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Jury overrules panel, awards malpractice verdict in son's death

New Hampshire Union Leader

June 12. 2013 9:02PM

MANCHESTER — A Hillsborough County jury issued a $1.5 medical malpractice verdict in a medical malpractice case last week, disregarding the findings of a special panel that had earlier sided with the cardiologist being sued, according to the lawyer who brought the case.

The verdict was the first time that a jury snubbed the unanimous decision of a medical malpractice panel, said Joseph McDowell, the Manchester lawyer who brought the case against Dr. Alan Gartska and his practice, NH Cardiology Consultants.

The practice was sued by the parents of William Landry Jr., a healthy, 36-year-old Manchester factory worker who suffered two fainting spells in April and September 2004. He visited the cardiac practice, which is now Elliot Cardiovascular Consultants, three times and they did not perform the proper tests, McDowell said.

"They told him there was nothing wrong with him from a cardiac point of view," McDowell said.

Landry died in June 2005.

New Hampshire Chief Medical Examiner Thomas Andrew testified that he found a lesion on Landry's heart during an autopsy, McDowell said. Andrew said Landry probably developed heart disease in September 2004, McDowell said.

Medical malpractice panels started hearing malpractice claims in 2007. A retired judge, physician and lawyer hear the case in secret and without formal courtroom procedures. The panel decision is non-binding, but is designed to encourage the two sides to settle.

The law says that juries can hear about the panel's decision if it is unanimous.

"I really don't know," McDowell said when asked why the jury went against the panel's decision in the Landry case. He said the jury trial involved more witnesses; the evidence had not been completely gathered when the panel heard the case in 2009.

A telephone call left for Gartska's lawyer, Michael Pignatelli of Nashua, was not returned.

Malpractice panels

The malpractice panels are favored by insurance companies and the health care industry. They were opposed by personal-injury lawyers, who see them as an additional, expensive step before a case goes to trial.

"This case clearly proves the panel system doesn't take away a person's day in court," said Dr. Travis Harker, president of the New Hampshire Medical Society. "It clearly shows they can have their day in court and win."

He said the malpractice panel law went into effect in 2005; the first case was heard in 2007.

Harker said the most recent available data for New Hampshire — up to September 2012 — show that malpractice panels heard 213 cases. Of those, 163 resulted in unanimous decisions, 112 in favor of the doctor or hospital.

No settlement offered

Harker said most practitioner errors are innocent mistakes. Patients deserve to get compensated in a timely fashion, but a wait of five to seven years hurts them and the physician, he said.

"Doctors want to do the right thing, and they want to help their patients," he said.

McDowell said Gartska's lawyer never offered a settlement, especially not after the malpractice panel decision. It took four years to bring the case to a jury after the malpractice panel decision.

"I didn't say much," McDowell said about his remarks to the jury about the panel decision. "I told them up front that under the constitution, my clients were entitled to a jury trial."

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