Federal jurors awarded a Twin Cities doctor nearly $25 million after an emergency medical provider failed to fly him back to the United States after a ziplining injury in Mexico that led to a leg amputation.
The U.S. District Court jury in St. Paul on Friday found that New Jersey-based Assist America failed to transport Richard H. Tholen, 67, of Plymouth, back from Mazatlán in April 2015, after he complained about care he received from a local hospital for his dislocated knee.
When the emergency medical provider denied his request, the plastic surgeon arranged for his own travel back to the United States. But, his lawsuit alleged, the delay in proper medical attention led to his right leg being amputated from just above the knee about a month later.
After less than six hours of deliberation after a nine-day trial, the jurors awarded Tholen more than $24.8 million, $10 million of that in punitive damages. In a separate action, they awarded Tholen another $3 million from Assist America for breach of contract.
Carla Ferrucci, executive director of the 67-year-old Minnesota Association for Justice, a professional lawyers association, said she cannot recall a heftier award of its kind in Minnesota.
"Minnesota juries don't hand out verdicts like this," Ferrucci said. "The facts in this case had to be egregious, especially with the $10 million in punitive damages."
Ferrucci said the largest award she could remember came in 2017, when a Hennepin County District Court jury awarded more than $20 million to the family of a woman who died from sepsis less than a week after giving birth at Abbott Northwestern Hospital in Minneapolis. At that time, her attorneys called it the largest wrongful-death medical malpractice verdict in Minnesota history.
Tholen's attorney, Patrick Arenz, said after Friday's verdict that "the tragedy that Dr. Tholen suffered did not have to happen. When he called Assist America and asked to be evacuated, they should have honored his request. Had they done so, he would have his leg today."
Attorneys for Assist America have yet to respond Monday to messages seeking comment and whether an appeal is being considered.
In court filings, the company denied "each and every allegation" made by Tholen.
"Any alleged damages suffered ... were caused by the actions of [Tholen] and resulted from [his] own negligence or inaction," read a filing. During closing arguments, defense attorney Robert Romero told jurors that Tholen was a large guy who was racing others on the zipline and who later rejected medical advice to stay in the Mazatlán hospital for another day or two.
Another filing noted that the hospital in Mazatlán, where Tholen was seen, "holds itself out as [having] ... highly qualified specialists [who] graduated from the best universities" and has "surgical and medical equipment of the highest technology and quality."
Assist America also argued that Tholen's amputation may be at least partly attributed to "the negligence, fault or omissions of others over whom [the company] is not responsible and whose conduct [it] had no reason to anticipate."
Tholen, who has had a 34-year career as a plastic surgeon, went to Mazatlán with his wife in April 2015 to celebrate a friend's wedding. While on a zipline outing, he struck his knee against a piece of platform equipment.
The medical treatment he received at a clinic in Mazatlán immediately afterward "was so poor it would have been considered malpractice in the United States," Tholen's lawsuit read.
In his closing argument, Arenz said that cold financial calculations drove Assist America's decision to leave Tholen in Mexico, saying, "They are printing money, ladies and gentlemen: $91 million of profit. And they couldn't send an air ambulance to try and save Dick Tholen's leg?"
The American Medical Association, Tholen's insurer, contracted with Assist America, according to the lawsuit.
Tholen arrived at the clinic in Mazatlán, where his knee was X-rayed. A doctor put the entire leg in a hard cast and the doctor told him "it will be fine by tomorrow."
Tholen went back to the hotel with his wife, a registered nurse, in a taxi as his injured leg hung out the window.
They soon called an orthopedic surgeon in the Twin Cities. He directed Tholen to have the cast removed immediately because it was "not proper care" for his injury, impeding blood flow to his lower leg.
Tholen first contacted Assist America via e-mail the night after he was injured. He briefly described his injury and expressed concerns about the medical attention he had received.
Tholen's wife then called Assist America while in the hospital waiting room, repeated what was said in the e-mail and asked that they be transported back to the United States. Assist America turned down their request twice and directed Richard Tholen to go back to the hospital in Mazatlán for additional treatment.
Assist America assured Tholen that he "was receiving appropriate care."
Two days after the injury, the Tholens boarded a flight back to the United States and immediately saw an orthopedic surgeon.
For several weeks, Tholen "endured multiple surgical procedures and significant pain and suffering in efforts at saving his leg."
His right leg required amputation on May 18, 2015, nearly a month after the knee injury.
"If Assist America had ensured Dr. Tholen received adequate medical care following his injury or evacuated him to the United States for adequate medical treatment, Dr. Tholen's leg likely would have been saved," the suit concluded.
The jury found Assist America negligent, with an award that included $10 million in punitive damages, $10.63 million to Tholen for "all future harm that he is reasonably expected to suffer" and $4.24 million for the suffering that he had already gone through.