Bulletin E-Edition:
Jury sides with Bend doctor
By Sheila G. Miller / The Bulletin
Published: August 19. 2008 4:00AM PST“My heart goes out to the Brenn family,” Dr. Anthony Hinz said Monday after the verdict. “I tried to take care of the family and the people involved to the best of my ability.”
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It took a jury fewer than three hours Monday evening to determine that Dr. Anthony Hinz was not negligent in his care of Stephen Brenn, who died in April 2006, hours after a successful ankle surgery. Hinz, a Bend orthopedic surgeon who was sued by Brenn’s estate for $9.7 million in lost wages and other damages, cried and hugged his lawyers and wife Monday after the unanimous verdict.
“I’m relieved to see what I know in my heart of hearts was the right outcome,” Hinz said outside the courtroom Monday. “I feel relieved, but I’m still saddened by the loss of Stephen Brenn. I think of him every single day.”
The jury went into deliberation Monday evening, after several hours of closing arguments, to determine whether Hinz was negligent in the death of his friend and patient. Hinz performed a successful, five-hour ankle replacement surgery on Brenn, but after the surgery, Brenn complained of severe pain and received a combination of OxyContin, Dilaudid and Ativan two hours before he was found dead in his St. Charles Bend hospital room.
Brenn, 47, was a Jeld-Wen vice president and married father of two.
There were six allegations of negligence against Hinz, including that he shouldn’t have ordered the doses of narcotics and anti-anxiety medications that he did and that he failed to order increased monittoring or ask for an anesthesiologist to consult.
Bill Barton, the estate’s lawyer, said Monday evening he respected the jury’s decision, and couldn’t be sure how the Brenn family felt about it. The family was not present for the verdict.
“I believe in the system,” he said. “I had my day in court, and that’s all I’m entitled to.”
Lawyers for both sides of the case presented their closing arguments to jurors Monday. The plaintiff’s lawyers argued not only that Brenn died of an overdose, but that Hinz was being protected by a brotherhood of doctors who didn’t want to see one of their own sued. Gordon Welborn, the lawyer for the defense, said Hinz had met the standard of care necessary, and while Brenn’s death was a tragedy, it wasn’t Hinz’s fault.
Negligence charged
Barton spoke first. He told jurors the decision they had to make was simple.
“You don’t go to the hospital for ankle surgery and end up in the morgue,” he said. “It don’t work that way.”
Negligence, Barton said, is a lack of care, skill or diligence. And Barton said Hinz was negligent in a variety of ways, particularly in the drugs he ordered for the patient.
“That’s not pain management,” Barton said. “They simply kept pouring on the meds.”
Barton called into question several defense witnesses’ credibility, claiming they were flip about the power of the OxyContin given to Brenn before his death.
“For any doctor to come here and say OxyContin doesn’t have a thing to do with Mr. Brenn’s death … then A, they don’t know what they’re talking about, which is not true,” he said. “Or B, they’re prepared to come up with every excuse on earth to protect a fellow doctor.”
When doctors are the subject of lawsuits, Barton said, “they go ballistic, they go nuts … how can ordinary people second-guess me?”
As a result, he said, the medical community may have banded around Hinz to insulate him from this lawsuit.
Barton told jurors Deschutes County Medical Examiner Dr. Chris Hatlestad had failed to order a test for OxyContin in the blood and changed Brenn’s death certificate to protect Hinz. He said doctors at the Salem hospital where the blood was originally tested purposefully set the vials aside to keep the blood from showing toxic levels of narcotics. And he said the doctors who were called by the defense lied under oath about the drugs Hinz ordered for Brenn in an attempt to protect him as well.
But, Barton said, the real issue at the center of the trial remained unchanged.
“Somewhere in the middle of this someone lost a life,” he said, his eyes misting over as he held up a poster board of Brenn family pictures.
The defense’s turn
Welborn balked at the suggestion of a brotherhood of doctors protecting their own.
“If you listen to Mr. Barton, it’s almost a conspiracy to the level of the JFK shooting,” he said. “There’s this magic bullet, with every connection needed.”
But, Welborn argued, that wasn’t the case at all.
“You watched these doctors testify,” he told the jury. “They didn’t waffle. … They said the medication prescribed here was nothing out of the ordinary.”
Welborn also told the jury about the original lawsuit, which was filed in September 2006 and listed only St. Charles Bend and its parent company, Cascade Healthcare Community, as defendants.
In that lawsuit, Welborn pointed out, the Brenn estate accused the hospital and nursing staff of negligence. An amendment added Hinz to the original complaint. Then, in August, an amended complaint listed only Hinz as a defendant, because the hospital’s parent company settled.
But, Welborn noted, the original lawsuit sought $7.5 million in non-compensatory losses for things like loss of companionship, while the lawsuit against Hinz sought only $1 million in those losses, in addition to $8.7 million in lost wages and stock.
“I guess you’re being asked to figure out how the loss of someone’s society and companionship … went down $6.5 million in one month?” Welborn asked.
Welborn pointed to testimony during the trial raising questions about whether the nurses on duty fulfilled their monitoring requirements, and whether they checked on Brenn at all between 8 p.m. and when he was found dead.
And he raised questions about the various other hospital staff who might have prevented Brenn’s death, including the pharmacist who had to approve the medications Hinz ordered. But most importantly, Welborn said, were the various doctors who said Hinz did everything expected of a doctor.
“Nothing about this combination of medications was an overdose,” Welborn said. “Is there any evidence of that, other than (the plaintiffs’ doctors’) testimony?”
The jury started deliberating around 5 p.m. Monday and was back with a verdict before 8 p.m.
“This was a horrible tragedy,” Welborn said. “I wish we weren’t here. But I believe the evidence was overwhelming based upon the experts who testified. Dr. Hinz met the standard of care. He’s a good doctor. And we want this guy working.”
As Barton packed up court documents and exhibits, Hinz stood in an otherwise deserted courthouse.
“I think a lot of physicians, given the climate of medical malpractice, understand how unnecessary and how burdensome and crazy some of these cases can become,” Hinz said. “My heart goes out to the Brenn family. I tried to take care of the family and the people involved to the best of my ability.”
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