Patient left legally blind in 2013 hasn't gotten a dime of $21M malpractice award. Here's why
BOWLING GREEN, Ky. ― It was supposed to be a routine procedure ― an elective hernia surgery. And Alice Duff was scheduled to be released from the hospital the next day.
But something went terribly wrong that day in 2013. A surgeon employed by Graves Gilbert Clinic improperly stitched her bowel, eventually causing it to leak toxins into her bloodstream, poisoning her body and building up the pressure in her eyes so high it detached her retinas, said her lawyer, Chad Gardner.
Duff, 75, a retired Bowling Green, Kentucky, secretary, spent most of the next eight months in the hospital, undergoing 11 corrective surgeries, including five on her eyes.
When she got out, she was legally blind. In an interview, she said she can't drive, and she can't cook, for fear of burning herself.
She and her husband, Dean Duff, sued Graves Gilbert, for medical malpractice.
The clinic contested the allegation and the cause of her complications, said John Tate, one of its attorneys. But a jury in July 2022 returned a whopping verdict for the couple totaling $21.3 million, including $12 million for her suffering and $8 million for Dean, a retired public works employee, for loss of her consortium and for having to give up his fledgling second career as a funeral director, so he can care for her full time.
"I depend on him for everything," Alice Duff said ― "him and the Lord."
But that was not the end of the story.
Despite taking in $200 million in revenues last year, the clinic, which employs 200 physicians in 30 specialties, in December filed for Chapter 11 bankruptcy reorganization, which froze collection of the verdict.
Though the clinic announced it was keeping its doors open, an executive said it needed “breathing room” to “continue providing the care that our region has come to expect and depend on.”
Tate said in an email it had no choice but to file to "meet its ethical obligations to its patients ― it treated 1 million of them in each of the last two years — and to pay its more than 1,000 employees."
Tate said the “nuclear verdict” created financial stress that threatened its obligations to the community.
But the bankruptcy filings show just before filing the petition in December, it had paid an average of nearly $1 million each in compensation to its eight officers and directors, all of whom are physicians.
The clinic, which has erected new buildings across Bowling Green in recent years, reports making only $151,000 in profits last year.
Clinic turned down $5 million settlement offer
After local news outlets reported the for-profit entity had turned down an offer from the Duffs to settle for the limits on its insurance coverage ― $5 million ― some local residents denounced the company on social media.
“So much for integrity, ethics, and the prioritization of patients,” Stephanie Simpson Morris, a community college instructor, wrote on the Bowling Green Daily News Facebook page.
Another woman called the clinic’s conduct “absolutely disgusting,” while a man said it was “truly terrible.”
Citing court rules, Tate, a Louisville lawyer, declined to discuss the clinic’s settlement negotiations.
In his emailed response, Tate called the posts from readers “unrepresentative” and said since the filing, the clinic had received “much support and encouragement” from patients and the public.
Indeed, some posters praised the care they had received and one said it was “sad” to see a “community icon” have to take bankruptcy.
Founded in 1937 by two doctors, it now has more than 200 specialists, from allergists to urologists. It is, in effect, a giant group practice owned by its doctors. It is so dominant in local health care that Warren Circuit Judge Steve Wilson, who presided over the Duffs' trial, had his gall bladder removed shortly after it ended by one of the surgeons who treated Alice Duff.
The clinic has appealed the verdict, and Tate said it expects to prevail.
By filing for bankruptcy, it avoided having to pay for an appeal bond, which would cover the verdict if it loses on appeal. The filing also halted the accumulation of interest on the judgment.
“Graves Gilbert Clinic’s choice to file bankruptcy was unnecessary and avoidable,” Gardner said in a statement after the filing. “It results from poor decision-making and rejected opportunities to make right what was taken from the Duffs.”
The couple could be in for a long wait: The average Chapter 11 takes 17 months before creditors are paid, and a complex case can take five years to resolve, according to Debt.org and other sources.
The trial was delayed so long ― nine years ― because of the recusal of the initial judge and later because of the pandemic.
Under Chapter 11, a business asks a bankruptcy judge to let it restructure its debts with its creditors, so it can stay in business.
10 to 25 cents on the dollar
Chapter 11 bankruptcies may be filed after a large court judgment, but only if the judgment puts a company's survivability at risk.
