$4.5 Million Awarded in Amputation Case : Lawsuit: But lawyers may appeal and delay collection unless the plaintiff accepts a smaller settlement.

A jury has awarded $4.5 million to Dennis Brewster, a former pro football player whose leg had to be amputated after a failed operation to implant an artificial knee, but it may be awhile before he sees any of it. Defense lawyers have threatened to appeal unless Brewster accepts a reduced settlement. A Superior Court jury in Santa Monica late last week found Brewster’s former doctors at UCLA Medical Center and Howmedica Inc. of New Jersey liable for the medical bills, pain and suffering and lost wages of Brewster, a podiatrist who lives in Arcadia.

The doctors, orthopedic surgeons Eric Johnson and Michael Tooke, had planned in a 1986 operation to implant a Howmedica-manufactured knee that was supposedly custom-designed for the 350-pound former lineman. Once the operation was under way, however, they determined that the knee was not a good fit. They interrupted the operation for about an hour while a substitute knee was found and then implanted it.

Brewster’s attorney, Kevin McLean, contended that infection set in during the delay, and that the follow-up care was inadequate. Over the next 3 1/2 years, Brewster underwent dozens of operations before his leg was amputated early this year, and he has had 16 operations since then to treat the continuing infection.

Brewster played intermittently for the Chicago Bears and Los Angeles Rams in the 1960s before sustaining a career-ending knee injury. He became a podiatrist and built up a practice in Arcadia but stopped working in December. He said he is unable to work because he might pass along his infection to a patient.

It took the jury 12 days of deliberations to reach its verdict. It deemed the UCLA doctors liable for 25% of the award and Howmedica liable for 75%. The jurors found that the Howmedica knee was defective and that both UCLA and Howmedica had been negligent.

Brewster’s suit had sought $25 million in damages, but attorney McLean nevertheless proclaimed the verdict a victory. He said it is the largest award in California for the loss of a leg and that “it was a little bit above the settlement range” that had been discussed before the trial.

Lawyers said the announced award of $4.5 million had an actual cash value of $3.6 million, because it included a substantial amount of future earnings and anticipated medical expenses that, under standard practice for such awards, are discounted to their current value.

Howmedica attorney Bruce Gridley said he intends to make a settlement offer to Brewster of an unspecified sum less than $3.6 million, or will appeal for a new trial.

“We’ll consider it,” said McLean, but “I don’t see that (Gridley) has a powerful position to deal from.”

During the trial, the defendants had objected to Judge Joel Rudof’s excluding allegations that Brewster was grossly negligent and incompetent in treating his own patients. The accusations by 10 of his patients, which are to be heard before the Medical Board of California next month, include claims that Brewster performed operations without the patients’ informed consent, billed an insurance company for work that he had not done and broke patients’ bones.

Brewster’s podiatry license could thus be revoked, the defense lawyers argued. But the judge noted that the accusations were unproven and excluded the evidence as too prejudicial.

“It’s not surprising that (since) the jury got only part of the picture, that they reached this verdict,” Gridley said afterward.

Gridley also objected to instructions given to the jury. After jurors reported they were deadlocked on the 10th day of deliberations, Judge Hiroshi Fujisaki--who took over the case while Rudof was on vacation--told them that if a defect made the product unusable and injury resulted from the unusability, then they could find the manufacturer liable.

But Gridley contended that the Howmedica knee could have fit and that it was simply a judgment call by the doctors to use another device. “My product never had a chance to perform,” he said.

McLean said he wasn’t worried about a possible appeal because the jury found that the Howmedica knee was defective and that the manufacturer was negligent.

The jury levied the brunt of the judgment against Howmedica, Gridley said, because UCLA is a local institution, “whereas my client is an East Coast manufacturing company. I think people generally feel very kindly to UCLA.”

UCLA’s lawyer did not return phone calls.

Nancy Brewster, the plaintiff’s wife, who served as manager of the podiatry office and has become her husband’s caretaker, said the family was “very satisfied” with the judgment.

“It will make life comfortable for us,” she said. “Our children need to be taken care of.”