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Welch v. Epstein7/31/2000
Appeal From Aiken County William P. Keesley, Circuit Court Judge
Heard June 5, 2000
AFFIRMED
This is a medical malpractice case arising out of the death of Marshall O. Welch, Jr. The jury awarded actual damages of $28,535.88 in the survival suit, $3,000,000 in the wrongful death claim, and punitive damages of $3,900,000. After the verdict, the judge issued an order entering a partial set-off against the verdicts based upon a settlement with a prior defendant. Cross appeals have been filed. Dr. Franklin Epstein and Southern Neurologic Institute (hereafter, collectively referred to as Dr. Epstein) raise issues concerning (1) the denial of their motions for directed verdict and judgment notwithstanding the verdict (JNOV); (2) the denial of their new trial motion based upon the excessiveness of the actual and punitive damages verdicts; and (3) the jury charge on punitive damages. The personal representative, Kimberly Johnson Welch, challenges the set-off order. We affirm.
FACTS/PROCEDURAL BACKGROUND
Marshall O. Welch, Jr. (Welch) was a thirty-seven year old registered nurse employed by Southern Neurologic Institute. He worked for Dr. Franklin Epstein, a board certified neurosurgeon, who practiced at Southern Neurologic Institute along with Dr. Martin Greenberg. Welch assisted Dr. Epstein for almost three years in the care of surgical patients.
Welch suffered from severe back pain, which began between 1990 and 1992. Dr. Epstein characterized it as an "unrelenting backache." According to Dr. Epstein, Welch initially went to Dr. Greenberg about the problem because "being a stoic, didn't want to let on to me directly that he was needing something."
In June or July of 1995, Welch was taking a significant amount of prescribed pain medication, including Tylox and Vicodin. Welch might also have been using sample pain medication from the drug cabinet at Southern Neurologic Institute. Even with this medication, the pain was very severe. Dr. Greenberg stated he did not know how Welch continued to work. During the latter part of 1995, Welch's pain worsened. Dr. Greenberg recommended surgery. Welch consulted Dr. Melvyn Haas, a neurologist, for a second opinion in February of 1996. Dr. Haas agreed surgery was indicated.
The surgery involved a neurological and an orthopedic component. The orthopedic procedure would result in blood loss. Dr. Epstein declared Welch was adamant he did not want a transfusion unless there was no alternative. As a result, a cell saver was used during the surgery to "save [Welch] from getting donor blood by using own blood." A cell saver is a machine which processes blood lost from a patient during surgery. The plasma and platelets are washed out and the packed red cells are returned for use in the patient.
On the morning of Thursday, February 22, 1996, Welch was admitted to the Aiken Regional Medical Center. At admission, his blood pressure was 126 over 72; temperature was 97.4; pulse was 71; and respiration was 18. His pre-operative hemoglobin was 14.4 and hematocrit was 42. Hemoglobin is a pigment within a red blood cell that carries the oxygen molecule. Hematocrit refers to the percentage of total blood volume that consists of red blood cells. Welch's estimated blood volume was 5,852 cc's.
Dr. Epstein was the attending neurosurgeon assisted by Dr. Greenberg. There is no issue concerning Dr. Epstein's performance of the neurosurgery. Henry Holsenback, a registered nurse anesthetist, administered the anesthesia to Welch and monitored his vital signs. Welch received approximately 2,500 cc's of fluid and 625 cc's of blood cells from the cell saver. Holsenback estimat
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