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Volume 3, Issue 8 March 2010

A Monthly National Review of State and Federal Civil Jury Medical Malpractice Verdicts with Professional Analysis and Commentary. The cases summarized in detail herein are obtained from an ongoing monthly survey of the State and Federal Courts throughout the United States.

$10,700,000 VERDICT ­ Ob/gyn negligence ­ Failure to properly treat pre-clampsia in pregnant plaintiff ­ Intracranial bleeding ­ Permanent brain damage to 37-year-old female. . . . . . . . . . . . . . . . . . . . . . . . . . 2 $10,500,000 VERDICT ­ Surgery ­ Failure to advise plaintiff that positive margins remained after lumpectomy ­ Failure to perform additional surgery ­ Metastasis from Stage II to Stage IV breast cancer. . . . . . . . . 3 $9,864,176 VERDICT ­ Surgery ­ Failure to properly place cannula from bypass machine during mitral valve surgery ­ Strokes to both sides of brain ­ Kidney and liver shut down ­ Paraplegia in 33-year-old mother . . . . 4 $4,519,500 VERDICT ­ Nursing/hospital negligence ­ Failure to set bed alarm ­ Failure to monitor high fall risk patient ­ Fractured hip. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 $4,044,051 VERDICT ­ Multiple infections following colon resection surgery ­ Failure to appreciate ongoing infectious process ­ Subsequent infections and abscesses and repair surgeries ­ Loss of three feet of the small bowel ­ Short gut syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 $3,000,000 VERDICT ­ Anesthesiology ­ Failure of defendant anesthesiologist to clearly label spinal catheter ­ Bolus of pain medicaton causes arythmia ­ Cardiac arrest ­ Intubation ­Wrongful death at age 87 . . . . . . 7 $2,050,000 RECOVERY ­ Anesthesiology ­ Failure to properly administer anesthetic agent during anal fistula surgery ­ Respiratory arrest ­ Death several days later . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 $1,590,000 JUDGMENT ­ Ob/gyn ­ Birth injury ­ Failure to identify risk of dystocia from ultrasound ­ Brachial plexus injury ­ Nerve graft surgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 $1,500,000 VERDICT ­ Hospital negligence ­ Failure to diagnose severe cardiac disease and high risk of heart attack ­ Fatal heart attack four hours after discharge ­ Wrongful death at age 59 . . . . . . . . . . . . . . . . . 10 DEFENDANT'S VERDICT ­ Medical malpractice ­ Alleged failure to prescribe asprin following transient ischemic attack ­ Massive stroke ­ Permanent brain damage at age 55 ­ Continuing care and therapy required . . . . 11


Dental . . . . . . . . . . . . . . . . . 13 Emergency Department . . . . . . . 13 Hospital Negligence . . . . . . . . . 14 Medical Provider Negligence . . . . 15 Nursing Home Negligence. . . . . . 15 Ob/Gyn . . . . . . . . . . . . . . . . 16 Ophthalmology . . . . . . . . . . . . 17 Orthopedic Surgery . . . . . . . . . 18 Podiatry . . . . . . . . . . . . . . . . 19 Radiology . . . . . . . . . . . . . . . 20 Surgery . . . . . . . . . . . . . . . . 20 Urology . . . . . . . . . . . . . . . . 21

Ó2010 National Medical Malpractice Review & Analysis


Summaries with Trial Analysis


Worcester County, Massachusetts

The female plaintiff, age 37, was pregnant with her second child. She had a history of migraine headaches. She had two pregnancies; one ended in a miscarriage prior to this pregnancy. Approximately one month prior to her due date, the plaintiff awoke with a severe headache which she believed was a migraine. When she could not relieve the severe pain with medication she went to the hospital. The plaintiff's blood pressure was high and the headache continued despite the administration of additional medication. During the night, the plaintiff became unresponsive and there was a decline in fetal heart rate. An emergency Csection was performed on the plaintiff. A CT-scan taken after the birth indicated that the plaintiff was suffering from a large grade V acute intracranial bleed which involved acute hemorrhage into the left basal ganglia, frontal lobes and ventricular system. There was hydrocephalus and mass effect according to medical records. The plaintiff underwent an emergency craniotomy and was in a coma for several weeks thereafter. She has sustained permanent brain injury and can no longer care for herself or her children. The plaintiff brought suit against the defendant ob/gyn, alleging negligence in failing to manage the obvious preeclampsia which resulted in the brain bleed and resulting brain damage. The plaintiff alleged that the defendant failed to obtain a neurological consultation and failed to administer any medication to lower the plaintiff's blood pressure. The defendant denied the allegations and maintained that there was no deviation from acceptable standards of care. The defendant maintained that she was properly monitoring the plaintiff's condition. The matter proceeded to trial. The jury returned its verdict in favor of the plaintiff and against the defendant. The jury awarded the plaintiff and her family the total sum of $10,700,000.


Plaintiff's ob/gyn expert: Ronald J. Foote, M.D. from Buffalo, NY. Plaintiff's maternal/fetal medicine expert: Frederick Gonzalez, M.D. from Dobbs Ferry, NY. Plaintiff's economist expert: Dana Hewins, Ph.D. from Lakeville, MA. Plaintiff's neurology expert: Steven H. Horowitz, M.D. from Yarmouth, ME. Plaintiff's life care planner expert: Ann White, R.N. from Newton, MA. Defendant's neurology expert: Joseph G. D'Alton, M.D. from Framingham, MA. Defendant's ob/gyn expert: Thomas F. Halpin, M.D. from Shrewsbury, MA.

Monson vs. Konig, et al. Case no. CV2003-01755; Judge Tucker.

Attorneys for plaintiff: Anne Marie Maguire, Gregg J. Pasquale and Melissa A. White of Keches & Mallen in Taunton, MA.

Attorneys for defendants: Charles P. Reidy and Kevin C. Reidy of Martin, Magnuson, McCarthy & Kenney in Boston, MA.

COMMENTARY The verdict was broken down as follows: $2,750,000 to the plaintiff mother for past pain and suffering; $1,500,000 to the plaintiff for future pain and suffering; $170,000 to the plaintiff for future lost earning capacity; $1,000,000 to the first child for loss of consortium; $500,000 to the second child for loss of consortium and $500,000 the plaintiff husband for loss of consortium. The female plaintiff suffers from partial right paraparesis, short term memory loss and vision damage. She requires around-the-clock care and is considered a danger to herself and her two children. The plaintiff argued that the defendant could have prevented the brain bleed by monitoring and medicating her for the preeclampsia. The plaintiff alleged that she was not properly informed in order to give informed consent regarding the issue of preeclampsia in a counter to the defendant's argument that the plaintiff and her husband desired to wait as long as possible before delivering the child, inferring that they were aware of the plaintiff's condition. The defendant argued that the plaintiff's medical history of migraines made the diagnosis and treatment of the plaintiff's preeclampsia more difficult.


Volume 3, Issue 8, March 2010



Ira J. Zarin, Esq.


