CHI St. Alexius Health

In a case involving a woman who was disabled due to a surgery at CHI St. Alexius Health, South Central Judicial District Judge Cynthia Feland denied a motion from the hospital to reduce a jury’s verdict.

A judge has found a North Dakota law limiting damages in medical malpractice cases to be unconstitutional.

In a case involving a woman who was disabled due to a surgery at CHI St. Alexius Health, South Central Judicial District Judge Cynthia Feland denied a motion from the hospital to reduce a jury’s verdict.

A jury last April awarded Chenille Condon, 35, of Fort Yates, $3.5 million after finding cardiac and thoracic surgeon Dr. Allen Michael Booth negligently performed a surgery on Condon that caused a serious stroke in 2012.

The jury decided Condon deserved $2 million for economic losses, such as medical expenses and lost earnings, and $1.5 million for noneconomic damages, including pain, suffering, physical impairment and emotional distress.

The hospital sought to reduce the award for nonecomonic damages by $1 million under a state law that limits such damages to $500,000.

Feland ruled the 1995 law is unconstitutional, violating equal protection guaranteed by the North Dakota constitution by arbitrarily reducing damages for people who suffer the most severe injuries.

“It was a courageous decision by Judge Feland and the correct one,” Condon’s attorney, Tom Conlin, said Tuesday. “It’s a victory for the people of the state and for our constitution.”

Feland analyzed the legislative record of the law, approved in 1995 and discussed by lawmakers again in 2009, and found the law to be based on assumptions and speculation rather than evidence. The record provided no explanation about how the $500,000 figure was chosen or how it would accomplish the Legislature’s health care reform goals of increasing access, controlling costs and maintaining or increasing quality, Feland wrote.

Conlin said the $500,000 cap on noneconomic damages lets negligent doctors off the hook in cases where they are found to be responsible for causing great harm.

“The greater the harm caused by the negligent doctor, the greater the discount,” Conlin said. “The cap fell hardest on stay-at-home moms, the young and those who couldn't prove large economic loss.”

Condon suffered a stroke in 2012 after Booth accidentally cut the main artery supplying blood to her brain during a lymph node biopsy. The stroke left her with limited use of her left arm, virtually no use of her left hand and she walks with a limp, Conlin said. The effects of the brain injury are expected to worsen over time.

The injury also caused her to fall behind in school, where she had been a nutrition student at United Tribes Technical College. Despite the stroke, she completed her program, becoming the first in her family to obtain any college degree, and hopes to get a four-year degree as a dietician.

CHI St. Alexius Health issued this statement Tuesday when asked for comment: “Our legal team is reviewing the ruling. While we respect the court and its ruling, we will be exploring our legal options in response,” the statement read. “Out of respect for all involved, we will not be making further comment at this time.”

Conlin said he anticipates the hospital’s next step will be to request a new trial. Condon has received none of the money awarded by the jury, he said.

“They first wanted a discount off the verdict,” he said. “Now, they're going to attempt to have the verdict thrown out.”

It’s unknown if the state of North Dakota, which was added as a defendant in the case, will appeal. The state was given the opportunity to submit written arguments on the constitutional challenge of the state law, but declined, Feland wrote.

Liz Brocker, spokeswoman for the Attorney General’s Office, declined to comment.

“This office does not comment on whether we might make a particular decision at some future time,” Brocker said.

Courtney Koebele, executive director for the North Dakota Medical Association, said the association was still reviewing the ruling and didn’t have a comment on Tuesday.

(Reach Amy Dalrymple at 701-250-8267 or Amy.Dalrymple@bismarcktribune.com)

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