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

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.