Bronx County, New York

This was a medical malpractice action in which the plaintiff, in her mid 50s, contended that the defendant breast surgeon negligently failed to either advise the plaintiff that the pathology that returned after a lumpectomy showed positive margins for cancer and negligently failed to perform additional surgery. The plaintiff was also treated by the medical oncologist, and radiation oncologist who were members of the same group. The plaintiff maintained that these two physicians also failed to advise her of the findings. The defendants contended that they had advised both the plaintiff and her husband of the findings. The defendants further maintained that the underlying health issues, including cardiac disease and diabetes rendered additional surgery contraindicated. The evidence disclosed that the plaintiff presented in the summer of 2006, with a palpable lump in the breast and that following her review of appropriate diagnostic tests, recommended that the plaintiff either undergo a mastectomy or lumpectomy. The plaintiff chose the lumpectomy, which was performed on 7-24-06. The defendant breast surgeon believed, based on gross examination, that the sentinel nodes and her surgical margins were negative. Four days later, the defendant learned that one of the three nodes submitted were positive and several days thereafter, the pathology report returned, reflecting that the margins remained positive for cancer. Approximately three months before the lumpectomy, the plaintiff had undergone a quadruple bypass. She required hospitalization on 7-26-06, for respiratory pneumonia, and on 8-15-06, the plaintiff required two angioplasties and stenting because the arteries had become occluded again. The plaintiff maintained that irrespective of the cardiac difficulties, she clearly required additional surgery. The plaintiff's cardiologist contended that by mid-late September, the plaintiff would have been healthy enough to undergo surgery. The plaintiff's oncologist maintained that a PET-scan taken at this time showed no indications of metastasis, and that although the test is not conclusive, it was likely that the cancer had yet to spread. The plaintiff's oncologist testified that at a Stage II, the plaintiff had a 50-65% of long term survival. The expert contended that as a result of the delay, the cancer progressed to Stage IV, and involved both lungs, the liver, several ribs, both femurs and to portions of the spine. The plaintiff's expert maintained that there is now virtually no chance of survival. The defendant breast surgeon denied that additional surgery would have benefited the plaintiff and contended that it was likely that the cancer had already metastasized. The defendant also maintained that the cardiac risk rendered surgery contraindicated. The defendant medical oncologist saw the patient, determined that chemotherapy would be too dangerous because of the cardiac difficulties and attempted hormonal therapy, which was unsuccessful. The defendant radiation oncologist administered a course of radiation therapy which was unsuccessful as well. The defendants each contended that they had informed both the plaintiff and her husband of the findings and that they went through the pathology report with them line by line. The plaintiff denied that

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such advisements were given and pointed out that there were no indications that she sought a second opinion. The plaintiff argued that it was clear that if a patient with cancer had been told that the margins after lumpectomy were not clean, but that other health conditions rendered additional surgery contraindicated, the patient would seek a second opinion. The plaintiff further argued that the jury should consider that the defendants did not consult with a cardiologist and contended that their contention that they advised the plaintiff that further surgery was contraindicated because of her health difficulties should be rejected. The plaintiff's oncologist maintained that had the cancer been successfully addressed at the time of the initial diagnosis, she would have had a 50-65% chance of survival and that because of the metastasis and progression to State IV, such chances have virtually been eliminated. The jury found the defendant breast surgeon 60% negligent, the medical oncologist 30% negligent and the radiation oncologist 10% negligent. They then awarded $10,500,000, including $4,000,000 for past pain and suffering, $6,000,000 for future pain and suffering, $100,000 to the husband for past loss of services and $400,000 to the husband for future pain and suffering.


Plt: Quillen. Index no. 30085/06; Judge Stanley Green, 4-09.

Attorney for plaintiff: David J. Dean of Sullivan, Papain, Block, McGrath & Cannavo, PC in New York, NY.

COMMENTARY The defendants had each contended that they went through the pathology report line by line with both the patient and her husband and explained to her that although the margins remained positive for cancer, the underlying cardiac problems rendered additional surgery contraindicated. The plaintiff and her husband vigorously denied having been advised that the margins were not clean and that the defendants believed that additional surgery would be too dangerous to perform. The plaintiff strenuously emphasized that common sense and logic dictated that a patient given this type of news would seek a second opinion, arguing that the evidence that she did not seek a second opinion lent great support for the plaintiff's factual position. Additionally, the plaintiff stressed that the defendants did not consult with a cardiologist regarding the question of surgery. Finally, the plaintiff also argued that although the defendant breast surgeon's notes reflected that she had read the pathology report, they did not mention the advisements purportedly given to the plaintiff and her husband.


Fayette County, Kentucky

The 33-year-old single mother underwent a cardiac catherization procedure on April 12, 2006, which revealed a regurgitating mitral valve and a related enlarged heart muscle. The defendant recommended and performed bypass surgery on April 19, 2006, the goal of which was to repair the valve which would also likely correct the enlarged heart muscle. The heart valve repair was an unequivocal success and the surgery took less than one hour. The surgical team, however, was unable to get the plaintiff off the bypass pump. Her heart did not start beating as was expected during the attempt to wean her from the bypass machine. This process commenced approximately one hour after the plaintiff had been placed on the pump. The blood pressure measured in the plaintiff's right hand was over double the blood pressure in her aorta. The blood pressure is typically higher in the aorta because that is where the hose is placed that delivers the blood pumped from the bypass machine. Over an hour of attempting to wean the plaintiff from the machine and two hours after the surgery commenced, the defendant surgeon finally adjusted the hose supplying blood from the bypass machine. When the defendant pulled the cannula back they were able to remove the plaintiff from the bypass machine approximately ten minutes later. As a result of the improper positioning of the cannula, the plaintiff sustained excess blood flow in her right arm and lack of blood flow to her brain and other organs. She sustained a bilateral stroke and her kidneys and liver ceased to function. She is presently a paraplegic with right sided brain stroke and related left sided arm weakness. She is confined to a wheelchair. She lacks both bladder and bowel control. The plaintiff also suffers from depression issues. The plaintiff brought suit against the surgeon, the anesthesiologist and the perfusionist, alleging negligence in failing to recognize the signs and symptoms associated with the lack of blood and oxygen to her brain, organs and excess blood flow to her arm, which resulted in her injuries. The plaintiff presented evidence that cannula malpositioning is one common recognized bypass complication that requires immediate recognition and correction or the results, such as in the plaintiff's case, are catastrophic in nature. The plaintiff presented expert testimony that that the blood was misdirected into one of three branch vessels located at the arch of the plaintiff's aorta which caused too much blood to flow into her right hand and systemic low flow into the rest of her body. The defendant surgeon denied the allegations and maintained that the cannula was properly placed at all times and this was verified by the testing performed during the surgery. The defendant argued that the injuries sustained by the plaintiff were related to an aortic dissection or an embolic particulate. The defendant


Volume 3, Issue 8, March 2010


also attempted to allocate liability to the anesthesiologist and the perfusionist who already had entered into confidential settlement agreements prior to trial. At the conclusion of the eight day trial, the jury deliberated for three and a-half hours before returning their verdict. The jury found in favor of the plaintiff, assessing liability as 31% to the defendant surgeon, 23% to the anesthesiologist and 46% to the perfusionist. The jury awarded the total of 9,864,175 in gross. The net award to the plaintiff as to the defendant surgeon was $3,057,894.


