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In reversal, judge orders Rosner to pay plaintiff $500k

The family of a patient who sued neurosurgeon Michael Rosner for damages could end up getting a lot more than the $1 a Henderson County jury awarded last fall.

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In a stunning reversal in favor of the plaintiff, Superior Court Judge Zoro Guice last week filed a new order that rejected the jury's decision to eliminate any payment for pain and suffering and restored the amount to $512,161 — the original figure that the jury had reduced to $1.
After a six-week trial, the jury found that Rosner, who practices at Park Ridge hospital, had committed negligence in his treatment of Pam Justus, a patient who received two surgeries from the doctor in 2000 and 2001. After the second surgery, Justus refused to return to Rosner's office. Suffering chronic pain and problems that she associated with his surgeries, she sought treatment from numerous doctors until her death in September 2012 at age 58. Pam Justus and her husband, Billy Bruce Justus, filed a medical malpractice lawsuit against Rosner in June 2003 for damages she suffered after operations on the base of her neck.
Calling the award of $1 "manifestly inadequate," Judge Guice said that the jury was improperly misled by Dr. Rosner's argument that she failed to follow up by visiting him again.
"The testimony by Dr. Rosner's neurological experts suggesting that Mrs. Justus had a duty to return to Dr. Rosner was inaccurate and misleading," Guice said. The theme, repeated by four different experts, was that Justus had "an obligation to return specifically to Dr. Rosner and that, by failing to do so, she allowed her condition to worsen." To the contrary, the judge said, Justus's to get treatment from other neurosurgeons were "reasonable and all that could be expected." The "cumulative impact of misleading testimony from multiple experts" influenced the jury to eliminate the award for damages. The decision scrapped any payment for pain and suffering "despite uncontroverted evidence that Mrs. Justus experienced severe pain and suffering."
After a five-day conference to hammer out details of the jury instructions, Judge Guice, the plaintiff and three defendants agreed on the separate 14 issues the verdict form would contain. One of the 14 points said jurors could lower the amount of damages if they found that Pam Justus had failed to avoid or minimize her medical problems. In his order, Guice said that he had "committed prejudicial error" by submitting that question to the jury.

No duty to go back to Rosner
Wade Byrd, the Fayetteville trial lawyer who represents 33 other patients with pending malpractice cases against Dr. Rosner, applauded the ruling.
"It's one thing to accuse a patient of failing to follow up — and of course our position was she did follow up," he said. Judge Guice "was saying that the defense evidence was that she failed to follow up with Dr. Rosner and the judge recognized that she had no duty to follow up with the man who screwed her up in the first place.
"She might have had a duty to follow up with her care, which we contend that she did," he said. "The judge simply said that he felt like it was a mistake to charge the jury on failure to mitigate when the only evidence from the defense was that she failed to follow up with Rosner."
After the verdict in favor of the plaintiff on the core issue of malpractice last September, Byrd said he was stunned that the jury had then eliminated any imposition of damages to compensate her husband.
"Obviously we think the judge made the correct ruling in this order and we're very gratified that he did so," Byrd said.
Guice also ordered Rosner to pay $175,547 in plaintiff's costs.
In its verdict last year the jury cleared Park Ridge Health and its corporate parent, Adventist Health Systems, of any responsibility for Rosner's actions. Guice granted their motion to force Justus to pay $136,800 of their costs.
Neither Rosner nor his attorney, Scott Stevenson of Charlotte, responded to requests from the Hendersonville Lightning for comment.

Room for confusion
Mike Easley, the former governor who worked at no cost on the trial team of Byrd, a longtime friend, said the issue of mitigation can be confusing to juries.
"What you do in a mitigation charge is you are essentially telling the jury to offset something," he said. "The way it comes out, it sounds like an excuse for them to interpret that they're supposed to offset."
Easley, who served eight years as North Carolina's attorney general before serving two terms as governor, said Guice's action is not that unusual.
"If the result is awkward ... then they will generally make some correction," he said. "You see that a lot of times when an award is reduced or a verdict is set aside as being against the greater weight of the evidence. ... This is one where Judge Guice had significant misgivings before he gave the instruction. The court has an opportunity to correct it because if not it could be appealed by either side. If the court feels it's given an instruction they shouldn't have given then they'd rather correct it at the trial level than the attorneys have to go through an
appellate process."
Despite the fight over money, "the outcome's the same" as the day the jury came back, he added. "The jury found the doctor was engaging in experimentation on human subjects regardless of what the ultimate award is. That's the most important part of it."
The part of the order applying 8 percent a year interest to the $512,600 award for 11 years could more double the total.
Byrd said he has no plans for further appeals in Justus v. Rosner. He said he did not know whether Rosner and his
attorneys will.
"I'd say that's up to them," he said. "There are 33 more of these cases pending and that's something they've really got to think about."