Former NASCAR Champ's Widow Awarded $1.9M in Gwinnett Med-Mal Case

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Steven Pickens (left) and David McGee of Mahaffey Pickens Tucker, Lawrenceville, Georgia. (Courtesy photo)[/caption] A Gwinnett County jury awarded a $1.9 million medical malpractice verdict that included $400,000 for loss of consortium to the widow and estate of former race car driver Pete Hamilton, who underwent a botched shoulder surgery.Hamilton was 72 years old when he fell and broke his shoulder Christmas night in 2014, and 75 when he died last year after undergoing a second surgery. The retired NASCAR champion drover for Richard Petty's team and won the Daytona 500 and Taladega 500 in 1970.Lead plaintiffs attorney Steven Pickens said a wrongful death claim was not included and that Hamilton suffered a prior heart attack and had diabetes and kidney disease.Hamilton was “the life of the party” before the accident and boated near his home in Maine and drove to visit family in Georgia every year, Pickens said.“The testimony from his wife and daughter was that he was never the same after that second surgery. He went from being a super-outgoing guy to not even wanting his friends to come see him,” said Pickens, who handled the case with Mahaffey Pickens Tucker associate David McGee.Pickens said the defense rejected an offer to settle the case for $300,000, so he will seek attorney’s fees from that point on under Georgia’s offer of judgment statute. Pickens also said defendant Dr. Michael Kalson’s refusal to admit his error in leaving a surgical device in Hamilton’s shoulder led to complications and the need for another surgery, did not help his case.Daniel Huff and Christian Dennis of Huff, Powell & Bailey “put up a very good defense,” Pickens said. “But their client did not help himself. He continued to insist his surgery was perfect, and the jury just didn’t buy it.”Huff said his side is disappointed with the verdict and is considering all options. Huff did agree the defense had obstacles to overcome.“It was a challenging case to defend with an admitted standard of care violation and a bad outcome for a nice man,” Huff said. “We tried unsuccessfully to resolve the case before and during the trial, including trying to get a high-low in place,” he said.According to court filings and a plaintiff’s account, Hamilton tripped and fell, fracturing his left humerus just below the shoulder joint while on a holiday visit to Georgia.He was taken to Gwinnett Medical Center where Kalson was the on-call trauma surgeon. Deeming the injury a nonemergency, Kalson planned to send Hamilton home with his arm in a sling but decided to admit him and perform an internal shoulder fixation the next day.The procedure involved the use of a plate and screws to stabilize the shoulder and is performed with a plastic drill guide to ensure proper screw placement. The guide is supposed to be removed at the end of the procedure, but Kalson it left in Hamilton’s shoulder.Hamilton complained of excruciating pain, but Kalson said everything looked fine after taking X-rays and 10 days after the surgery.Hamilton and his wife returned to Maine, where he continued to suffer intense pain for two more months. He consulted an orthopedic surgeon there, who X-rayed the shoulder and saw the guide, that two of the screws had partially “backed out” of the bone and that the plate was not properly aligned.Hamilton had undergone heart surgery in mid-2014 and was taking heart medication, so his Maine surgeon had to wait three months until that regimen was complete before performing a partial shoulder replacement.Hamilton suffered a heart attack while he was in the recovery room.His treating cardiologist testified “that his heart attack was caused by the stress” of the second surgery, according to plaintiff’s filings. Hamilton sued Kalson and his practice, Academy Orthopedics, in Gwinnett County State Court in 2016. His wife and executor, Suzy Hamilton, was substituted as plaintiff after Hamilton's death and added a loss of consortium claim. Pickens said the defense never made a “concrete” response to his demand for $300,000 until shortly before trial, when they offered $125,000. During a pretrial conference “they ultimately put up $250,000; our best offer was $390,000.”During a one-week trial before Judge Emily Brantley, Pickens said he introduced testimony by Hamilton’s treating doctors in Maine and Richmond, Virginia. The defense’s key expert was Dr. William Kinnerly of Peachtree Orthopedics. “Our expert said Dr. Kalson violated the standard of care five different ways,” said Pickens, including leaving the guide in Hamilton’s shoulder, then failing to spot and fix it after his follow-up X-ray. “Their defense was, ‘Yes, we left the drill guide in, but it did not cause any harm,' that his shoulder would not have healed anyway, that there was 10 percent failure rate for these surgeries,” Pickens said. “Their expert had to admit that Dr. Kalson had violated the standard of care,” he said, and that, if the mishandled surgery had been caught earlier, “it could have been fixed.”During the trial, the defense floated a $1 million to $200,000 high-low offer, Pickens said. “We countered at $1 million high and $450,000 low, and they didn’t accept it,” he said. Kalon’s professional negligence policy with The Medical Protective Co. carried a $1 million limit, Pickens said.At closing, Pickens said he asked the jury for $1.5 million for the malpractice claim and $300,000 for wife Suzy Hamilton’s loss of consortium. The defense “did not speak to damages,” he said. Pickens said the jury took about four hours to award $1.9 million. In posttrial conversation, Pickens said the jurors “seemed very unhappy with the care Mr. Hamilton had received, and they certainly empathized with everything he and his wife of 47 years had been through as a result of it.” “Dan and Christian did a great job. They had a tough set of facts and a tough client to work with,” he said.Huff likewise said “Pickens and his team did an excellent job on behalf of the plaintiff. Judge Brantley did an exceptional job with the trial.”