The Court's decision ends an 8-year battle between the Methenys and Arkansas Children's insurance company, ProAssurance, consisting of two trials and an almost two-year long appeal.
In 2004 Cody's parents, Pamela and Kenny Metheny, brought him to Arkansas' Children's Hospital to have a lesion on the right side of his brain removed. Prior to surgery, ACH invited reporters from the Arkansas Democrat Gazette to observe the surgery and take photographs. The surgery team, however, failed to perform a pre-procedural "time-out" to verify the correct type of procedure to be performed and that the correct procedure site had been marked.
As a result, the surgery began on the wrong side with significant portions of the left amygdala, parts of the hippocampus and other left hemisphere brain tissue removed.
Once it was acknowledged that the surgery was being performed on the wrong side of Cody's brain, the media was asked to leave the room and surgery began immediately on the right hemisphere of Cody's brain. The Supreme Court wrote that it was undisputed that ACH administrators were immediately made aware of the fact that the procedure had begun on the wrong side of the brain.
Following the surgery, ACH told the Methenys that surgery had started on the wrong side, but that no harm had been done to the left side of Cody's brain.
Soon after being released from ACH, Cody began experiencing cognitive problems. Over the next 15 months his problems continued to progress and the family's lawyer, Phillip Duncan, advised that follow-up MRIs be taken. It was then that the Methenys learned that portions of Cody's brain had in fact been removed from the left side.
In the summer of 2005 the Metheny's filed a direct-action suit against ACH's liability insurance carrier, ProAssurance, asserting that ACH's surgical team removed critical brain tissue from both sides of Cody's brain and despite having knowledge of the two surgeries, never disclosed this information to the Methenys, depriving Cody of critical rehabilitation time. In 2008, after almost two weeks of trial, the Methenys voluntarily dismissed their lawsuit amid allegations of jury misconduct.
The Methenys refiled their case in January of 2009 asking for the court to award costs to take care of Cody's future and past medical expenses. With litigation expenses amounting over $1 million, additional counsel were brought in to litigate against ProAssurance.
A jury trial was held on September 7-24, 2010 with Kansas City attorneys Grant Davis and Tom Jones and Little Rock attorney Phillip Duncan representing the Metheny family against ProAssurance. The jury heard testimony from the top administrators at ACH, the Metheny family and experts on both sides documenting the extent that the surgery had on Cody's life and cognitive ability.
Following the presentation of evidence over three weeks, the jury found in favor of the Methenys and awarded damages of $20 million. The circuit court reduced the jury verdict to $11 million to reflect the amount of ProAssurance's liability coverage for ACH. The Methenys' battle with ProAssurance was far from over as following the circuit court's reduction, ProAssurance appealed the verdict to the Arkansas Supreme Court, arguing that the circuit court was not properly instructed.
Now over two years since the jury's verdict in 2010 and hundreds of pages of briefing and oral argument, the Arkansas Supreme Court brings the Methenys' battle with ProAssurance to an end affirming their victory over the insurance company at trial.
After the Supreme Court issued its opinion, attorney Phillip Duncan commented, "I'm very grateful that Cody will now be able to obtain the care he needs. It has been a long fight over a long time and I'm grateful that justice prevailed. I am hopeful that we can take what we learned from this terrible incident and make something positive out of it by making our hospitals safer and reducing medical mistakes."