By Kylie Mohr
Jackson Hole Daily
Via Wyoming News Exchange
JACKSON — Twelve jurors cleared anesthesiologist Dave Tomlinson of negligence charges after an eight-day trial in Teton County District Court. Jurors deliberated for about 2 1/2 hours before coming to their decision.
The trial wrapped up a day earlier than expected. Before a verdict was reached, Judge Steven Sharpe said in court that it was “extremely well tried by both counsels.”
The verdict fits the trend for medical malpractice cases, which go in favor of the doctor between 80 and 90 percent of the time. It’s rare for a medical malpractice trial to even make it to court. Less than 5 percent go before a jury, as this one did.
Attorneys for plaintiff Jill Lubing argued that Tomlinson, of Grand Anesthesia Group, didn’t follow safety protocols to avoid local anesthetic systemic toxicity and protect her from a mild traumatic brain injury. Tomlinson countered that claim, saying his actions while performing a regional nerve block prior to wrist surgery did not cause her brain damage. Over the course of the trial, attorneys homed in on the 10 to 15 minutes of intense activity around 8:50 a.m. March 20, 2015.
“I disagree with the verdict, but I’ve been a practicing lawyer for over three decades, and I have a lot of respect for the jury system,” said Lubing’s husband, Jim. “I respect their verdict, that they made the decision they thought was appropriate in light of the information they had.”
Tomlinson couldn’t be reached by press time, but reactions to the verdict on social media were supportive of him and his practice.
Emotional testimony and contradicting medical opinions marked the trial, as experts testifying on both sides disputed what “standard of care” Tomlinson had to meet.
That’s important because in a medical malpractice case, the plaintiff’s attorneys have to prove what the accepted medical standard of care was in the case, that it was more likely than not Tomlinson breached his duty by failing to meet those standards, and that the failure to meet the standard of medical care was, once again, more likely than not the cause of injury to Lubing.
Only if the three concepts were proved and agreed upon by the jurors could they have incorporated the nature and extent of Lubing’s injuries to determine a reasonable financial award.
Attorneys on both sides used their closing arguments Thursday morning to bolster their own expert witnesses and discredit those testifying for the other side. One of the plaintiff’s attorneys, Rob Stepans, entreated the jury to focus on documentation made close to the incident and on patient safety, not pity.
“We don’t just create medical records for fun,” Stepans said. “We don’t create them because we don’t have something better to do. Those records capture a moment in time. If we’re left to what people remember 3 1/2 years later when they’re under the gun, if we’re left to consider what their motivations might be once they get into this courtroom because they’re rewriting history, then the search for the truth, then what we hold to be important, it’s all lost.”
He asked the jury to consider approximately $800,000 in damages.
Jeff Brinkerhoff, Tomlinson’s attorney, told the jury that “this has been a case about jumping to the wrong conclusions.” He vocalized the same sentiment during opening arguments last week.
“I told you that if you would be patient and not jump to conclusions, that little by little, witness by witness, medical article by medical article, record by record, expert by expert, here a little, there a little, the facts of what really happened would be revealed,” he said. “And it has been revealed.”