Former Bankruptcy Judge Bruce Markell, a law professor at Northwestern University, said creditors like the Duffs generally collect between 10 and 25 cents on the dollar when plans are approved by the court.
Debtors don’t have to prove they are insolvent to get relief, but they must show they are filing Chapter 11 in “good faith” ― meaning they legitimately could not pay their debts and are in distress. If they are not, a judge may dismiss their petition, according to the American Bankruptcy Institute, the nation’s largest association of bankruptcy professionals.
The clinic lists total liabilities of $146.3 million and assets of $57.3 million, but Gardner said he will try to prove the clinic exaggerated the former and undercounted the latter.
The clinic’s filings show it paid eight officers and directors an average of $983,074 each last year. The highest paid, at about $1.1 million each, were Dr. Kirk Fee, a vice president and an orthopedic surgeon, and Dr. Rob Wesley, the corporate secretary and a family physician.
“We are not saying the doctors were overpaid,” Gardner said. “We just want Alice and Dean Duff to be paid too.”
'Beyond the pale of reasonable compensation'
Graves Gilbert issued two statements to try to justify its filing, but the first seemed to dig it deeper in the hole. Addressed to its staff but quickly made public, it offered no apology to the Duffs or any acknowledgement of wrongdoing.
It said it made the “difficult but necessary” decision to file for reorganization under the protection of the bankruptcy code, in part, because “for whatever reason, during the pandemic years juries have become far more inclined to return what the legal community calls ‘nuclear verdicts.’’’
But that hasn’t been true, at least in Kentucky. The Kentucky Trial Court Review, which tracks civil trial verdicts, said there were three nuclear verdicts ― defined as those of $10 million or more ― in the two years before the pandemic was declared and four in the two years after.
The statement said the decision “in no way reflects any fundamental financial problems with the clinic’s routine operations.”
In its second statement, Graves Gilbert tried to put on a friendlier face.
“We are not some faceless, multibillion dollar corporation that came to town to make a quick buck,” it said. “We are a group of physicians who love south-central Kentucky and the patients we are privileged to serve every day.”
It also offers an apology, of sorts. Though physicians usually save lives, it said, “There are unfortunate cases where the outcomes are markedly different from what the patient and physician desire. In this case, we extend our deepest sympathies for the pain the Duff family suffered due to extraordinary medical complications.”
But it said the damages the jury awarded to the Duff were “beyond the pale of reasonable compensation.”
In its appeal, the clinic says Gardner improperly "inflamed" jurors’ passions and broke the rules by asking them how much they would need to be paid to take a job that entailed the injuries Duff endured.
Jury took just 45 minutes to issue its verdict
In an interview, Gardner said the clinic’s lawyers did not object during his summation and thus forfeited the right to make that argument now.
He also noted the jury deliberated only 45 minutes before delivering a verdict. And he said the jury ― which included a firefighter, an IBM executive and even a Graves Gilbert employee ― represented a cross-section of the community.
He said the size of the verdict reflected the fact that Graves Gilbert doctors refused to scan Duff’s abdomen despite her husband’s desperate pleas to do so, as her condition continued to worsen in the 10 days after surgery. Her potentially fatal injury was only discovered when Dean Duff by chance saw her internist, Dr. Pravin Avula, in the hallway, flagged him down and got him to order a CT scan of her abdomen.
“Dr. Avula saved her life,” Gardner said.
The couple says they are not angry with the clinic, or its decision to seek bankruptcy protection.
But Dean Duff said the clinic "should have respected the jury's verdict," which he said was fair, considering what they went through "and are still going through."
Alice Duff said she still has pain in her midsection, and has to close her eyes when riding in a car at night because the headlights from other cars are so painful.
"I feel like all my freedom has been taken away, and I will never get it back till the Lord comes and takes me away," she said.
During a visit in mid-February, the only sign of the bankruptcy filing at Gilbert Graves' main clinic was a sign, literally, in the lobby and a restroom. It said: “BUSINESS AS USUAL.”
“Your doctors, nurses and the entire staff of Graves Gilbert Clinic are committed to providing the highest quality care during our business reorganization,” it said.
“THANK YOU FOR YOUR TRUST.”