict

In a reversal of a significant judgment, the Indiana Court of Appeals overturned a $1.3 million award (reduced from an initial $11 million verdict) in favor of Hetep Bilal "Franklyn" Neter-Nu. Neter-Nu had sued the hospital for negligence resulting in leg amputation. The appellate court's decision hinged on its identification of numerous prejudicial errors committed during the original trial proceedings.

The appellate court panel overturned a jury’s decision that held Methodist Hospital in Gary, Indiana, along with Dr. Zainab Abbas and nurse Morgan Mittler, accountable for medical malpractice. This reversal, issued on June 11, was based on several judicial missteps by Superior Court Judge Bruce D. Parent.

One significant oversight was Judge Parent’s decision to exclude any deliberation on whether the complainant could have contributed to his own harm, despite the considerable 87-hour gap “between Neter-Nu leaving Methodist Hospital and arriving at urgent care in Iowa," which ultimately led to his leg amputation.

The appellate judges argued that the jury should have been allowed to take into account “the evidence regarding the rate and severity of the worsening condition of Neter-Nu's foot and whether his failure to seek treatment earlier under the circumstances was reasonably foreseeable."

The Indiana Court of Appeals not only vacated the jury verdict and ordered a retrial, but also found the trial court erred by not dismissing the case against Methodist Hospital. The panel concluded that Neter-Nu failed to present any evidence at trial to support his claim of vicarious liability against the hospital.

In his original trial, a jury awarded $11 million to Neter-Nu, a father and truck driver, after determining that medical negligence led to the loss of his leg in August 2015. According to Neter-Nu’s legal team, the plaintiff suffered from tissue necrosis (death of body tissue) following an improperly administered IV by nurse Mittler, which was not adequately addressed by the hospital staff. The resulting condition necessitated an amputation below the knee, ending his driving career.

In the final judgment, the court affirmed a combined award of $1,329,993.40 against the defendants. This amount reflects the statutory cap on damages of $1,250,000, coupled with the previously awarded prejudgment interest of $79,993.40.

On review, the appellate court identified several errors in the original trial. Notably, the trial court denied the defense's motion to include a jury instruction on "intervening cause." The defense argued that Neter-Nu's own actions may have exacerbated a potentially minor health concern into a significant emergency.

Specifically, they pointed to the three-day gap between Neter-Nu receiving an IV at Methodist Hospital and his subsequent visit to an Iowa urgent care facility for foot pain. The defense contended that this delay, or another unidentified act by Neter-Nu, constituted an independent intervening event that could potentially sever their liability.

The appellate court agreed with the defense, finding merit in their argument based on the presented evidence. The court concluded that omitting the intervening cause instruction from the jury charge constituted an overreach of judicial discretion.

The appellate court further faulted the trial court for denying Methodist Hospital's motion for a directed verdict at the close of evidence. The hospital argued that Neter-Nu failed to present any evidence beyond the alleged misconduct of Dr. Abbas and Nurse Mittler to establish negligence by any other hospital staff. In the absence of such evidence, the hospital contended that the doctrine of vicarious liability could not be applied.

This argument was bolstered by the fact that, despite Neter-Nu's pre-trial claims of additional hospital staff involvement in his alleged injuries, his expert witnesses solely focused on the actions of Dr. Abbas and Nurse Mittler, failing to implicate any other hospital personnel.

The appellate panel emphasized that the trial record lacked expert testimony evaluating “whether other persons' conduct fell below the applicable standard of care” besides Dr. Abbas and Nurse Mittler. "Because the evidence was insufficient” to establish negligence by other staff, the trial court erred by allowing the jury to consider Methodist Hospital's vicarious liability and “was required to withdraw that issue from the jury."

The case is Abbas v. Neter-Nu, with docket number 23A-CT-438, heard before the Indiana Court of Appeals. The appellate bench for the Indiana Court of Appeals was composed of Judges Elaine B. Brown, Patricia A. Riley, and Peter R. Foley.

David J. Cutshaw, Gabriel A. Hawkins, Edward B. Mulligan, Justin C. Kuhn, and Keith C. Michaels of Cohen & Malad LLP represented Neter-Nu in this case. Representing the hospital, physician, and nurse on the other side of the case were attorneys Michael E. O’Neill, Kelly K. McFadden, and Julie M. Blair from O’Neill McFadden & Willett LLP.