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Sunday, May 1, 2016

Bozeman found not liable in civil trial

Tuesday, December 14, 2010

A Fulton County Circuit Court jury has ruled that Salem physician, Dr. James Bozeman, is not liable for the 2006 death of a 22-year-old Ash Flat man.

The Dec. 9 verdict ended a two day civil trial in which the family of Joseph Mask accused Bozeman of malpractice.

"I am not saying Dr. Bozeman is a bad fellow, but he made some terrible mistakes and was negligent in the treatment of Joseph Mask," said Batesville Attorney Steve Bell, as he asked jurors to financially punish Bozeman for Mask's death.

"We are all sad Joseph Mask is not here, but that is not the reason we are here," said Little Rock Attorney James Stouffer who represented Bozeman. Stouffer urged jurors to concentrate on the medical record and set emotion aside as they considered the facts in the case.

"Red flags should have put the doctor on notice that this was a lot more than just a stomach bug," said Bell as he questioned a witness. "This was an incredibly sick young man."

Joseph Mask's mother, Rebecca, took him to the Fulton County Hospital on the afternoon of April 14, 2006. Mask had become ill during the night before with abdominal pain and vomiting and his condition had worsened during the day.

Nurses at the hospital questioned Mask about his ailment and took blood for lab work to be done. About two hours later, Dr. Bozeman, who was working the emergency room, questioned Mask and examined him.

Bozeman's diagnosis was that Mask was suffering from "gastroenteritis," a stomach virus. Mask was given a shot of an anti-nausea drug and sent home with prescriptions for suppositories for another anti-nausea medication, medication to control diarrhea and placed on a clear liquid diet. Bozeman instructed Mask to return if his symptoms were not brought under control or his temperature rose.

That night, Mask died at his home after vomiting blood.

An autopsy found that Mask died when an untreated ulcer ate a hole through an intestine wall, releasing toxins into his body.

"Records indicate he (Mask) had significant pain of large proportions starting on the 13th," said Dr. Robert Scott, a Dumas, Ark. physician. "Constant pain is indicative of organic injury...trauma...a perforated ulcer."

After reviewing records in the case, Scott supported the plaintiff's claim that Dr. Bozeman did not take Mask's symptoms seriously enough and failed to order I-Vs and tests which would have identified that Mask was suffering from a life threatening ailment.

The trial centered around one document, the emergency room form showing the oral history, vital signs and lab tests collected by nurses and the oral history Bozeman took from the patient and the physical exam he conducted on April 14, 2006.

"No record of dialog was recorded. He should have charted when the pain started, what type of pain, the level of pain," said Scott. "That was a violation of Standard of Care. I believe, if you didn't write it down, you didn't do it."

The plaintiff's attorney and expert witnesses claimed the sparse notes Bozeman wrote down show he rushed to conclude Mask was suffering from a "stomach bug," rather than make sure Mask's abdominal pain was not caused by a more serious problem.

"I feel it was," Scott replied when asked if Bozeman's failure not to order more tests, give I-V fluid for dehydration and hold the patient for observation was a violation of the Standard of Care doctors are supposed to meet. "I feel they (violations of Standard of Care) were the cause of his death," Scott added.

The expert witness for Bozeman defended his treatment of Mask.

"In my opinion, when the doctor examined (Mask), he had no reason to believe he had perforated an ulcer," said Dr. Alan Jackson of Mountain Home.

Jackson testified that the results of Mask's vital signs, lab tests and Bozeman's physical exam were consistent with his diagnosis of gastroenteritis.

Plaintiff's attorney Bell strongly challenged Jackson's conclusion.

"It was physically impossible for Mask to have a perforated ulcer in the ER?" asked Bell.

"Yes, sir," Jackson replied.

"Sixteen hours later, he is dead from a perforated ulcer," Bell asserted. "What happened doctor? Is that just a coincidence?"

"I am not saying it was a coincidence. I am saying, at the time he was examined by the doctor, he did not have signs and symptoms of perforated ulcer. Some time after, he had a perforation and died," Jackson replied.

The last witness for the defense was Dr. Bozeman.

"Mr. Mask, probably unknown to him or anyone else, had peptic ulcer disease," Bozeman said from the stand.

Bozeman testified that he considered inflammation from an ulcer as a possible cause of Mask's pain. But he explained two tests during the physical exam convinced him an ulcer was not the problem.

"This man had active bowel sounds," Bozeman testified, claiming that he would have heard no bowel sounds, that the bowel would be "paralyzed," had the ulcer eaten a hole in the intestines at the time of the examination.

Bozeman also testified the stomach was not rigid when he touched it and there was no "rebound tenderness" when he "pressed on the abdomen and let go," two signs of a perforated ulcer.

"I did a physical exam on him and assessed all his lab work and notes and it was psysiologically impossible (for Mask to have a perforated viscus)," said Bozeman.

After hearing all of the testimony, Circuit Judge Adam Harkey told jurors "a big tragedy has occurred" and it was their job to decide whether Dr. Bozeman was negligent.

Harkey explained that, if they decided that Bozeman was at fault, they would award damages for the pain and suffering Mask faced, damages for the pain and suffering Mask's family has endured and damages to compensate for the loss of Mask's lifetime earning capacity.

Millions of dollars could have been awarded. As Plaintiff's attorneys rested their case, they offered to settle for $999,000, an offer Bozeman's attorney rejected.

The jury returned its verdict after just an hour of deliberation. Ten jurors found that Bozeman was not negligent. Two voted to hold him responsible for the death. In a civil case, the jury verdict does not have to be unanimous.

After the verdict was read, Dr. Bozeman shook the hands of jurors as they left the courtroom.

"It is a great relief," Bozeman said when asked about the verdict. "You cannot believe the amount of stress someone is under during a trial. I am thankful the truth won out in the end."

Joseph Mask's family and attorneys gathered together to tearfully discuss their disappointment at the verdict.

"We feel for the Mask family," said Bozeman's wife, Gail. "There are no winners in this case, because a young man died."

Bozeman, who sees thousands of patients a year, did not specifically remember treating Mask in 2006 and had to rely on medical records and the procedures he follows with all patients for his testimony in this case.

In 36 years of practicing medicine in Salem, Dr. Bozeman said this was the first medical complaint he had ever received that had gone to trial.

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This is sad--I feel bad for Joseph Mask's mother and family and my heart goes out to them. A good Plaintiff's lawyer would have known how to settle this case. Dr. Bozeman knows he screwed up this case and God knows it. That young man's life was worth something. Dr. Bozeman's money and Little Rock attorney beat out the small-town lawyer.

-- Posted by conventional1 on Wed, Dec 22, 2010, at 10:18 AM

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