January 7, 2003 - Lawyers for Durham, N.C., Hospital Argue Against $48 Million Malpractice Claim

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Jan. 7--DURHAM, N.C.-- In a case said to be the first of its kind in North Carolina, Duke University Hospital lawyers contended Monday that two parents should not be allowed to make millions of dollars from the plight of their daughter, now on life support following surgery that allegedly went wrong.

Tina Mollison, 27 when her lawsuit was filed last year, suffered brain damage and is now in a "vegetative state" as a result of complications following surgery for kidney cancer in July 2001.

Her parents and their attorney say they should receive $48 million for their daughter's pain and suffering and for ongoing medical expenses over her projected lifespan of 50 more years.

But Durham lawyer Charles Holton, representing Duke, told a judge Monday that Mollison's parents are unfairly and illegally attempting to profit from their daughter's medical tragedy. She left instructions that she did not want her life sustained by life support if she suffered brain damage, Holton said. Also, Duke's attorney argued, Mollison doesn't suffer pain and suffering in her current condition.

Lawyer Henry Frye, a former chief justice of the N.C. Supreme Court who represents the Mollisons, said Monday that Duke failed to properly monitor their daughter after the surgery.

"The operation was, I guess, perfect," said Frye. "What happened was that after the operation, Tina was unconscious and nobody was watching the monitors. That's what occurred."

Frye also said that Tina's parents, as her legal guardians, should be permitted to make decisions about life support.

Superior Court Judge J.B. Allen took the opposing arguments under consideration and indicated he will rule later. Even if he threw out the Mollisons' claim for damages related to pain and suffering and future medical expenses, an allegation of negligence against Duke would remain alive. Duke has denied any negligence in connection with the surgery.

Tina Mollison now is in a nursing home. Her parents live in Laurinburg.

Mollison wanted to "die with dignity, a natural death without interference," and her wishes should be followed, Duke's lawyer argued Monday.

Four days before surgery in July 2001, Tina Mollison signed a document indicating she did not want to be placed on life support if she became brain-damaged as a result of the operation, Holton contended.

"I demand that the instructions set forth in this document be followed," Holton quoted Mollison as writing.

Her parents are overriding her wishes and demanding life support so they can make more money from a lawsuit against Duke, Holton charged.

It is against North Carolina public policy to override a patient's written wishes in such circumstances, the attorney argued. It also interferes with a patient's constitutional right to refuse extreme life-sustaining medical treatment, Holton said.

In addition, he contended the Mollisons are not due any money for pain and suffering because Tina is incapable of experiencing pain in her condition.

She "languishes in a persistent vegetative state with irreparable brain damage," the defense lawyer said. "Her condition will not improve. Those facts, I believe, are undisputed. ...

"It is not our purpose today to say life support should be removed," Holton added. "We're simply saying [Tina's parents] should not be allowed to profit or benefit from overriding her expressly stated wishes."

Holton and other lawyers said the case is the first of its kind in North Carolina.

"This case will be very significant to the jurisprudence of our state because of the huge life-and-death issues that are involved," said Holton.

Holton said the brain damage occurred when Tina suffered respiratory difficulties and cardiac arrest after coming out of anesthesia.

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