Saturday, October 26, 2013/lk
The top administrators at Mid-Columbia Medical Center were found not guilty of negligence in a jury verdict rendered Wednesday evening — but the hospital was directed to pay $2.4 million in damages to three former patients. After more than nine hours of deliberation that began about 10 a.m. Oct. 23, the jury rendered its decision.
Duane Francis, chief executive officer of the hospital, and Diane Storby, vice president of operations, were not held personally responsible. Although MCMC, as a corporation, was not charged punitive damages by jurors — which are intended to send a message that reform is needed — the institution was held responsible for the harm caused to three patients during surgery.
Francis reacts to ruling
By KATHY URSPRUNG
The Dalles Chronicle
Duane Francis, Mid-Columbia Medical Center chief executive officer, reacted to the judgment rendered in the almost four-week trial.
“We are gratified and feel vindicated in one sense that there were no punitive damages awarded either on the hospital or for Ms. Storby or for myself,” Francis said.
“That is clear acknowledgement by the jury that we showed no malice, no intent to hide, obscure, dissuade or thwart the investigation and we were incredibly gratified and agreed fully with that.”
Francis said both he and Storby moved forward “once we knew what we knew and based on what we did” to fully investigate and use the resources to bring Dr. Fredrick Field to justice.
“Third,” Francis said, “we understand that and interpret the decision made by the jury that these poor women were abused by a person in a position of trust in our hospital and it shouldn’t have happened. We could not agree more. We feel that the finding of negligence was a finding by the jury that these women had suffered battery by this sociopathic deviant and that they should be compensated for their pain and suffering. We could not agree more. We just feel like the person who should be held responsible for the compensation for that punishment was not in the room.”
Francis differed with the outcome on the question of whether the hospital itself was negligent and responsible for that compensation. Despite that difference, Francis praised the 12 jurors for their diligence and said he understands their intention.
“Finally, our statement is that we feel during the course of the trial there were a number of questionable and incorrect decisions, rulings and actions taken by the bench that opened this case for appeal and we are considering as we speak appealing the verdict that was rendered,” Francis said.
Willie Gmeinder and Erin Vance, both of The Dalles, and Sharon Hobbs of Mosier, the plaintiffs in this case, were three of 12 women involved in the criminal case against Dr. Frederick Field, a former anesthesiologist at the hospital. In September 2012 Field pleaded guilty to the molestations of Hobbs, Vance and Gmeinder while they were sedated, as well as nine others, and the rape of a nurse.
He was sentenced to 23 years in prison and the civil trial that began Oct. 1 was the first of at least two lawsuits that could be settled in court.
The hospital has already settled two suits for an undisclosed amount of money with several of Field’s victims.
Attorneys for the plaintiffs and defendants claimed victory after Judge Paul Crowley read the judgment of the jury. He had warned about 30 people in the audience, and on both sides of the case, to refrain from making any audible noise of celebration or protest when the verdict was delivered.
Later, the judge thanked all of the attendees at the trial for remaining “professional” during the emotionally charged proceedings where people’s individual characters were under examination. He also commended the jury for being one of the most attentive and businesslike that he had dealt with during 28 years in the field of law.
“You are hands-down among the best I’ve seen and I’m truly honored to be in your presence,” said Crowley, after telling the panel that the American justice system hinged on having juries to represent the community in legal matters.
He then dismissed the jurors and directed everyone else to remain in the courtroom until they had left the premises.
The judge had taken a confidential poll of the jury at the request of Robert Keating, lead attorney on MCMC’s legal team. Crowley read the results and announced that the answers given in the case of Vance were almost identical to the ones for Hobbs and Gmeinder, except for the monetary awards. Nine of the same 12 jurors had to rule in favor of each question regarding an individual plaintiff for a verdict to be reached.
