January 18, 2019
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Millinocket couple’s medical malpractice lawsuit goes to jury

BANGOR, Maine — A jury began deliberating shortly before 4 p.m. Tuesday over who bears responsibility for the heart damage a Millinocket man suffered when a local hospital failed to send blood test results to his doctor.

John Pierce, 71, and his wife, Clara Pierce, 63, sued St. Joseph Hospital, his physician, Dr. Edward Dunstan, and Millinocket Regional Hospital, where the doctor is employed, in 2012 in Penobscot County Superior Court.

The civil trial began Jan. 19 at the Penobscot Judicial Center before Superior Court Justice William Anderson.

The couple claim the results of a blood test ordered the night of May 31, 2010, when John Pierce visited St. Joseph Hospital’s emergency room, were never sent to Dunstan, and that in spite of Pierce’s continued complaints, the doctor never asked for them. Eight months later, Pierce underwent emergency heart surgery at Eastern Maine Medical Center to repair damage that could have been avoided if treatment had begun when the test was completed.

The hospital admitted it made a mistake.

In his closing statement Tuesday, the Pierces’ attorney, Benjamin Gideon of Portland, told the jury that the couple’s damages totaled between $3 million and $3.7 million. That included $293,867 in medical expenses to which all parties agreed.

The rest of the damages were for the pain and suffering Pierce endured:

— During the eight months he gradually became sicker; between $125,000 and $150,000.

— During the 24 days he was hospitalized for surgery; between $150,000 and $250,000.

— Over the past five years, which included a few complications as a result of the surgery; between $350,000 and $500,000.

— In the future; between $500,000 and $750,000.

Gideon also urged jurors to award Pierce $1.395 million for permanent impairment because of the untreated infection and to award $375,000 to Clara Pierce for loss of consortium.

“Between $3 [million] and $3.7 million is a full compensation verdict,” Gideon told jurors. “This infection and surgery didn’t change anything in particular in the lives of John and Clara Pierce. It changed everything in their lives.”

St. Joseph Hospital attorney James Martemucci of Portland told the jury last week in his opening statement, “We made a mistake [in not sending the test results to John Pierce’s doctor.]”

He told jurors that changes had been made to avoid what happened to Pierce from happening to another patient. Hospital staff now not only send test results to the offices of primary care physicians but also call doctors’ offices with results, Martemucci said.

Pierce testified Thursday that he remembered a nurse calling him the day after his emergency room visit but not what was said. The nurse’s note of the conversation showed that she told him the test result was positive and that it was a very serious condition. She urged Pierce to return to the hospital, but he refused.

“Did Mr. Pierce bear a certain level of responsibility to come back to the hospital when she called him on June 1, [2010], and told him to?” Martemucci asked jurors.

Dunstan’s note from Pierce’s visit on June 4, 2010, indicated that Pierce told him the blood tests were negative, Mark Lavoie, the Portland attorney representing the doctor and the Millinocket hospital said Tuesday in his closing argument.

“When you don’t have a positive blood culture, this is a very difficult diagnosis,” he said. “In August [2010], he went looking for cancer.

“If there’s one thing you come away from this trial with, it is that Dr. Dunstan is someone who really cares about his patients,” Lavoie said. “In hindsight, he realized he was wrong [not to ask for the results].”

Pierce, who appeared in the courtroom for the first time Thursday, told the jury his symptoms began nearly six years ago in the spring. During direct examination, Pierce told his lawyer he felt like he had the flu with a low-grade fever and extreme fatigue.

“I would feel good in the morning and at 3 [p.m.], I’d start feeling bad and go to bed,” he said. “Sometimes, I’d get up for supper and, other times, I’d sleep until morning.”

He said that while he still can do most things he could do before he became ill, “it’s a struggle.”

The jury of five women and four men must decide whether it is more likely than not that each defendant was negligent in treating Pierce and that the negligence damaged him. It also must decide the amount of damages to award but not how much each defendant would have to pay. That would be up to the parties and judge to determine.


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