Plaintiff's cardiothoracic surgery expert: Alexander Geha, M.D. from Rancho Santa Fe, CA. Plaintiff's cardio anesthesiologist expert: Mark Comunale, M.D. from Claremont, CA. Plaintiff's neurologist expert: Edward Feldman, M.D. from Providence, RI. Defendant's cardiothoracic surgery expert: Eric Hanson, M.D. from Troy, MI.

Satterwhite vs. Michael Sekela, M.D., et al. Case no. 06-CI-5075; Judge James D. Ismael, Jr.

Attorney for plaintiff: James M. Bolus, Jr. of Bolus Law Firm in Louisville, KY. Attorneys for defendant: Richard P. Schiller and Terrie Kirkpatrick of Schiller, Osbourn, Barnes & Maloney in Louisville, KY.

COMMENTARY The plaintiff videotaped the trial and played back 57 minutes of trial video clips during its two hour closing argument. This was a unique way of refreshing the jury's recollection of the key testimony and parts of the trial in an accurate and undisputable way. The defendant had testified that the malposition of the cannula was the sole complication of the surgery. The plaintiff presented evidence that the plaintiff had asked the surgeon why he never said he was sorry and he testified that he didn't tell her because "I have not had the opportunity". The plaintiff played this clip at the end of the closing, which emphasized the point that the defendant had ample time over the 30 days in the hospital and 30 days in rehabilitation to tell the plaintiff that he was sorry. The plaintiff presented expert testimony to demonstrate that there were numerous other red flags which should have signaled a problem with the position of the cannula. An early blood gas report of a test on the plaintiff's blood revealed that she was suffering from acidosis. The perfusionist treated the blood with sodium bicarbonate on four different occasions during the surgery and failed to inform the surgeon. The plaintiff presented evidence that the anesthesiologist had left the room during this incident where he was having coffee and socializing with peers. The plaintiff alleged that the defendant violated hospital policy and the standard of care. The perfusionist testified that there were approximately 25 different red flags that were missed by the defendants.


Providence County, Rhode Island

The 63-year-old male plaintiff suffered a mild stroke in September, 2005. He fell and found that he had suffered left side weakness. He was dropped off at the defendant hospital and entered the hospital of his own accord. At the time of admission he was identified as a high fall risk because of the stroke, the left sided weakness and a prior history of falling. He was admitted to the intensive care unit at the defendant hospital. All of the hospital beds in this unit are equipped with bed exit alarms. The alarms send an audible alert for the patient, if they attempt to exit the bed and also sends an alert to the staff, so they are aware of a patient's actions. The nurses in the intensive care unit failed to activate the bed alarm despite the fact that the plaintiff was admitted as a high fall risk patient. The defendant denied the allegations of negligence. The defendant argued that there was no deviation from acceptable standards of care since the decision as to the fall risk of patients was left to the nurses' discretion. The matter was tried for approximately three weeks. At the conclusion of the trial, the jury deliberated for approximately two days and returned its verdict. The jury found in favor of the plaintiff. The jury awarded the plaintiff the sum of $4,519,500, consisting of $2,000,000 for pain and suffering, $700,000 for future medical care and $750,000 to the plaintiff's wife for her loss of consortium claim.


Plaintiff's nursing care expert: Patricia Noah, M.S.N., R.N., C.N.R.N. from Burgettstown, PA. Plaintiff's geriatric medicine expert: Jeffrey M. Levine, M.D. from New York, NY. Plaintiff's rehabilitation expert: Jon Mukand, M.D. from Providence, RI.

The plaintiff woke in the middle of the night on his second night in the hospital and had to use the restroom. As he got out of bed, thinking he was home, he fell. He fractured his left hip. He had to undergo surgery for the Villegas vs. Roger Williams Medical Center. Case no. fracture. PC 06-6027; Judge Judith Savage, 6-25-09. The plaintiff brought suit against the defendant hospital, alleging negligence. The plaintiff alleged that the hospital was negligent in failing to properly monitor the plaintiff who was categorized as a high fall risk and in failing to activate the bed exit alarm. The plaintiff's wife brought a claim for loss of consortium.

Attorneys for plaintiff: Neil F.X. Kelly and Mark Brice of Decof & Decof in Providence, RI. Attorney for defendant: William F. White of White, Carlin & Kelly in Providence, RI.

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COMMENTARY There are motions post-trial for judgment as a matter of law and a motion for a new trial. These motions are presently pending. The court has awarded statutory interest in the amount of $837,000 for the plaintiff and $232,500 for the plaintiff's wife. The plaintiff experienced complications as a result of the fall. The surgery on his hip could not be performed until several days after the fall since the plaintiff was experiencing stroke symptoms worse after the fall. In addition, he suffered numerous other complications as a result of the stroke and the fall.

The jury found that the hospital failed to properly train its staff with regard to high fall risk precautions. Further, the jury ruled that the staff did not properly comply with the standard of care when they failed to activate the bed exit alarm on the plaintiff's bed. The plaintiff needs a wheelchair to ambulate. He has suffered nerve damage and infections as a result of the incident. He continues to experience chronic pain on a daily basis.


Fort Bend County, Texas

The plaintiff brought suit for medical malpractice after undergoing a routine surgical procedure of the small bowel that resulted in an infection and numerous abscesses, debridements, hospitalizations and subsequent surgeries. The plaintiff alleged that during the procedure, the defendant performed a surgery which left a residual leak in the bowel and afterward failed to appreciate the nature of an ongoing infectious process and failed to refer the plaintiff. The plaintiff alleged he lost approximately three feet of his small bowel due to the defendant surgeon's negligence, which in turn caused him to develop short gut syndrome. The defendant argued that the problems the plaintiff experienced post-surgery were indicative of the plaintiff's diagnosis of Crohn's Disease and were not negligence on his part. The male plaintiff, who was 41-years-old at the time of trial, had undergone a bowel resection in 1993, which removed a blockage, and he had been asymptomatic for ten years. In 2003, the plaintiff began experiencing pain in his abdomen and was scheduled for routine colon resection surgery on August 25, 2003. The surgery would typically require a three day hospitalization in the small, six bed hospital in which the defendant was part owner and investor; yet, because of complications, the plaintiff remained in the hospital for ten days. The plaintiff developed an infection, evidenced by a fever of 104 degrees, and he was re-operated on August 27, 2003. The defendant physician testified he could not find anything wrong with the plaintiff at that time and therefore, concluded there were no leaks or infections. The plaintiff contended that upon subsequent visits to numerous other physicians, they additionally relied upon the defendant's finding of "no leak," which the plaintiff claimed contributed to the large amount of time that lapsed until he was successfully treated. The plaintiff continued to suffer from complications, including an office visit in which lettuce and bowel content were found exuding from the stomach. On January 14, 2004, a third surgery was performed; yet, the plaintiff suffered from and was treated for multiple abscesses and infections which resulted in numerous hospitalizations. This continued until the plaintiff's family doctor, an internist, researched and paid for the plaintiff's trip to Mr. Sinai Hospital in New York where he underwent another resection surgery that according to the plaintiff, was finally done correctly and sufficiently treated his symptoms. The defendant made no offers to the plaintiff, and the plaintiff asked of the jury $794,000 in medical costs in addition to claims for past and future physical impairment, physical pain and suffering and mental anguish. After more than five hours of deliberation, the jury awarded a total of $4,044,051.11: $794,051 for past medical care, $2,000,000 for future physical impairment, $250,000 for past physical impairment, $500,000 for future physical pain and suffering and mental anguish and $500,000 for past physical pain and mental anguish.