In Vance’s case, all 12 members of the jury agreed that MCMC should be held responsible for her abuse at the hands of Field. Only one of the 12 believed Francis should be found guilty of negligence and two wanted that finding for Storby. The 12 men and women unanimously agreed that MCMC should pay Vance for emotional distress, pain and suffering. Ten of the 12 jurors wanted Vance to receive $700,000, in compensatory damages, which was the final amount, but one wanted the award $100,000 lower and one wanted her to receive a much higher amount.
Hobbs received $800,000 in compensatory damages and Gmeinder was given $900,000, with the same configuration of jurors weighing in on each question for these victims as they had with Vance, according to Crowley.
The plaintiffs’ legal team had asked for a total of $18 million in compensatory and punitive damages.
Andrew Efaw, one of three attorneys for MCMC, spent almost three hours on closing arguments that often questioned the motives of the plaintiffs, or how much of their existing problems had been caused by Field’s abuse.
“I felt bad for the victims,” he said. “To have to bring out the facts to show what they were like before and what they are like now was a tough thing to do. Cases like this are a no-win situation because the victims didn’t deserve what happened to them but the defendants are also good people. I really believed in my clients.”
He said the ultimate win would have been having the hospital not found liable for any wrongdoing and he and Keating are considering asking an appellate court to overturn the jury’s findings. He said that decision will have to be made once the hospital and attorneys have talked further about the matter.
Keating asked Crowley to declare a mistrial before closing arguments were made because the defense had been given a copy of Brenda Allen’s conversation with Francis and Storby in May 2011 only after the trial began. They said that move by the plaintiff’s attorneys had prevented them from preparing for its presentation, which had prejudiced their case. They said the delay by Kafoury and McDougal, a Portland law firm representing two victims, had also protected Allen from being prosecuted for secretly taping someone, which is a Class A misdemeanor, because the statute of limitations had run out for charges to be filed.
By the time Keating raised that argument, Francis had taken the stand and told jurors the tape was a “blessing” and an “answer to prayer” because it showed that he had encouraged Allen, a nurse who works at MCMC, to go to police. She came forward in the spring 2011 with accusations that Field had forced her to touch his genitals during a surgery in 2007.
Crowley determined that the tape should be admissible after Gregory Kafoury, one of the three attorneys for the plaintiffs, said MCMC lawyers had not filed a formal objection to use of the tape before it was aired. He also said the comments made by Francis appeared to show that he was supportive of having the recording played for jurors.
That is one potential issue for appeal and MCMC attorneys also objected to Jason Kafoury, delivering a cup of water to a coughing juror just moments before the jury was sent off to deliberate. The defense also contended there were issues with the way Crowley delivered the jury instructions that might have influenced their decision-making process.
Kafoury, Mark McDougal and Gregory Kafoury were representing Gmeinder and Vance. Attorney Jan Wyers of Hood River had Hobbs for a client in the consolidated trial.
While waiting to leave the courtroom, McDougal said the verdict was a victory for the plaintiffs, even if smaller than the original request.
“It is a finding of evidence against the hospital and may be usable in other places,” he said. “The plaintiffs got what they wanted with the finding that the hospital was liable for negligence and liable for battery (allowing use of force) against both our clients.”
Gregory Kafoury, who split about five hours of closing argument and rebuttal with Wyers and McDougal, said his legal team had delivered on their promise to bring the facts of Fields’ abuse out in the open.
“We promised on behalf of our clients that this community would have a trial so they would not face decades of doubt,” he said “We did what we set out to do.”
Four to five other victims are working with McDougal and Kafoury and set to start a similar civil trial involving MCMC, Francis and Storby as defendants in March, if their cases are not settled first.
While Efaw said the jury saw that there was no deliberate intent on the part of the hospital or its administrators to cover up Field’s abuse, Gregory Kafoury interpreted the verdict differently. He said the people on the panel, based on the breakdown of their votes, were more comfortable dealing with the hospital as a whole instead of suing individuals.
“We are always disappointed when there are findings of liabilities but always gratified when there is no finding of punitive,” said Efaw.
Kafoury said Francis and Storby have not gotten off the hook; that they are still responsible for the damages awarded to his clients because they are in charge of day-to-day operations at the hospital.