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Loss of leg leads man to seek retribution

In one of the many malpractice suits filed each year, a jury must decide if an amputation was preventable or just a "bad result."

TAMPA - Dr. Ben Mendoza walked into Cliff Cheatwood's room at St. Joseph's Hospital and examined his pale right leg.

Twenty-four hours earlier, the Tampa cardiologist had inserted a thin tube called a catheter into Cheatwood's heart to diagnose the cause of a heart attack.

Now, the 76-year-old patient was complaining about severe pain and cramps in his right foot. It was ice cold and appeared to have no pulse.

Mendoza wrote out orders for a painkiller, a Doppler test to confirm there was no blood flow and a consultation with Cheatwood's vascular surgeon. He told a nurse to handle the orders "stat," medical shorthand for immediately.

Or he didn't.

Whether Dr. Mendoza said that single word, "stat," became a matter of dispute after Cheatwood's leg had to be amputated. And it became one of the dominant issues, at least among the quarreling attorneys, in a malpractice case tried last month in Tampa.

Hundreds of Floridians file suit each year against medical caregivers for errors real or imagined, foreseeable or not. Most cases end up withdrawn, tossed out by a judge or settled privately out of court.

But much of the current debate over malpractice insurance draws on the few cases that go to trial. Are juries capable of understanding complex medical and legal issues? Do they issue multimillion-dollar verdicts because they feel sorry for the patients? How often do they side with the caregivers?

The Florida Legislature will debate such questions beginning today in a four-day special session on the soaring cost of medical malpractice insurance and whether to limit jury awards for pain and suffering.

Few people outside the medical or legal professions and the patients who file suit have seen a malpractice trial from start to finish, however. Cheatwood vs. Mendoza and St. Joseph's Hospital offered a box-seat view.

"Does everybody understand that this case is about money?"

Michael Minkin, Mendoza's lawyer, does not mince words.

Not even when his target is an elderly man whose leg has been amputated above the knee. Not even when that man, Cliff Cheatwood, is a former chief judge of the courthouse where this trial is being held.

A panel of 30 prospective jurors will spend six hours this day in Courtroom 7 of the Hillsborough County Courthouse, answering lawyers' questions about their work, family, education and beliefs. At day's end, the lawyers and Judge Vivian Corvo Maye will cull six jurors and two alternates from the group.

But not before the attorneys draw first blood. Jury questioning, or voir dire, is not only about guessing how each panelist might vote but shaping their opinions for the trial ahead.

Heads nod when Minkin, a 57-year-old Philadelphia native, asks if anyone has heard the phrase "runaway jury." If a person loses a leg, he asks, must it always be someone's fault?

Glenn Waddell, Cheatwood's lawyer, counters that money will have to be a proxy for justice in this case. "You can't restore someone's leg," the 70-year-old Lakeland native says with a twang. Proposals by Florida lawmakers to cap damages are "arbitrary" and "artificial."

At 4:20 p.m., the potential jurors are sent out of the courtroom. Maye and the attorneys work their way through the panel, agreeing on a jury of four women and two men ranging in age from their 20s to 40s. Among them are a wedding photographer, an insurance agent and a legal secretary.

The undisputed facts of the case are laid out in the opening statements.

On June 23, 2001, a Saturday, Cliff Cheatwood was enjoying a cookout at a neighbor's home when he began to feel pain in his chest. He was rushed to St. Joseph's Hospital, short of breath and sweating profusely, probable signs of a heart attack.

On June 24, a doctor at the hospital ordered a cardiac catheterization. The procedure, which requires a surgeon to place a tube into a patient's artery and slide it up to the heart, helps identify the cause of a heart attack and can aid treatment. Mendoza, on call at the time, was assigned to perform it.

Mendoza sat down with Cheatwood and his wife, Deane, to compile a detailed medical history. He decided to insert the catheter through Cheatwood's femoral artery, located in the groin. Despite the presence of grafts and possibly scar tissue from previous surgeries, Mendoza concluded that approach would be safest and easiest. He operated on the morning of June 25.

Twenty-four hours later, his pager went off: Something was very wrong with Cheatwood's right leg. Mendoza examined the patient. He wrote out several orders, including one for a consultation with Cheatwood's vascular surgeon, Dr. George James.

James never got the message. Eight hours later, a physician doing routine rounds entered Cheatwood's room, saw the condition of his right leg, and asked James, who was in surgery, to come by right away.

James arrived minutes later and concluded he was too late. The leg, as Cheat-wood later put it, was nearly "rotted." It was removed in August.

That's where the consensus ends and the disputes begin:

Was Cheatwood hollering in pain for much of the 24 hours after surgery, as his family claims? Was the hospital staff negligent in not paging Mendoza sooner?

Was Mendoza wrong to insert the catheter through Cheatwood's groin? Did the Cheatwoods warn Mendoza to avoid the femoral artery, citing earlier advice from James? Should Mendoza have gone in through the brachial artery, located at the crease of the arm?

By afternoon, Mendoza, the first witness, takes the stand to face questions from Cheatwood's attorney about his written order for a consultation with James.