Plaintiff's gastroenterology expert: Dr. David Sachar, M.D. from New York, NY. Plaintiff's general surgery expert: Dr. Adrian Greenstein, M.D. from New York, NY. Defendant's colorectal surgery expert: Dr. Eric Haas, M.D. from Houston, TX. Defendant's surgery expert: Dr. Gary Stein, M.D. from Sugarland, TX.

William J. Orton vs. Guillermo Ponce De Leon, M.D. Case no. 05-CV-146040; Judge Clifford J. Vacek, 9-2309.

Attorneys for plaintiff: Charles Soechting and Pat Kelly of The O'Quinn Law Firm in Houston, TX. Attorneys for defendant: Trace Sherer and Divya Chundru of Harris, Hillburn and Sherer in Houston, TX.


Volume 3, Issue 8, March 2010

SUMMARIES WITH TRIAL ANALYSIS COMMENTARY This large verdict amount was awarded in a traditionally conservative district and was virtually the entire amount asked by the plaintiff. A factor in the verdict was the plaintiff's documented refutation of one of the defendant's primary arguments made during opening statements that the plaintiff's own non-compliance played a part in the complications he experienced. The plaintiff displayed documented evidence that the missed doctor's appointments alleged by the defendant were because the plaintiff was hospitalized during such appointments as a result of complications alleged to have been caused by the defendant. The plaintiff's attorney believes the jury was angered by the defendant surgeon's "blinders" and refusal to admit there may have been a leak present. He believes the jury was further angered that after expert testimony given by the Mt. Sinai physicians who successfully treated the plaintiff, the defendant's counsel responded by claiming the jury should believe his client and his local expert witnesses and not "those New York doctors." One of the plaintiff's experts had never before testified in a malpractice case and the other had only done so three times before, despite their extensive careers, which made them appear to the jury as more than simply hired experts. The defendant expert, who was a business partner of the defendant in the surgical clinic, made lofty claims of being one of the top gastroenterologists in the Houston area, yet the plaintiff established that the surgical expert for the defendant had, in fact, been out of his residency two months at the time of the initial surgery.


Philadelphia County, Pennsylvania

This case involved the allegation that the defendant anesthesiologist was negligent in failing to adequately communicate and clearly mark the decedent's catheter as a spinal catheter (delivering medication directly to the spinal fluid) as opposed to an epidural catheter (delivering medication to the epidural space inside the bony spinal canal but outside the membrane called the dura mater). As a result, the plaintiff alleged that the co-defendant, a nurse anesthetist, delivered a bolus of pain medication which sent the decedent into cardiac arrest and caused her death. Unbeknownst to the jury, the co-defendant nurse anesthetist, the anesthesia service which employed him, and the hospital where the decedent was treated, all settled the plaintiff's claims for an undisclosed sum prior to trial. The defendant anesthesiologist argued that the decedent's catheter was appropriately documented and that the codefendant nurse anesthetist failed to sufficiently monitor the decedent for a possible adverse reaction after administering the medication. The plaintiff was an 87-year-old female who underwent elective knee replacement surgery on June 17, 2005. The defendant anesthesiologist delivered anesthetic during the surgery. The plaintiff alleged that the defendant anesthesiologist first attempted to administer an epidural catheter to deliver the medication, but was unable to do so. The defendant then inserted a spinal catheter which remained post-surgery for additional administration of pain medication. The first post-operative day, the decedent complained of pain and the non-party orthopedic surgeon, who had performed her knee replacement surgery, called to the anesthesiology department to have them address her pain. The (settling) nurse anesthetist arrived, administered a 6cc bolus of ropivocaine at approximately 8:40 a.m. and left the decedent's room at approximately 8:43 a.m., according to evidence offered. A hospital nurse next entered the decedent's room at 9:00 a.m. and found her unresponsive. The decedent was diagnosed with a cardiac arrhythmia. She was resuscitated and intubated, but died five days later after her family honored her living will by removing her from life support systems. The (settling) nurse anesthetist testified that he assumed that the decedent had an epidural catheter at the time he administered the bolus. The plaintiff argued that the defendant anesthesiologist failed to clearly communicate the type of catheter used or to label or mark the catheter as a spinal catheter. Therefore, the spinal catheter resulted in an overdose of the pain medication which caused the decedent's death. The plaintiff's medical experts testified that the 6cc bolus of ropivacaine, delivered through epidural catheter, would not have triggered the cardiac arrest which occurred. Family members and a friend of the decedent described the decedent's many interests and active social life including, playing cards, dancing and exercise classes. The plaintiff also introduced videotapes of the decedent attending birthday parties at age 83 and 85. The decedent was a widow who was survived by adult children. The defendant anesthesiologist argued that the co-defendant nurse anesthetist failed to check the medical records to ascertain the type of catheter used. It was also alleged that the nurse anesthetist was negligent in leaving the decedent's room immediately and should have monitored her for at least ten minutes to make sure that she did not have an adverse reaction to the medication. The jury found the defendant anesthesiologist 35 percent negligent and the (settling) nurse anesthetist 65 percent negligent. It awarded the plaintiff $3,000,000 in damages, including $2,000,000 for the wrongful death claim and $1,000,000 for the survival action. The plaintiff's motion for delay damages in excess of $227,000 is pending.

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Despite her age, the decedent was portrayed as an individual who enjoyed life, exercised regularly, participated in line dances, drove her friends to dinner outings and maintained an active social life. It was fairly clear-cut that the decedent's death from drug overdose delivered to her spinal column resulted from negligence on the part of at least Kessler vs. Berman. Case no. 07-04-02073; Judge Matone of the defendants. The trial dynamics may have been altered by a prethew D. Carrafiello, 6-23-09. trial settlement on the part of the co-defendant nurse anesthetist who actuAttorney for plaintiff: Brian S. Chacker of Gay, Chacker ally delivered the fatal bolus of pain medication. Evidence showed that the nurse anesthetist had been in a surgery, left the surgery to administer the & Mittin, P.C. in Philadelphia, PA. Attorneys for decedent's medication and then returned to the surgery about three minutes defendant anesthesiologist: Gary Samms and James E. later. Kurack Jr. of Obermayer, Rebmann, Maxwell & Hippel The nurse anesthetist testified very honestly that he had made a mistake in Philadelphia, PA. Attorneys for (settling) nurse and offered his apologies to the decedent's family. Counsel for the nurse ananesthesiologist and his employer: Jacqueline Drygas esthetist appeared for trial and the jury was unaware of his settlement. and James Kilcoyne of Kilcoyne & Nesbitt in Plymouth Meeting, PA. Attorney for (settling) defendant, Nazareth Although the jury held the nurse anesthetist primarily responsible, it still asHospital: Cynthia Brennan of Kane, Pugh, Knoell, Troy & sessed 35% negligence against the defendant anesthesiologist, apparently accepting the plaintiff's contention that the spinal catheter should have been Kramer in Philadelphia, PA. clearly communicated or marked to avoid the type of mistake that occurred. The settling hospital, Nazareth Hospital, has reportedly changed its policies COMMENTARY regarding the use of spinal catheters after this incident to ensure that the The unanimous Philadelphia County jury hearing this case apparently becatheters are clearly marked and that a patient be closely monitored for at lieved that the decedent's age, at 87, was not a detriment to recovery of a least 15 minutes following a bolus administration. The hospital disputed visubstantial damage award. In this regard, plaintiff's counsel called one of the decedent's friends, as well as close family members who knew her well. carious liability, arguing that neither the defendant anesthesiologist nor the nurse anesthetist were employees of the hospital. REFERENCE

Plaintiff's anesthesiologist expert: Lorne B. Sheren from Chatham, N.J. Defendant's anesthesiologist expert: Robert Salvage from Fairless Hills, PA.


