Jury award to man for retractor left in body is $250,000

By J. Harry Jones

UNION-TRIBUNE STAFF WRITER
May 23, 2002

A Rancho Bernardo man who spent 17 days with a 14-inch-long metal retractor inside his body because doctors forgot to remove it during surgery was awarded $250,000 yesterday by a San Diego jury.

The damages were the most that Dan Jennings could have won under state medical-malpractice law because of rulings by the judge during the three-week trial.

"I feel as though our case was validated by the jury," Jennings, 47, said after the trial concluded. "I still have pain," Jennings said, "but emotionally, it's like 'Thank you, God.' It's a very big moral victory."

In September 2000, Jennings underwent surgery at Palomar Medical Center to repair an abnormality between his bowel and bladder. The surgery, performed by Drs. Fred Hammill and Paul Polishuk, lasted about four hours.

Sixteen days later, because Jennings was still in great pain, X-rays were taken of Jennings' midsection. They showed a 14-inch-by-2-inch metal retractor lodged between his stomach and chest. The same doctors removed the medical instrument the next day. The doctors and the hospital were the defendants in the suit.

Jennings had sought $4 million for the suffering he said was caused by the medical error. He contended in his suit that the retractor had caused a serious infection that left him unable to work. Infectious-disease experts gave conflicting testimony about whether the retractor caused the infection. Judge Sheridan Reed ruled that the testimony of a doctor who said the retractor almost definitely caused the infection should not be considered by the jury, and she instructed jurors to disregard it. Reed said Jennings had failed to prove the retractor had anything to do with his other medical problems. Her decision was upheld by an appeals court during a break in the trial.

After the verdicts were read, Reed asked the jurors if their jury experience had been positive. Most of the jurors shook their heads no. "I never want to be a juror again," one said. "I thought we had an extreme lack of information to base our decision on," said another. "I felt like we weren't playing with a full deck," said a third. Jennings' attorney, Joseph Maiorano, later criticized some of the judge's rulings and said he would appeal them in hopes of winning a new trial in which he would be able to argue the infection was caused by the retractor.

Dan Deuprey, an attorney representing the hospital, praised the judge and said he thought she had been fair. He and the other attorneys representing the doctors declined to comment further. In interviews after the verdict, jurors said that, during deliberations, some of them had been discussing awarding Jennings more than a million dollars while others were leaning toward next to nothing.

Hammill has retired and is no longer operating on patients. Jennings said he has filed complaints with state medical officials about both Hammill and Polishuk.

J. Harry Jones: (619) 542-4590; jharry.jones@uniontrib.com

Following is text of my letter to the Union Tribune Editorial Department with copy sent to Reporter J. Harry Jones.

I was in the initial jury pool for the Palomar Medical Center trial.

During the first day of jury selection, I was one of several jurors so personally, intensely and publicy questioned by Judge Sheridan Reed that our own rights to privacy and respect were violated. All of her questions implied a pro-defense bias on her part.

During the second day of selection, I finally directed my objections to defense counsel because I felt Judge Reed was acting on their behalf.

Judge Reed publicly held me up to ridicule and shame, questioning whether I had the ability to be fair and just, or had I been corrupted by past judicial and medical experiences?

It was a lesson in group control that I'm sure the other potential jurors did not miss. How many other qualified jurors quickly volunteered excuses to flee her offensive questions, possibly skewing jury selection?

Prior to deliberations, Judge Reed issued an instruction that Mr. Jennings' problems are unrelated to the retractor. Why did she even bother convening a jury? First she did her best to save defense jury waivers, next she settled the central question before the case went to the jury.

Since reading your reporter's interviews of jurors, I believe many on the sitting jury also question the Court's behavior.

I'm glad your reporter covered all aspects of this trial.

CB
San Diego, CA