In this Maine Lawyers Review article written by Jo Southard, she talks with Travis Brennan about bringing the first in-person civil trial in Cumberland County to trial and winning a $5 million wrongful death verdict for the client’s family.
“Jury Awards $5 Million in Medical Malpractice Case” article, published, October 20, 2022:
In the first in-person civil trial in Cumberland County since the Covid epidemic began, a jury awarded plaintiff in a medical malpractice claim more than $5 million. Attorney Travis Brennan of Berman Simmons represented Joshua Desjardins in his claim against BlueWater Emergency Partners and Midcoast Hospital.
According to Brennan, on December 26, 2018, when he was 28 years old, Desjardins went to the MidCoast Hospital walk-in clinic after suffering for nine days with what he believed was the flu. The clinic was very busy, Brennan said; in fact, the physician’s assistant who saw Desjardins saw 39 patients that day.
After waiting about three hours, Desjardins was seen by the provider who gave standard flu instructions, even though, Brennan said, Desjardins was showing “hallmark signs” of bacterial pneumonia and sepsis. These were overlooked by the provider. He was told to follow up in 7-10 days if he was not feeling better.
Three days later, Desjardins went to the ER where he was diagnosed with bilateral pneumonia and septic shock. He was taken by Life Flight to Maine Medical Center. Due to the severity of infection in his lungs, at MMC they had trouble giving him oxygen and he was put on life support to breathe for him on December 31. “There’s no question MMC kept him alive,” Brennan said, “but one unfortunate risk is other complications.”
When they put him on life support in the OR his heart stopped twice. Although they were able to resuscitate him, within two days his neurologic function was noted as abnormal. A CT scan revealed he had suffered several strokes in various regions of his brain. He was left with permanent neurological damage. “Although Josh is blessed to have survived, the medical negligence has left him with injuries that he will struggle with for the rest of his life,” Brennan said. He was at MMC for 37 days, 31 of them on life support.
Several witnesses at trial described his ongoing difficulty finding work, as well as problems expressing himself and changes in his personality. Brennan said Desjardins describes himself as having “difficulty with happiness, the way he once could.”
Brennan noted that the case was against BlueWaterLLC and MidCoast. This is because “MidCoast contracts with Bluewater to provide walk in and ER services,” Brennan said. “This is not necessarily clear, they don’t tell patients; nothing distinguishes BlueWater from MidCoast providers or
MidCoast argued that BlueWater was not its agent, “so one thing the jury had to decide was apparent agency,” Brennan said. In addition, the jury found the providers negligent, and their negligence caused plaintiff’s injuries. However, it did find Desjardins comparatively negligent by waiting several days before going to the ER. That finding reduced the original award of $7 million to $5 million.
The jury awarded $1.5 million for medical expenses, $500,000 for past pain, suffering, loss of enjoyment, and emotional distress, $2 million for future pain and suffering, and $3 million for permanent impairment.
The defense also argued, according to Brennan, that plaintiff was offered a chest x-ray at the walk-in clinic but declined. The provider testified she made that offer, but the documentation of Desjardin’s case said there was no indication for imaging. Also, Desjardin’s fiancée had contemporaneous texts that made no reference to an offer of an x-ray, but merely that the provider believed he had the flu. “That argument did not carry the day,” Brennan said.
Christopher Taintor represented BlueWater; Robert Hayes represented MidCoast. MLR was unable to reach either attorney by press time.
In addition to the size of the award, Brennan noted that he was permitted to conduct attorney-directed voir dire. “To my knowledge, ADV has never been permitted in a medical malpractice case,” Brennan said. This was conducted under Rule 47 (a)3(C), which was amended in 2019 to “state more explicitly that, in addition to oral questioning of prospective jurors by the court, the court may allow (i) use of written questionnaires or (ii) direct questioning of prospective jurors by attorneys or unrepresented parties.”
Justice Daniel Billings granted the motion and allotted each side 30 minutes for attorney-directed voir dire. “The process went well and allowed all parties to make cause challenges and better exercise preemptory challenges,” Brennan said. “We appreciate the jurors’ careful attention throughout this two-week medical malpractice trial, as well as their discernment in reaching this important and just verdict,” he added.