Waddell: "You never wrote the word "stat,' or you never wrote the words "right away,' or you never wrote the word "immediately' on there at that time or later, did you?"

Mendoza: "It was not written but told."

Waddell: "But told to who?"

Mendoza: "The nurse."

Waddell: "You told her to get it done right away?"

Mendoza: "Yes, sir."

But some of the most aggressive questioning of Mendoza comes from Roland Lamb, co-counsel for St. Joseph's Hospital, Mendoza's co-defendant.

If Cheatwood's leg was in such dire condition, Lamb asks, why didn't Mendoza check back later to see if his order for a Doppler test had been carried out?

"You expect that if there's an abnormality that you need to be called," Mendoza responds. "You cannot babysit and call all the time to see if it's been done."

The room is silent as attorney Waddell pushes his client's wheelchair across the blue-carpeted courtroom to an open spot in front of the jury box.

Cheatwood is angry: furious that his right leg was amputated above the knee, enraged by his diminished quality of life and the burden on his wife.

"She has to do everything for me," he says slowly, his voice breaking. "These defendants have changed her from my wife to my slave."

The retired judge's health was shaky even before the events of June 2001. A former smoker, he has peripheral vascular disease (poor blood circulation to the feet and legs), diabetes and hypertension. He has suffered a subdural hematoma (blood clot in the brain) and an abdominal aortic aneurysm (a bulge in a vessel supplying blood to the organs) and has had multiple vascular surgeries dating back to 1974.

Throughout the trial, Minkin reminds the jury of Cheatwood's medical history. Perhaps poor health and advanced age, not a doctor's error, cost him his right leg.

But Cheatwood recalls a robust life of driving to meet friends, conducting mediations, even playing football with his grandchildren. "I could do anything I want," he says. That is, he adds, until the "arrogant" Mendoza entered the scene.

As Cheatwood speaks, his daughters and son-in-law cry. The jurors do not.

Querubin "Ben" Mendoza shares his own bitter tale. A native of the Philippines who became a U.S. citizen and Army doctor, the 42-year-old father of two says he performs more than 200 cardiac catheterizations a year. Now he has to sit and listen as his integrity and professionalism are savaged.

"All my life I strived to help ... prevent lives from being lost," he says. And yet, "here I am."

Doctors don't like to testify against each other, but James, Cheatwood's long-time vascular surgeon, testifies that the catheterization and the eight-hour delay in treatment cost Cheatwood a leg. Lamb, the hospital's attorney, counters that James' assistant may have caused the delay by failing to relay the message.

Michael Shahnasahian, a psychologist hired as an expert witness by the plaintiffs, says Cheatwood's rehabilitation will be costly. He needs treatment for depression, a hospital bed and new wheelchair, four hours of caregiver help a day and $40,000 in home renovations to accommodate his disability.

Minkin's cross-examination of Shahnasahian is right out of the attorney handbook: ridicule the witness' credentials, scoff at his calculations, ask how much he was paid to consult and testify. The answer: $4,500.

Doctors and malpractice insurers portray plaintiffs' lawyers as ravenous opportunists who are driving the cost of medical care skyward.

Cheatwood's legal team doesn't look the part. Waddell sits with a paralegal and Deane Cheatwood. Fitted with hearing aids, Waddell sometimes doesn't recognize that Judge Maye is addressing him, and she must repeat herself.

By contrast, the defense side of the courtroom looks like the boardroom of a corporate law firm. There's Minkin, tall and confident in a crisp suit, and co-counsel James Wetzel; Roland and Kelly Jo Lamb, the married couple representing St. Joseph's; and Paula Slusher, who manages the hospital's catheterization lab. During breaks, Minkin frequently confers with Pam Copley, a senior claims specialist at ProAssurance Corp., Mendoza's malpractice insurer and the company paying for his defense.

The jurors never learn about Copley's behind-the-scenes role. Nor do they learn other revealing details.

One is that Mendoza is a defendant in a pending malpractice suit in Seminole County, also involving a cardiac catheterization. Nor is the jury told that Cheatwood is back in the hospital, that his lawyer rebuffed St. Joseph's pretrial settlement offer of $25,000 as "grossly inadequate," or that the hospital and Minkin rejected a counteroffer.

On this day, Deane Cheatwood takes the stand, testifying that her husband was in agony for much of the 24 hours after his surgery the morning of June 25. If so, Minkin asks, why did she leave the hospital at 7 p.m., returning only at 10 a.m. the following day? Because, she says angrily, she expected the nurses to contact Mendoza for help.

"It was their job," she says. "Why should I do it?"

It's a day of dueling cardiologists, two out-of-towners hired as expert witnesses.

Waddell has hired Joel Kahn, a Michigan resident who says he graduated at the top of his medical school class and has published more than 100 medical articles.

Kahn, who's being paid $500 an hour, says Mendoza should have known better than to begin Cheatwood's catheterization at the femoral artery, given the many prior surgeries and grafts at that spot. The nurses should have contacted Mendoza sooner after the surgery. The eight-hour delay in contacting vascular surgeon James? It caused "irreversible damage."

