Victim's Family Plans Appeal; Doctor Cleared In Developer's Death

Morning Star - Wilmington, N.C.

Copyright 2000

Friday, May 12, 2000

Local/State

VICTIM'S FAMILY PLANS APPEAL; Doctor cleared in developer's death

AMY E. TURNBULL, Staff Writer


A New Hanover County jury found Wilmington Health Associates and
Dr. William King not negligent Thursday in the death of developer
Thomas Liborio.

Mr. Liborio's estate filed suit after he died in March 1996 from a
procedure Dr. King administered to detect gallstones. The procedure
carries a 3 percent chance of contracting pancreatitis, which is what
Mr. Liborio died from at age 45.

The plaintiffs' lawyers, Wade Byrd of Fayetteville and Sally
Lawing of Greensboro, contended that Mr. Liborio had a pretty
standard case of viral hepatitis, not gallstones, so the test wasn't
warranted in the first place. There was no need for him to have been
subjected to a risk, no matter how small, even if he consented to it,
because he was working from a false premise, they argued.

But the jury, led by a foreman who is a nurse, disagreed, deciding
that it was not negligent of the doctor to administer the test. A
smiling Dr. King stood with his relieved wife after the verdict but
had no comment.

John Martin, one of his attorneys, said simply: "We're happy that
the jury did the right thing."

Mr. Martin told jurors the case was about clinical judgment and
cautioned them not to "Monday morning quarterback" the evidence. Dr.
King didn't have all the facts at his disposal that jurors did in the
courtroom.

Mr. Byrd, surprised by the verdict, said later that he will file
an appeal in the case because he believes Superior Court Judge Allen
Cobb didn't deliver proper instructions to the jury.

Mr. Byrd explained that a patient's consent is voided if it was
obtained by a misrepresentation of a material fact - which he said
happened when Dr. King told Mr. Liborio he had gallstones. But Judge
Cobb didn't tell the jury that, which was a "prejudicial error"
worthy of appeal, Mr. Byrd said.

"For a jury to find that it is all right for a patient to be told
that he has a condition he does not have and for him then to expose
himself to death, and die, when what he was told was false is just
wrong," Mr. Byrd said.

He has 30 days to file motions for an appeal.

Maggie Liborio, Mr. Liborio's wife and administrator of his
estate, was suing for more than $1.4 million for medical expenses,
loss of income and service to his family.

Mr. Liborio owned NESCO International Inc., which developed
government buildings, mostly in other states. When he died, he was
planning a $46 million convention center in Carolina Beach.

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