Queens County, New York

In this action, the plaintiff contended that the defendant anesthesiologist negligently failed to wait a sufficient period after administering an epidural anesthetic into the spine before having the patient lie down while a surgical repair of anal fissures was performed. The plaintiff contended that as a result, the anesthetic agent prevented the nerves which allow for breathing to function and caused respiratory arrest. The patient died several days later because of the injuries. The decedent was collecting social security disability because of injuries sustained in an automobile accident. The surgery lasted ten minutes. Prior to the arrival of the non-party surgeon, the defendant anesthesiologist had administered an epidural injection of the anesthetic agent. The agent is denser than spinal fluid, and therefore takes a few minutes to descend to the area that innervates the surgical field. The surgery is then performed with the patient prone on his front. The plaintiff maintained that the patient was prematurely placed in the prone position and covered with surgical drapes with the operative area protruding. The plaintiff contended that when the surgery was completed and the drapes removed, it was noted that the patient was cyanotic. A code was called and resuscitation efforts were unsuccessful. The plaintiff contended that failing to wait for the anesthetic agent to descend to the operative field constituted a deviation. The plaintiff also maintained that the defendant's records did not reflect that he realized there were any difficulties before the surgical drapes were removed and contended that with proper monitoring, the defendant would have realized that the patient required immediate intubation. The defendant contended that he did ascertain that the patient could not breathe and that he made immediate attempts to place a mask on the patient and administer oxygen by bag, but that the plaintiff could not be revived. The plaintiff maintained that even if such attempts were made, the defendant was clearly negligent because the chances of successfully administering oxygen with a bag and mask while the patient was face-down were very low. The decedent left a wife and a son. The plaintiff contended that based upon a mentioning of the patient resisting when the respiratory therapist attempted to change his mask the following day, the decedent experienced some conscious pain and suffering. The evidence disclosed that the decedent had been declared disabled by the Social Security Administration some years earlier because of injuries sustained in a motor vehicle accident. The plaintiff contended that the death occasioned approximately $215,000 in reduced benefits. The plaintiff would have also made a claim for approximately $180,000 in loss of pension benefits.


Volume 3, Issue 8, March 2010


The decedent left a wife and two sons. The plaintiff contended that the decedent was very close with his family and that the loss of parental nurture and guidance by the sons was extensive. One of the sons would have testified that he and his father were avid fishermen, and described the manner in which they would fish for different types at different times of the year.

Attorney for plaintiff: Philip A. Russotti of Wingate, Russotti & Shapiro in New York, NY.

COMMENTARY: The decedent had been declared totally and permanently disabled by the Social Security Administration some years earlier and the plaintiff's claims for economic losses revolved around reduced social security and pension benefits, as well as the pecuniary value of household services and guidance The case settled prior to trial for $2,050,000. and advice. It is felt that the plaintiff was able to obtain a particularly significant recovery in view of these limitations and the contrast between the relaREFERENCE tively simple nature of the surgery and the catastrophic outcome would have Plaintiff's anesthesiologist expert: Sheldon Deluty from clearly caused a strong jury reaction if the case had been tried.

New York University in New York, NY.

Borzacchiello vs. Abarra; Index no. 14162/06; 4-09.


New Haven County, Connecticut

The plaintiff mother was under the care of the defendants for her pregnancy with the infant plaintiff. She was assigned a due date of December 22, 2001, by the defendants. The plaintiff went to the hospital on December 30th, to deliver the infant. During the delivery, the child suffered a brachial plexus injury and had to undergo nerve graft surgery to repair the shoulder. The plaintiff was also diagnosed with Horner's Syndrome. The plaintiff alleged that during the pregnancy, an ultrasound was performed which was suspicious for macrosomia, yet the defendants failed to repeat the ultrasound and failed to identify the risks of shoulder dystocia during the delivery of the infant. The plaintiff maintained that the defendants failed to give her all of the information necessary to give informed consent as to the birthing process.

care planner expert: Edmund Provder from Lodi, NJ. Plaintiff's accounting expert: Richard A. Royston, C.P.A. from Glastonbury, CT. Defendant's ob/gyn expert: Robert Dropkin, M.D. from Albany, NY. Defendant's pediatric neurology expert: Paul Chervin, M.D. from Woburn, MA. Defendant's life care planner expert: Beth Lee Greenbaum, Ph.D. from Pptomac, MD.

A.P. vs. Helm & Helm P.C. and Joseph Peccerillo, M.D. Case no. CV03-0475872-S; Judge Angela C. Robinson.

Attorney for plaintiff: John-Henry Steele of Dey Smith LLC in Milford, CT. Attorney for defendants: Thomas J. Mortati of Burke, Scolamiero, Mortati & Hurd in Albany, NY.

COMMENTARY The plaintiff and the defendants argued over whether the amount of force exerted by the defendant doctor during the delivery was excessive and The plaintiff brought suit against the defendants, alleg- caused the child's shoulder injury. The plaintiff's position was that the deliving that they were negligent in failing to properly advise ering doctor's actions caused a tearing of the left brachial plexus nerves the plaintiff mother about the possibility of dystocia which has resulted in a severe limitation to the child in the use of the shoulduring the birthing process so she could make an inder and arm. The plaintiff alleged that the ultrasound taken one month formed decision regarding the choice of a vaginal as prior to her delivery indicated that the infant was macrosomic, or large, for opposed to a cesarean birth. In addition, the plaintiff the projected delivery date. The defendants failed to perform another ultraalleged that the doctor that delivered the child was sound to confirm the size of the child and to potentially re-evaluate the denegligent in failing to properly manage the labor and livery date. The plaintiff also alleged that the defendants, knowing that delivery to minimize the dangers to the child. The dethere was even a possibility of macrosomia, failed to have a delivery plan in fendants denied the allegations of negligence and place knowing that the infant may not be able to be delivered vaginally or disputed that there was any deviation from may be prone to shoulder dystocia. acceptable standards of care. The plaintiff maintained that no such plan was in effect, and further, that the defendants failed to even advise her that dystocia was possibility. She The matter was tried before the bench and the judge alleged that she was unable to give informed consent since she was not apreturned a verdict in favor of the plaintiff mother and prised of these facts and not given a choice as to whether she would proceed infant, awarding the sum of $1,590,000. with a vaginal birth or a cesarean birth. The plaintiff alleged that the child has visible defect in the left arm and shoulder as a result of the injury susREFERENCE tained. The child has weakness and visible deformity in the arm which will Plaintiff's ob/gyn expert: Ronald A. Swik, M.D. from impact the rest of the child's life.

