Omaha Medical Malpractice Lawyers

$4 Million Verdict Cut to Meet Cap

$4 million jury verdict in the case of a man who died of colorectal cancer after treatment at an Omaha clinic.

by Todd Cooper, World-Herald Staff Writer
September 15, 2007

A jury handed down one of the largest medical malpractice verdicts in Douglas County history this week: hitting Methodist Physicians Clinic and a doctor with a $4 million [verdict] for their treatment of a man who died of colorectal cancer. The jury [compensated] the family of Paul Hustig: including his widow, Phyllis: $4 million after a week-long trial this week and last.

However, Douglas County District Judge J. Patrick Mullen reduced the [compensation] amount Friday to $1.25 million. The move complies with the state cap on medical malpractice awards that was in place at the time of Hustig's treatment.

Patrick and Joseph Cullan, attorneys for the Hustigs, argued that the cap is unconstitutional and didn't apply in this case. They are considering an appeal, saying the cap is fundamentally unfair to people who suffer damages at the hands of doctors.

Joseph Cullan said Paul Hustig's family, including two daughters and two sons, hope the substantial verdict causes Methodist Physicians Clinic to more aggressively perform biopsies and remove polyps.

Hustig's family had filed a lawsuit against Physicians Clinic and Hustig's treating physician, Dr. Michael J. Domalakes, in 2002. They contended that a polyp found in 1991 and not removed by Domalakes became cancerous and ultimately killed Hustig.

Dr. David Filipi, vice president of medical affairs for Methodist Physicians Clinic, said treatment has come a long way since 1991, when Hustig first was treated for the polyp. Then, Filipi said, doctors were more likely to monitor polyps. He noted that most polyps do not become cancerous, though the risk increases with age and time for certain polyps.

Now, Filipi said, doctors perform far more colonoscopies on patients with risk factors such as Hustig's: which included a family history of colon cancer. The process involves inserting a device into the rectum to locate polyps, and then perform biopsies of them.

"There's been kind of a revolution in how you treat polyps," Filipi said.

That said, Filipi and Joseph Daly, an attorney for the doctor and Physicians Clinic, said there was nothing wrong with how Domalakes treated Hustig. Over the subsequent 10 years, Daly said, the doctor searched for the polyp found in 1991: and couldn't find it. He and other doctors believed that the polyp may have dislodged and ended up in Hustig's stool.

Daly said his clients are considering an appeal.

"For 14 years, all Dr. Domalakes cared about was Mr. Hustig's health and well-being," Daly said. "He ran multiple tests over multiple years. He sent him to other doctors. He didn't do anything wrong."

The Cullans and the jury disagreed.

According to the Cullans and the lawsuit:

Hustig's family had a history of colon cancer. Both his parents died of the disease, his mother at age 54. That prompted Hustig to begin seeing a doctor at Physicians Clinic in his 40s, specifically to screen for colon cancer. The Omaha man, who worked for more than 30 years for the Metropolitan Utilities District, wanted to be proactive and preventive, Joseph Cullan said.

In July 1991, Domalakes found a polyp in Hustig's colon but chose to monitor the polyp rather than remove it. From July 1991 until January 2001, Physicians Clinic personnel used ultrasound and a proctoscope: a device with a light that is inserted into the rectum: to monitor the polyp. Daly, the doctor's attorney, said the polyp could not be found.

On Jan. 3, 2001, doctors found a 2.5 cm tumor on Hustig's rectum. Two weeks later, they discovered it was cancerous.

On Aug. 1, 2001, Hustig died.

The Cullans argued that the polyp should have been removed in 1991. Though only 2 percent of a certain type of polyp become cancerous, several medical groups note that the risk of cancer increases as those polyps age and grow.

Joseph Cullan said Phyllis Hustig wants doctors to learn from this and to more aggressively treat the disease.

"This is such a good family," he said. "Mrs. Hustig's first comment after the [verdict] was 'I hope this will never again happen to someone else.'"

The record for a medical malpractice verdict in Douglas County came in 1999, when a jury [compensated] a Valley couple $5.6 million for brain injuries suffered by their child during the wife's pregnancy. A Douglas County district judge reduced that [verdict] to $1.25 million to comply with the cap.

Mullen noted Friday that the Nebraska Supreme Court has long upheld the constitutionality of the cap, which now stands at $1.75 million. The Legislature passed the cap as a way of limiting doctors' exposure and to control malpractice insurance costs.

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