Supreme Court asked to reinstate malpractice suit

Wednesday, Jan. 19, 2005 | 9:39 a.m.

SUN CAPITAL BUREAU

CARSON CITY -- An attorney for the survivors of a 52-year-old woman who died after surgery to cure her obesity asked the Nevada Supreme Court on Tuesday to reinstate a lawsuit against two Las Vegas physicians.

A District Court jury found that Dr. Mathias Fobi and Dr. William Schofield were not guilty of medical malpractice in the case of Bonnie Robertson, who died in February 1995 less than two years after having a stomach-shrinking operation.

The suit said that after the surgery to reduce the size of her stomach to a tablespoon and a half, Robertson died from malnutrition.

Steven Day, attorney for Patricia Wendland, who is executor of Robertson's estate, argued that District Judge Mark Denton should not have allowed into evidence the findings of a medical screening panel.

Day said the screening panel found it had no jurisdiction over Fobi, who was licensed in California at the time the operation was performed in Bellflower, Calif. The panel also found there was no malpractice on the part of Schofield, who participated in the after-care of Robertson.

Day also argued that attorneys for the two doctors made improper remarks at the trial and that the judge should have allowed into evidence a pre-trial deposition of Fobi that was critical of Schofield.

But John Cotton, Schofield's attorney, said Denton was correct in refusing to permit Fobi's pre-trial statement. He said the deposition was hearsay and Schofield was not present when the statements were made in California.

During the 30-minute hearing Tuesday, Justice Bill Maupin criticized Cotton for his statement at trial about how easy it was to get a medical expert. Cotton was quoted by Maupin as saying you can get experts by slowing down while driving your car passed UCLA and handing out $5,000.

Maupin, who called the comment a "piece of cynicism that never should have been uttered in a courtroom," said he had grave concern about such statements.

Cotton admitted the statement may have been improper but noted no objection was made at the trial.

Patricia Daehnke, Fobi's attorney, said the lawyers for the survivors had waived their right to object to the introduction of the results of a screening panel. She said the panel found in favor of Fobi.

In the former Nevada law, a malpractice suit had to be presented to a medical screening panel to screen out cases with no merit before they went to trial.

The suit was originally filed in California but then moved to Nevada when Schofield was included as a defendant.

Attorneys for the doctors said two medical screening panels and a jury all reached the same conclusion that there was no malpractice.

Fobi is now licensed in Nevada, and his Fobi Pouch was approved in 1991 by the National Institutes of Health.

The court took the arguments under submission and will rule later.

Fobi is credited with inventing the Fobi pouch, a device to help overweight people.