New Haven, CT. Plaintiff's pediatric neurology expert: Daniel Adler, M.D. from New York, NY. Plaintiff's life

National Medical Malpractice Review & Analysis




Westmoreland County, Pennsylvania

The decedent was a 59-year-old female in February 2005 when she presented to the defendant hospital with an allergic reaction to one of her medications. The plaintiff alleged that, when the decedent complained of chest pain, the defendant attending physician was negligent in discharging her without an appropriate cardiac work-up. The plaintiff also contended that a codefendant, the decedent's treating family physician, failed to properly monitor the decedent after prescribing nitroglycerin for her heart. The plaintiff claimed that the decedent suffered a fatal heart attack some four hours after her hospital discharge. The hospital where the decedent was treated was named as a defendant based on the allegation that hospital nurses failed to timely report the decedent's symptoms to the attending physician. The defendants argued that the plaintiff was appropriately treated for an allergic reaction and showed no evidence of the impending heart attack. The defense maintained that the decedent's death resulted from overdose of pain medication and that the plaintiff could not establish that the death was related to preexisting cardiac disease. death was heart attack. The plaintiff's experts testified that pain medication, delivered through a duragesic patch prescribed by a non-party physician for an unrelated condition, was within therapeutic levels. The plaintiff maintained that appropriate monitoring and cardiac work-up would have revealed the decedent's severe heart condition and allowed appropriate hospitalization and treatment to prevent her fatal heart attack. The plaintiff's expert testified that the defendant attending physician deviated from the required standard of care in failing to perform a full cardiac work-up on the decedent prior to her discharge from the hospital. The defendant attending physician, Horne, maintained that the decedent's treatment and discharge were appropriate in light of her condition at the time and that her subsequent heart attack was not predictable. The defendant family physician, Berkebile, argued that he appropriately treated the decedent and prescribed medications for her heart and for her high cholesterol.

The defense showed that shortly prior to her hospital admission, the decedent had requested an increase in her duragesic pain patch. Medical records showed that the decedent advised the prescribing on-party Evidence showed that approximately a month before physician that she was taking more than the prescribed the decedent's death, she had been treated by her dosage of the pain medication. The defendants confamily physician, the defendant, Berkebile, for chest pain and was prescribed nitroglycerin for her heart. The tended that the decedent's death may have been replaintiff contended that the decedent also had a fam- lated to an overdose of her prescription pain ily history of heart disease, high cholesterol and hyper- medication as delivered through the duragesic patch. There were no toxicology tests performed to rule out tension placing her in the high-risk category for heart pain medication overdose and the plaintiff could not attack. The plaintiff alleged that the defendant, Berkebile, failed to adequately monitor the decedent's establish that the death was caused by cardiac disease, according to the defense. heart condition and control her high cholesterol and hypertension. The jury found the defendant attending physician, The decedent presented to the defendant hospital on Horne, 60% negligent, the defendant family physician, Berkebile, 25% negligent and the defendant, Excela February 14, 2005, with signs and symptoms of an alHealth Latrobe Hospital, 15% negligent. The plaintiff lergic reaction to medication which had been prewas awarded total damages of $1,500,000. Delay scribed by the defendant, Berkebile, for cholesterol. damages were added to the recovery. The allergic reaction was diagnosed and the decedent was admitted to the hospital under the care of the defendant attending physician, Horne, who preREFERENCE scribed Benadryl for the allergic reaction. The following Plaintiff's internist expert: Dean Nickles from morning, February 15, 2005, the decedent comOakland, CA. Plaintiff's cardiologist/internist expert: plained of chest pain. She was treated by the defenJerome Itzkoff from Pittsburgh, PA. Plaintiff's dant attending physician, Horne, with nitroglycerin for pathologist expert: Crio Wecht from Pittsburgh, PA. the chest pain and discharged with a prescription for a Miller vs. Excela Health Latrobe Hospital fka Latrobe stress test. Area Hospital, et al. Judge W. J. Ober. The decedent died on February 15, 2005, four hours Attorneys for plaintiff: Rudolph L. Massa and Gary Butler after her hospital discharge. The plaintiff's medical exof the Massa Law Group in Pittsburgh, PA. Attorney for perts opined that the decedent's death was caused defendants: David Johnson of Thomson, Rhodes & by a cardiac arrest due to the severe nature of her Cowie, P.C. in Pittsburgh, PA. preexisting cardiac disease. The coroner of Westmoreland County confirmed that the cause of


Volume 3, Issue 8, March 2010

SUMMARIES WITH TRIAL ANALYSIS COMMENTARY This was a rather complicated medical malpractice trial involving a decedent who had been treated by a number of physicians for a variety of ailments. The main defense strategy was to challenge the decedent's cause of death and stress the lack of toxicology studies which would rule out an overdose of pain medication. In this regard, the defendants pointed to records showing that the decedent was taking more than the prescribed dosage of the duragesic patch pain medication and had requested more from a non-party physician. However, the plaintiff was able to show several indications of cardiac disease, including the fact that the plaintiff had chest pain, high cholesterol, hypertension and was on nitroglycerin. In addition, the Westmoreland County coroner, who performed an autopsy, gave persuasive testimony that the cause of death was clearly cardiac arrest related to the decedent's severe heart disease. Plaintiff's counsel presented a common sense theme that the safest place to diagnose and treat a heart condition was in the hospital. The defendant attending physician acknowledged that the hospital nurse did not immediately advise her of the decedent's chest pain, an omission which the plaintiff claimed violated hospital policy. The jury may also have believed that the defense position, there was no indication of impending heart attack, was negated by that the fact that the attending physician prescribed nitroglycerin and discharged the decedent with a prescription for a stress test. The decedent's husband was a compelling witness on damages and described his 25-year-marriage and how the loss of his 59-year-old wife had devastated his life. He related bringing his wife home from the hospital on February 15th and going to work only to return four hours later with a bouquet of flowers for Valentine's Day to find her unresponsive and near death. The significant $1.5 million award was rendered after a nine-day trial and approximately four hours of deliberation by the Westmoreland County jury hearing the case.


