Congratulations to Cody Dishon and the team at the Ferguson Law Group for securing a phenomenal $57.9 million verdict on behalf of their injured client. Dishon used lessons and inspiration from Nick Rowley to achieve this verdict.
Photo Courtesy of Ferguson Law Group.
Case Facts:
- Case: Ricky Do v. Baptist Hospitals of Southeast Texas, E-207079
- Description: Medical Malpractice
- Filing Date: Feb. 5, 2021
- Verdict Date: Sept. 27, 2024
- Court: Jefferson County, Texas
- Plaintiff Attorneys: Cody Dishon and Javier Cabanillas (of counsel), The Ferguson Law Firm, Beaumont TX.
The Story
Shortly before midnight on Aug. 13, 2019, 33-year-old Kiet "Ricky" Tuan Do, an able-bodied man, admitted himself to an emergency clinic in Port Arthur, Texas, complaining of severe shoulder, neck and back pain. Do worked in a local refinery and was in good health before waking up that morning with excruciating pain. During his clinic visit, Do's legs collapsed; the treating physician ordered an emergency CT scan of his cervical spine and brain. The results came back normal.
The doctor diagnosed Do with rhabdomyolysis, a medical condition arising from strenuous activity, occurring when muscle tissue breaks down and releases its contents into the blood. Do was immediately transferred to Baptist Hospital in Beaumont for a full neurological workup at 3:30 AM.
Baptist Hospital records described Do's symptoms as "moderate," contrary to the “excruciating pain” noted by the nurses at the first facility. Hospital staff delayed necessary medical care for several hours, during which Do’s condition worsened.
They finally performed an MRI at 7 PM that evening, more than 20 hours after Do had initially received emergency medical care. It would be another five hours before that MRI was reviewed, at which point it revealed a large extradural mass and bleeding on his cervical spine. Do was life-flighted to St. Luke's Hospital in Houston around 5 AM on Aug. 14, where a neurosurgeon performed an emergency operation.
As a result of this delay in treatment, Do became permanently paralyzed.
The Case for Medical Malpractice
Both Beaumont Hospital and the treating doctor were named defendants in the lawsuit, filed February 5, 2021. Cody Dishon, lead counsel for the plaintiff and ownership partner at the Ferguson Law Firm, argued that timely intervention would have prevented his client’s permanent paralysis.
"While at Baptist Hospital, the doctors, staff and nurses completely failed to perform their job and committed medical malpractice," the complaint alleged. Among the breaches in duty of care: hospital staff performed no immediate neurological assessments, did no monitoring of the patient, failed to perform a timely MRI, and did not follow up with the physician responsible for Do's care. Furthermore, the Beaumont Hospital doctor placed a "regular" MRI order when a "STAT" order would have been appropriate.
Texas is famously hostile toward medical malpractice cases; with a hard cap at $250,000 for noneconomic damages, few lawyers bring med mal cases to trial. Medical malpractice cases also require the hiring of medical experts, whose testimony can be prohibitively expensive.
Economic damages are not capped, however, and this provided the necessary motivation to push the case to trial. The plaintiff worked at a refinery making a strong income: this was his “dream job,” according to testimony. Given the plaintiff’s young age, health and career path, his loss of earning capacity was a significant sum.
Taking on the Risk of Trial
The two-week trial included testimony from twenty-three witnesses, twenty of whom were called by the plaintiff. Witnesses included the treating ER doctor and radiologist, as well as three neurosurgeons, an economist, a vocational expert, a life care planner, two internal medicine physicians, three nurses,a nursing expert, and a corporate representative for the hospital. The plaintiff, his wife, and his two brothers also testified.
Given the number of expert witnesses, Cody’s file expenses far exceeded the $250,000 damages cap. “Our law firm took on a major risk,” he explains. “Even when you have the huge economic damages, the statistics show that it's really hard to win medical malpractice cases in general, particularly in Texas.”
The Verdict
The Texas jury found Baptist Hospital 90% at fault, the other named defendant 5% at fault, and a doctor who was no longer part of the lawsuit as 5% at fault. They awarded $59.7 million to Do.
- Future medical expenses: $9.7 million
- Loss of past and future earning capacity: $4.9 million
- Past and future pain: $16 million
- Past and future mental anguish: $16.8 million
- Past and future physical impairment: $12.5 million
- TOTAL: $59.7 Million
“You have to be able to tell a story that the jury can follow, and the story has to be consistent,” explains Cody. “You have to build credibility with the jury to get a great verdict. In this case, I had faith in the jury, and the jury did the right thing.”
Trial Guides Titles in Action
“How you learn as a trial lawyer is by learning from other great trial lawyers,” says Cody, a devoted Trial Guides reader. “Trial Guides has a unique platform in that, from anywhere in the country, you can pick up on what other successful trial lawyers are doing, and achieve great success.”
A long-time Nick Rowley fan, Cody drew from Running with the Bulls, Trial by Human, and Voir Dire and Opening Statement for reaching this outstanding outcome. “[Rowley] focuses on the human damages: the human aspects of the case,” he says. “The lessons he shares are invaluable for any practitioner.”
Running with the Bulls by Nicholas Rowley and Courtney Rowley is available in paperback and ebook.
Though he has been practicing law since 2012, this was Cody’s first medical malpractice case; state restrictions on noneconomic damages deter most trial lawyers from pursuing these cases. In this case, Cody knew the plaintiff personally, and believed in the case wholeheartedly.
Trial by Human by Nicholas Rowley & Steven Halteman, is available in paperback and ebook.
Cody appreciates how Rowley has taken on medical malpractice cases in tough venues. “For those who are in the trenches, handling hard cases in tough venues, Rowley brings the kind of motivation you need,” he says.
Voir Dire and Opening Statement by Nick Rowley, Courtney Rowley, and Wendy Saxon is available in paperback and ebook.
Dishon’s Next Steps: Challenging Precedent and Changing the Law
Since the success of this trial, Cody has turned his attention to formally challenging the $250,000 damages cap in Texas. “If I hadn’t brought this case, it’d be like it never had happened,” he says. “[The Plaintiff] wants to make sure that other medical malpractice victims in Texas have a voice in the courtroom; he's very passionate about it, and so am I. We’re going to use this case to challenge damages caps in the courts as what they are: unconstitutional, both on state and federal grounds.”
Read More about Cody Dishon here.
Related Titles from Trial Guides:
Defeating Damage Caps: The New Model for Wrongful Death Damages by Thomas J. Dickerson (On Demand CLE)
The Medical Malpractice Trial by Michael Koskoff & Sean McElligott
Polarizing the Case: Exposing & Defeating the Malingering Myth by Rick Friedman