News and Tribune

Clark County

January 20, 2012

Jury awards $1.5 million in medical malpractice suit

Surgeon deemed liable for New Albany woman’s condition

JEFFERSONVILLE — A Clark County jury awarded $1.5 million to a New Albany woman who claims having surgery earlier would have prevented a permanent debilitating disorder.

Michelle Wells Fischer, 30, has short gut syndrome — caused by the removal of most of her small intestine in 2003. Jurors found her surgeon, Dr. William H. Garner III, liable for her injuries.

Fischer, then a 21-year-old Greater Clark County Schools special education teacher, checked in at Floyd Memorial Hospital and Health Services at noon June 5, 2003, complaining of abdominal pain.

She saw Garner for a surgical consultation. Her attorney, Pete Palmer, said Garner initially thought surgery was necessary and scheduled the procedure for the next day. When he met with her again the next morning, he decided to cancel the surgery based on new information.

“After changing his mind to operate, he then went out of town for the weekend and did not procure any surgical coverage,” Palmer said.

Palmer said Fischer’s condition worsened the next two days to the point doctors worried she would die. Another surgeon was called to the hospital to perform emergency surgery at 2:30 a.m. June 8, 2003.

Fischer had ischemic bowel disease, or dead bowel. Palmer argued Fischer’s entire bowel would not have died if they had performed the surgery as scheduled.

“We argued the standard of care in the medical community says you either need to operate in a timely fashion, or if you don’t believe operating is the best option at a particular time, you need to continue to follow that patient,” Palmer said. “It’s not enough to just say no operation.”

Garner’s Evansville-based attorney, Michele Bryant, said there was no indication surgery would have been performed earlier even if Garner had not left.

“All of her physicians that were caring for her at the time did not think she was exhibiting any signs of anything other than kidney infection,” Bryant said.

Bryant said the physicians did not realize she also had a condition related to a congenital blood clotting disorder which was cutting off blood to and from her bowel.

Bryant said Garner turned Fischer over to a urologist and left for a planned out-of-town event. She said Garner signed up to have another physician cover his patients while he was away.

The case went through the Indiana Malpractice Review System as required by law. An independent group of three doctors reviewed the case and found in Fischer’s favor allowing for the case to proceed to trial.

The lawsuit was filed in Floyd County Circuit Court, but Judge J. Terrence Cody recused himself. Clark County Circuit Court No. 2 Judge Jerry Jacobi was appointed as special judge.

Following a four-day trial in Jacobi’s court last week, a six-person jury returned its verdict after 9 p.m. Friday. Fischer was awarded more than the $1.4 million she requested, but due to a state law limiting the damages allowed in a medical malpractice case, she will receive $1.25 million.

Palmer, who specializes in these types of cases, believes this is the first medical malpractice verdict against a physician or hospital in Clark or Floyd counties since 1999. It is believed to be the second largest amount ever awarded in the two counties for medical malpractice.

Bryant said they have not decided whether to appeal.

“While we respect the jury process and system, we don’t necessarily agree with the result,” Bryant said.

Bryant said Garner’s reputation speaks for itself. His father was also a surgeon, and his brother is the former mayor of New Albany. Garner retired last year after working as a surgeon for Floyd Memorial since the mid-1980s.

“I’m very thankful it’s finally over,” Fischer said. “I didn’t ever expect anything out of it.”

Palmer said the condition has been life-altering for the former runner and cheerleader. Fischer studied to become a surgical technologist, inspired by the surgeons who saved her life, but she was unable to continue. Her medical condition has made it virtually impossible for her to work.

While the average human has about 22 feet of small intestine, Fischer had all but a couple feet removed from her small intestine greatly increasing her metabolism. Food normally passes through the stomach of a healthy adult in six to eight hours, but it only takes 30 minutes for Fischer.

She takes medication every day and is weakened because she cannot get the necessary nutrition from eating. She also deals with severe bloating that she said leads to her daughter asking if she is pregnant.

Fischer has a positive outlook but says she would never have made it without her family’s support. Just hours after her surgery, Dustin Fischer proposed to her from the side of her bed as she lay in the Intensive Care Unit.

The couple later married, and although they were told they would never be able to have a child, they now have a 4-year-old daughter.

“I’ve learned not to take anything for granted,” she said. “I’m thankful for how my life has turned out, but it’s still going to be a long road ahead. We’ll deal with it on a day-to-day basis.”

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