Philadelphia County, PA

This medical malpractice action went to trial against the defendant attending physician who cared for the plaintiff after he was admitted to the hospital with confusion, elevated blood pressure and numbness in his hands and feet. The plaintiff alleged that he suffered a transient ischemic attack (TIA) and that the defendant negligently discharged him without aspirin or other antiplatelet medication to reduce the plaintiff's risk of a subsequent stroke. The plaintiff suffered a debilitating stroke approximately a month after his discharge. The defendant argued that the plaintiff suffered from a hypertension crisis, not TIA and that aspirin would not have prevented his stroke. The defendant attending physician contended that he appropriately stabilized the plaintiff at the hospital and instructed him to follow-up with his primary care physician for on-going long-term care. The plaintiff's primary care physician and the hospital where the plaintiff was treated settled the plaintiff's claims for an undisclosed sum prior to trial. The plaintiff was a 55-year-old mortgage broker on May 6, 2005, when he was admitted through the emergency room to the hospital with complaints of confusion, numbness in his hands and feet and blood pressure of approximately 200/100. The plaintiff was admitted to the hospital under the care of the defendant attending physician. The plaintiff had a history of hypertension, but reported that he had not taken his hypertension medication for several months before the admission. He was also a cigarette smoker, overweight and suffered anxiety. cated a TIA, which is an early warning sign of stroke and placed the plaintiff at a higher risk for future stroke. The plaintiff's expert testified that the standard of care required that the defendant prescribe aspirin or another antiplatelet agent to reduce the risk of stroke. The plaintiff showed that a consulting neurologist at the hospital had recommended that the plaintiff be started on aspirin, yet the aspirin was not prescribed by the defendant. The plaintiff was readmitted to the hospital on June 12, 2005 with slurred speech, blurred vision, eyes drifting to one side, numbness in his arms and facial droop. The plaintiff was diagnosed as having suffered a brain stem stroke. The plaintiff alleged that the risk of stroke could have been significantly reduced by the simple prescription of aspirin. The plaintiff was unable to return to work and was placed on social security disability. His neuropsychiatrist testified that the stroke has left the plaintiff with permanent brain damage and associated cognitive deficits. The plaintiff is unable to live independently and will require ongoing care and treatment which will increase with age, according to his experts. The plaintiff was separated from his wife and lived in the basement of daughter's house until just before trial, at which time he moved in with a friend. The plaintiff made no claim for lost wages, but sought approximately $700,000 to $800,000 in future life care.

The defendant testified that he believed that the plaintiff was suffering from a hypertension crisis and that the most important thing was to get his blood pressure under control. The defense argued that malignant hypertension with markedly high blood pressure can cause The plaintiff's blood pressure was brought under control symptoms similar to a TIA, the plaintiff was never diagand he was discharged by the defendant on hyperten- nosed with TIA and there was no evidence that aspirin sion medication and instructions to follow-up with his would have prevented his subsequent stroke. primary care physician. The plaintiff's medical expert testified that the plaintiff's signs and symptoms indi-

National Medical Malpractice Review & Analysis



COMMENTARY One of the plaintiff's main exhibits during the trial of this medical malpractice action was an enlarged recommendation made by a consulting hospital neurologist that the plaintiff be started on aspirin. The plaintiff maintained that the simple prescription would have greatly reduced the risk of the debilitating stroke which subsequently occurred. Apparently the jury accepted the contention that it was better to err on the side of caution, as the aspirin was harmless, even if it was not effective in reducing the risk of future stroke. The jury determined that the defendant was negligent in not prescribing the aspirin. However, the jury may also have considered the other significant risk factors The jury found that the defendant was negligent, but that his negligence was not a factual cause in causing involved, and the fact that the plaintiff had not been compliant in taking his medications in the past. Thus, the jury concluded that the defendant's negliinjury to the plaintiff. gence was not a factual cause of the plaintiff's subsequent stroke. The defense theme centered on liability more so than damages and sought REFERENCE to develop a clear division of labor between the defendant attending physiPlaintiff's internal medicine expert: Ronald Banner cian and the plaintiff's (settling) primary care physician. The defense confrom Philadelphia, PA. Plaintiff's neurologist expert: tended that the defendant properly performed his function at the hospital by Sara Tabby from Philadelphia, PA. Plaintiff's stabilizing the plaintiff and discharging him with instructions to return to his vocational rehabilitation expert: Donald Jennings primary care physician. The defense argued that logically, the primary care from Jenkintown, PA. Plaintiff's life care planner physician was responsible for the plaintiff's on-going treatment and health expert: Betsy Bates from Philadelphia, PA. care management. The defendant testified that he did not want to start any Edwards vs. Steinberg, et al. Case no. 06-12-00194; long-term therapy until the plaintiff's primary care physician was involved. Judge Frederica A. Missiah-Jackson, 4-24-09. Evidence also showed that the primary care physician saw the plaintiff between his hospital admissions and had ordered blood work, which the Attorneys for plaintiff: Nadeem A. Bezar and Allan H. plaintiff did not have drawn. Gordon of Kolsby, Gordon, Robin, Shore & Bezar, P.C. in The case was tried over the course of six days, with a two hour deliberation Philadelphia, PA. Attorney for defendant: Michael E. before the jury returned with a defense verdict.

The defense maintained that the defendant attending physician took a reasonable approach in stabilizing the plaintiff and referring him back to his primary care physician for on-going therapy, including stopping smoking, managing his weight, hypertension and blood pressure. Evidence showed that the plaintiff's primary care physician had seen the plaintiff and ordered blood work between the plaintiff's hospital admissions, but the plaintiff had not had the blood work completed.

McGilvery of Young & McGilvery in King of Prussia, PA.


Volume 3, Issue 8, March 2010


Verdicts by Category



Dental malpractice ­ Prosthodontic negligence ­ Negligent installation of bridgework ­ Headaches ­ Aggravation of preexisting TMJ. The defendant installed an upper arch bridge in the plaintiff's mouth in 2003. The plaintiff alleged that following the installation of the bridge, she experienced headaches and an aggravation of her preexisting TMJ problem. She also alleged that her jaw was forced backward by the installation of the bridge. The plaintiff sought the services of another dentist who repaired the bridge. The plaintiff still complains of unceasing pain. At the conclusion of the trial, the jury returned its verdict in favor of the defendant and against the plaintiff. This was the second trial, during the first trial, a mistrial was declared by the trial judge.

Jefferson County, Kentucky

In this matter, the plaintiff alleged that the prosthodontist was negligent in the installation of a bridge which caused the plaintiff to suffer headaches and an aggravation of a preexisting TMJ problem. The defendant denied the allegations of negligence and maintained that there was no breach of the standard of care.


Plaintiff's dental expert: Barry Gibberman D.M.D. from Cincinnati, OH. Defendant's dental expert: Brent Haeberle, D.M.D. from Louisville, KY.

The plaintiff brought suit against the defendant, alleging negligence. The defendant denied the allegations and maintained that the The female plaintiff, age 52, treated bridge was properly installed and there was no deviation from any with the defendant prosthodontist. She had a history of unstable teeth. standard of care.

Patten vs. Piontek. Case no. 058182; Judge Gibson.

Attorney for plaintiff: Allen McKee Dodd of Dodd & Dodd in Louisville, KY. Attorney for defendant: Christopher P. O'Bryan of O'Bryan, Brown & Toner in Louisville, KY.



Emergency department negligence ­ Failure to diagnose stroke in 15-year-old female. plaintiff returned to a different hospital less than one day later with continued and worsening complaints. She was diagnosed at that time with ischemic stroke. The plaintiff alleged that she sustained physical and cognitive delays as a result of the delay in diagnosis. The plaintiff brought suit against the defendant, alleging that the defendant was negligent in failing to diagnose the plaintiff's stroke. The plaintiff alleged that the defendant should have administered an MRI and kept the child overnight for observation. ready occurred prior to her coming to the hospital and were not the result of any action or omission on the part of the defendant. The matter proceeded to trial. The jury returned its verdict in favor of the defendant and against the plaintiff. Post trial motions were pending.

