$25 million verdict after colonoscopy death exceeds $500,000 settlement offer

CVN screenshot of plaintiff's attorney Sean Claggett showing a computer-aided replication of the proceedings during his closing argument

Portland, Oregon – An Oregon jury on Friday returned a verdict of about $25 million in a medical malpractice trial in which staff at an outpatient surgical facility were accused of failing to respond to a patient's declining vital signs during a routine colonoscopy. The entire trial was recorded from start to finish by Courtroom View Network.

The Multnomah County jury returned its verdict a day after hearing closing arguments in the trial, which began July 31. The family of the deceased, Ericc Gilbert, claimed Portland Clinic staff botched their resuscitation attempts after he suffered respiratory arrest during the procedure. But the clinic's attorneys argued that sole blame lay with an anesthesiologist who recused himself from the trial and surrendered his license over the incident.

Attorney Sean Claggett of Claggett & Sykes, who represented the plaintiffs, told CVN after the trial that the jury's award far exceeded the clinic's highest settlement offer of $500,000 and its ultimate insurance claim of $3 million. The entire trial, including all witness testimony, is available for unlimited on-demand viewing as part of a CVN video library subscriptionalong with hundreds of other civil lawsuits across the United States.

The jury found anesthesiologist David Stellway 60 percent at fault and the Portland Clinic 40 percent, while also acquitting Young Choi, the gastroenterologist who performed the colonoscopy, of any personal responsibility for Gilbert's death. This reduces the recoverable portion of the judgment to about $10 million, although that amount could be further reduced by a $500,000 cap on wrongful death in Oregon, which is currently being challenged as unconstitutional.

Claggett argued to jurors during the trial that Gilbert's weight and sleep apnea should have resulted in his colonoscopy being performed in a hospital, and that Dr. Choi should have stopped the procedure immediately after Gilbert stopped breathing and Dr. Stellway began placing the patient in a resuscitator to provide artificial ventilation.

According to Claggett, an alarm was not raised until a surgical technician realized the seriousness of the situation and called a nearby emergency team. By that time, however, Gilbert had already suffered irreversible brain damage and several days later, the ventilator was turned off. The clinic's lawyers claimed that Choi specifically asked Stellman if he should continue with the procedure and reasonably relied on the anesthesiologist's advice when he was advised to proceed.

Claggett told CVN that the jury's verdict was largely influenced by its reaction to testimony, including from defense experts, that showed the hospital was unprepared to provide emergency resuscitation.

“The key testimony was from the defense's experts, who admitted that there was no emergency response training at the Portland Clinic,” Claggett said. “We were able to prove our case through their experts. We were surprised by the defense's strategy of calling so many experts, as each of their experts accused us of violating the defendants' standard of care.”

A lawyer for the clinic did not respond to a request for comment from CVN.

Claggett explained that while the hospital's strategy was based on placing the blame solely on Dr. Stellway, his pre-trial focus groups suggested otherwise. Claggett systematized these into a data-driven process he calls “Jury Ball,” which he describes in a recent book of the same name.

“We knew they would never get there because the jury ball data told us the anesthesiologist would take an average of 57 percent of liability (at trial, they took 60 percent),” Claggett said. “Our goal was to stay within the range of the jury ball data, which was within 3 percent of predicted liability. There is no doubt that our clients' decision to settle with the anesthesiologist created a large empty chair, but not one that we could not overcome.”

Claggett noted that the overall verdict was no surprise even to his team.

“This verdict was predicted by the data we analyzed at the jury ball,” he said. “When the verdict was announced, I was not the least bit surprised because our actual jury did almost exactly what our data predicted. Trials and juries are so predictable that we are rarely surprised by a jury verdict.”

Claggett expressed hope that the ruling would send a message to health care workers that they must be prepared for emergency resuscitation in all situations where general anesthesia is administered.

“Outpatient surgery centers are becoming more and more common in today's medicine,” he said. “We hope all surgery centers take note of this ruling and improve their emergency care team training. The Portland Clinic is the textbook example of systemic failure in American medicine. We sincerely hope they change their business practices.”

Claggett's team also included David Creasy, Geordan Logan, Marc Johnston and Aaron Tillman of Claggett & Sykes.

The clinic (insured by The Doctors Company) was represented by Lewis Brisbois.

The case is titled The Estate of Erric Edward Gilbert v. Portland Clinic, etc. Case number 21CV18955.

Email David Siegel at [email protected]