Bigger Judgment Sought in Arkansas Brain Surgery Lawsuit

LITTLE ROCK — An insurer for Arkansas Children's Hospital argued Thursday for a new trial over $11 million that was awarded to a Mabelvale couple whose son underwent surgery on the wrong side of his brain, while the family argued that the award should be restored to $20 million.

Other parties in the case, including the doctor who performed the surgery, have settled out of court. But the family of Cody Metheny, who was operated on in 2004 at age 15 for a brain lesion, took the hospital's insurer to trial in 2010.

The jury awarded $20 million to Kenny and Pam Metheny and their son, but the judgment was reduced to $11 million because that was the maximum coverage under the policy by Proassurance Indemnity Co.

The insurance company appealed and argued Thursday that it should have been able to present evidence that doctors involved in the surgery should have shared the blame.

"You cannot find Arkansas Children's Hospital negligent for the doctors," Proassurance attorney David Ellington told justices.

Metheny family attorney Grant L. Davis argued that the law didn't allow people who weren't defendants to be brought into the case.

"If you decide you're going to allow nonparties in a case that would give defendants an incentive to bring in anyone. That would bring chaos," Davis argued.

Cody Metheny underwent a procedure in 2004 to remove faulty brain tissue believed to be the source of a seizure disorder. During the operation, the surgeon removed matter from the wrong side of Cody's brain before operating on the correct side, according to court records, which have since been sealed due to Cody's age.

Cody lives in a brain rehabilitation center. His parents were at the hearing.

"He has his moments from day to day," Kenny Metheny said before trying to suppress tears. "I'll never have my Cody that I before the surgery. Basically, they took my son away from me."

Attorney Phillip J. Duncan, also representing the Methenys, said the family's cross appeal seeks restoration of the $20 million judgment.

Duncan said the insurance coverage should top out at $22 million because 15 months passed before the Methenys were informed of the scope of the wrong-side surgery. That would cover two periods of insurance coverage, and he wants the high court to rule that the surgery and the 15 months in which Cody could have been given rehabilitative services count as two separate injuries.

After the oral arguments were completed, the high court went into recess until Jan. 10, after which it will rule.

The hospital said in a statement after the trial that it regretted what happened to Cody. Arkansas Children's Hospital, a nonprofit, wasn't named as a defendant, only its insurer.

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