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$800K Jury Verdict Upheld for Failure to Diagnosis “Charcot Foot”

Elizabeth DiNardo, Esq. | Associate Counsel

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On October 4, 2019, the Nebraska Supreme Court upheld an $800,000 jury verdict over doctors’ failure to diagnose a foot condition, holding that the questions examined by jurors did not move into the territory of asking them to walk a mile in the plaintiff’s shoes.

In November 2012, plaintiff Ricky Anderson presented at the University of Nebraska Medical Center (UNMC) for a red, swollen right foot. Two UNMC physicians, Elisabeth Backer M.D. and Gregory Babbe M.D., provided medical care for Anderson and diagnosed him with cellulitis. After ten days, Backer and Babbe released the plaintiff without performing an x-ray on the effected foot.

Anderson’s condition worsened and in January 2013, he consulted a podiatrist who diagnosed him with “Charcot foot.” The podiatrist went on to confirm that had the physicians taken an x-ray in November 2012, the plaintiff would have avoided significant deterioration.

Anderson and his wife filed suit against the UNMC physicians for medical malpractice and the jury awarded an $800,000 verdict. On appeal, the defendants focused their argument on the plaintiffs’ attorney’s questions to the jury during voir dire. Plaintiffs’ counsel began by asking the jury how important their physical health is - such as their ability to walk or climb stairs. The objection at the time and the contention on appeal by defendants was that counsel was improperly, “trying to put the jurors in the position of the party,” or a “Golden Rule” argument.

However, on appeal the high court found no merit to the defendants’ line of thinking, reasoning that the jurors:

“Were not asked to place themselves in Anderson’s situation or asked how much they would want to be awarded if so placed. While the discussion during voir dire may have been heading in an improper direction, it did not reach the point of stating, ‘Put yourself in the plaintiff’s place.’”

Also in the appeal, justices denied defendants’ contention that the Andersons failed to prove that there was a breach of care. At trial, however, the judge pointed out that there were no direct questions to plaintiffs’ experts about the standard of care, but found it was acceptable, given that the substance of the testimony indicated the belief that a breach existed.

The case is Rickey Anderson et al. v. Gregory Babbe et al., case number S-18-847, in the Nebraska Supreme Court.

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