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Jury awards $5.8 million in malpractice case

01:00 AM EST on Thursday, November 29, 2007

By Edward Fitzpatrick

Journal Staff Writer

PROVIDENCE — A Superior Court jury has awarded $5.8 million to the family of an East Providence man, concluding that he underwent surgery for a broken ankle and, as a result of medical malpractice, ended up having his left leg amputated below the knee, lawyers said yesterday.

The $5.8-million verdict marks the second-largest jury award reported to Rhode Island Lawyers Weekly this year, managing editor Jason M. Scally said.

In February, a jury awarded $21.5 million to the family of a Newport woman, concluding that she died after receiving negligent care from an emergency room doctor. That was believed to be the largest medical malpractice verdict in the history of the state. Last year, the largest verdict reported in Rhode Island was $10.49 million.

The $5.8 million was awarded Nov. 20 in a case brought on behalf of William W. “Bill” Layton, a Riverside resident who twisted his ankle at home on Feb. 2, 2001. X-rays showed he’d broken bones in his left ankle, and on Feb. 12, 2001, Dr. Michael Feldman performed surgery on the injury at Roger Williams Medical Center, which did not end up being a defendant in the lawsuit.

Layton’s lawyers, Amato A. “Bud” DeLuca and Miriam Weizenbaum, explained the basis of the lawsuit this way: Layton had diabetes and poor circulation, and he developed blisters as the ankle swelled. So the doctor did the right thing and decided to wait a week before performing the surgery. But then the doctor neglected to look at the ankle before Layton was under anesthesia in the operating room, and when he did examine the area, the doctor saw that the blisters were worse than they had been.

Rather than stopping the surgery and advising Layton of the risks involved, and rather than calling in infectious disease and vascular doctors, Feldman went ahead and performed the surgery.

Afterward, the blisters continued to worsen and a large amount of drainage came from the ankle. Eventually, Layton went to another surgeon, who discovered that his left foot had become gangrenous, and he ended up losing his left leg below the knee on April 12, 2001.

Layton sued Feldman and Orthopedic Group Inc., which has offices in Pawtucket and Attleboro. The suit claimed that the doctor was negligent and failed to get informed consent from Layton before performing the surgery.

On Sept. 5 of this year, Layton died from a heart attack that was unrelated to the surgery, DeLuca said. Layton, 62, was a Navy veteran of the Vietnam War who had retired from government service as a medical administrator for the Veterans Administration Medical Center.

The trial began about a month after Layton’s death. The case was heard before Superior Court Judge Edward C. Clifton.

After 5 1/2 weeks, the jury awarded $4.8 million for the loss of Layton’s leg and his pain and suffering, and it awarded $1 million to his wife, Elaine Layton, for loss of consortium. With interest, the award will total $8.9 million, Weizenbaum said. The award will go to Elaine Layton and her three adult children, DeLuca said.

“We are obviously very pleased with the jury verdict,” DeLuca said. “It was a long, hard case. We are happy for the Laytons. It is unfortunate Mr. Layton is not here and wasn’t able to get his day in court after all this time. But his wife is an incredibly courageous woman.”

The award has not been paid. The defendants can seek a new trial and appeal, and the judge can reduce or overturn the award, DeLuca said.

Defense lawyer Michael G. Sarli said he intends to ask the judge for a new trial, “and we’ll be asking for judgment as a matter of law on some counts.”

“It’s far from over,” Sarli said. While “plaintiffs’ lawyers love the free advertising,” he said, “I don’t think it’s appropriate to comment on the substance of a case while it’s being litigated.”

efitzpat@projo.com