Minkin's choice is Barry Alter, a South Florida physician who says he has performed between 16,000 and 17,000 cardiac catheterizations.

Alter, who's being paid $750 an hour, says if there is a good pulse at the femoral artery, scarring and grafts are "not a major problem." How about the "stat" issue? Failing to write the word on an order is not wrong, Alter says. And it was the nurses' responsibility to keep Mendoza posted about the status of any orders and Cheatwood's condition. If doctors can't delegate, patient care will suffer.

In a comment that seems to undermine Mendoza, Alter can't resist noting that none of his patients have ever lost a leg.

At 9:30 a.m., Waddell and Minkin rest their cases. The hospital's attorneys call their lone witness.

Yvonne Hulley is a Tampa Bay area nurse and legal consultant. She says her review of staff notes and depositions shows Cheatwood was mostly comfortable after surgery. She adds that the nursing staff was not at fault for handling Mendoza's orders less than aggressively, given that he did not write "stat" on the orders.

The Lambs rest their case at 11:40 a.m. Maye tells the jury to return the next morning to hear final arguments and begin deliberations.

After some legal maneuvering, the lawyers begin reviewing a draft of the verdict form, the document the jury will fill out to record its decision.

Maye spots a problem.

The space for penciling in damages, she says, is too small.

Was the amputation of Cheatwood's right leg a "preventable catastrophe," or merely a "bad result"?

Waddell's closing argument to the jury focuses on money. Jurors "can't put the leg back on," he says. "Judge Cheatwood, well, he really has no life now." He recommends that the jury award $2.75-million to Cheatwood for pain and suffering, and an additional $1.5-million to Deane Cheatwood, who is a co-plaintiff.

"You may feel these are not enough," Waddell adds.

Minkin portrays Cheatwood as an ingrate, a very sick man who owes his life to medical science yet sues when his health takes an unexpected turn.

As for the 24 hours of agony Cheatwood supposedly experienced after surgery, Minkin shifts blame. "Either the nurses don't know how to assess pain," he says, "or Mr. and Mrs. Cheatwood's recollection is faulty."

Hospital attorney Lamb says Cheatwood and his family must have invented the story about his day of pain. But it is equally clear that Mendoza made up the story about the oral "stat" order, he says, and the nurses' detailed records prove it.

At noon, Maye sends the jurors off to deliberate while they eat cold cuts and cookies. Lawyers, staff and family wait tensely inside the courtroom, the quiet occasionally interrupted by laughter from the jury room. Insurance representative Copley's leg bounces rapidly, to the annoyance of Cheatwood's daughter Susan.

"Now we just wait for the knock on the door," Kelly Jo Lamb says.

The wait isn't long. At 2:06 p.m., the bailiff walks into the room. "We have a verdict," he announces. The jurors follow, chatting and laughing among themselves.

At 2:09, the verdict is read: The jury finds no negligence on the part of defendants Mendoza or St. Joseph's Hospital.

Mendoza and his legal team smile broadly, trading handshakes. The Cheatwood family exits the room briskly, sullenly. They make no eye contact with others in the courtroom.

The legal maneuvering is not over in the case of Cheatwood vs. Mendoza and St. Joseph's Hospital.

Lamb and Minkin have asked the court to make the plaintiffs pay their legal costs. Waddell has asked for a new trial, arguing that Maye gave the jury erroneous advice and that the jury showed a "callous disregard for the seriousness of the issues" by laughing during deliberations. A hearing is scheduled for next month.

The outcome of the case is not that unusual locally.

Maye, 44, has presided over three other malpractice trials during her two years on the civil court. Plaintiffs lost all three. Roland Lamb, the hospital's co-counsel, says he has lost fewer than 10 of the more than 100 malpractice suits that he has argued and that have gone all the way to a verdict. Mendoza's insurer, ProAssurance, has won defense verdicts in 29 of 36 malpractice suits so far this year in Florida.

Those who participated in this trial try to explain the outcome.

Lamb says the jury heard "experts on both sides of the issues, and I think the tie goes to the health care provider." Minkin, Mendoza's attorney, adds, "If the jury believes that the doctor's explanation of what he did was reasonable under the circumstances, they'll find for the doctor."

Waddell, Cheatwood's attorney, says "it's just a terrible time to try" a malpractice case in Florida because potential jurors have been brainwashed by industry "propaganda" about huge awards. He says the relatively young jurors also may have found it hard to relate to the elderly plaintiff.

Hilary Hopkins, the only juror willing to be interviewed, says testimony on the supposedly pivotal "stat" issue was so contradictory that she considered it almost irrelevant.

She calls Cheatwood's loss of a leg tragic. "It kind of frightens me that a person would come into a hospital and have five people caring for him and those five not really communicating well about him."

Still, Hopkins says, Mendoza struck her as "professional" and "empathetic," and she doubts the hospital's nurses would have ignored Cheatwood if he were in agony.

"We couldn't say it was the responsibility of any one party."

- Times researcher Kitty Bennett contributed to this report. Scott Barancik can be reached at barancik@sptimes.com or 727 893-8751.