Shelby County, Kentucky

In this matter, the plaintiff alleged that the defendant emergency room doctor failed to diagnose a stroke in the 15-yearold female plaintiff who presented to the emergency room after falling down stairs at her home. The defendant denied the allegations and disputed that there was any deviation from acceptable standards of care in the treatment of the plaintiff.


Plaintiff's neurology expert: Seemant Chatuverdi, M.D. from Detroit, MI. Defendant's ER expert: Bruce Janiak, M.D. from Augusta, GA. Defendant's neurology expert: Kenneth Gaines, M.D. from New The 15-year-old female plaintiff pre- The defendant denied the allegaOrleans, LA. Defendant's radiology sented to the emergency room and tions and maintained that there was expert: Dennis Whalley, M.D. from Louisville, KY. the defendant on December 27,

2005, after she complained that she fell down the stairs at her house and then experienced arm pain. The defendant performed a CTscan which was normal and released the child with instructions to follow-up with her family doctor. The

no deviation from acceptable standards of care. The defendant maintained that the plaintiff failed to demonstrate any symptoms or complaints which would indicate stroke, especially in a 15-year-old. The defendant further argued that any injuries from the stroke had al-

May vs. Wetherington. Case no. 060440; Judge Hickman, 3-13-09.

Attorneys for defendant: Scott W. Whonsetler and Robert Ott of Whonsetler & Johnson in Louisville, KY.

National Medical Malpractice Review & Analysis




$2,060,000 RECOVERY

Hospital negligence ­ Negligent credentialing and supervision ­ Wrongful death of woman following transabdominal laparoscopic cyroablation. neither of the surgeons who performed the procedure had ever performed that procedure before operating on the decedent. During the surgery, the surgeons perforated the decedent's stomach and she later died as a result of the infection that developed. The plaintiff alleged that the defendant surgeons were negligent and that the hospital was negligent for failing to properly credential and supervision the surgeons. The plaintiff also alleged that the surgeons and the hospital failed to inform the plaintiff that the doctors had never performed the procedure before and therefore, they did not have informed consent from the decedent. The defendants denied the allegations. The defendant hospital maintained that in lieu of peer review, it held public meetings. The defendants agreed to permit judgment in the amount of $2,060,000 to be entered against the hospital in favor of the plaintiff. The plaintiff had settled with the surgeons in a confidential settlement prior to this matter.

Brooke County, West Virginia

In this matter, the plaintiff alleged that the defendant hospital was negligent in permitting the surgeons to perform a procedure which neither had performed before without properly supervising and credentialing the surgeons. The defendant denied the allegations. The female decedent underwent a procedure at the defendant hospital called a transabdominal laparoscopic cyroablation to freeze a lesion located on her kidney. The decedent's doctors suspected that the lesion was cancerous, although tests did not confirm that she had cancer. The plaintiff alleged that


Plaintiff's surgical expert: John Edoga, M.D. from Morristown, NJ. Plaintiff's hospital administration expert: Arthur Shorr from Woodland Hills, CA. Defendant's hospital administration expert: Lynn Buchanan from TX.

Haught vs. Weirton Medical Center. Case no. 07-C-41; Judge Arthur M. Recht, 5-12-09.

Attorneys for plaintiff: Christopher Regan and Geoffrey Brown of Bordas & Bordas in Wheeling, WV. Attorney for defendant: James J. D'Ambrose in Brockton, MA.


Hospital negligence ­ Alleged negligent failure to prevent suicide ­ Alleged failure to admit patient, a police officer, who presents with complaints of severe anxiety and advises that he had previously secured his weapons because of his concerns. department guns because of work pressures and other causes of anxiety, the patient should have been admitted. The triage nurse contended that she so told the other defendants who denied being so advised.


Plaintiff's psychiatrist expert: Steven A. Fayer from New York, NY. Defendants' psychiatrist expert: John O'Brien from Philadelphia, PA.

The defendants maintained that irrespective of this factor, admission Morris County, New Jersey was not justified. The defendants esThe plaintiff contended that when tablished that the decedent had denied suicidal intent both that day the 39-year-old police officer presented to the emergency room at the hospital and the following with complaints of severe anxiety day during a phone call between and advised the triage nurse, his him and the hospital staff. sister-in-law, that he had secured The jury found for the defendants. both his personal and

Cillo vs. Morristown Memorial Hospital, et al. Docket no. MRS-L-249205; Judge W. Hunt Dumont, 9-09.

Attorney for mental health professional and psychiatrist: Michael S. Bubb of Bubb, Grogan & Cocca, LLP in Morristown, NJ. Attorney for defendant triage nurse: Kenneth J. Fost in Bloomfield, NJ.


Volume 3, Issue 8, March 2010




Medical provider negligence ­ Improper placement of feeding tube ­ Respiratory arrest in infant ­ Oxygen deprivation ­ Cerebral palsy. inserted the feeding tube into the plaintiff's lung rather than his stomach. No one discovered this error and the next three feedings were given to the plaintiff into his lung, rather than his stomach. After the Peoria County, Illinois third feeding, the plaintiff suffered In this matter, the plaintiff respiratory arrest. Emergency resusalleged that the defendant citation efforts were undertaken, but medical provider was negligent were initially unsuccessful because in the placement of a feeding no one realized the scope of the tube which caused respiratory problem at the time. When one arrest and resulting brain health care provider inserted a damage. The defendant denied chest tube into the infant's lung for the allegations. a possible pneumothorax and milk The infant plaintiff was born on Ocimmediately came spilling out, it tober 5, 2003, and was several became apparent to the staff that weeks premature, but otherwise this was the originating problem. healthy. He was placed in the NICU The plaintiff was revived immediunit so that he would be able to ately thereafter; however, the child gain weight and develop further had been deprived of oxygen suffiprior to discharge from the hospital. ciently long enough to suffer brain At approximately three weeks of damage. The plaintiff was age, a feeding tube was inserted so diagnosed with cerebral palsy as a that the infant could receive routine result of the incident. two hour feedings. The defendant The plaintiff brought suit against the defendant medical provider, alleging negligence and breach of the standard of care. The defendant denied the allegations of negligence and disputed the nature and extent of the plaintiff's claim for damages. The parties eventually agreed to a confidential settlement of $12,500,000. It is reported as the largest personal injury settlement in this county.


Keith Quadros, a minor by his parent and next friend, Sunil Quadros and Sunil Quadros, individually vs. Undisclosed Medical Provider. Case information withheld, 5-5-09.

Attorneys for plaintiff: David J. Pritchard and Patrick A. Salvi of Salvi, Schostok & Pritchard P.C. in Chicago, IL.


$350,000 RECOVERY

Nursing home negligence ­ Failure to develop and implement decubitus ulcer plan despite assessed risk upon admission ­ Defendant's negligence allegedly substantial factor in death of patient. Cook County, Illinois The plaintiff contended that upon her admission to the defendant nursing home on June 15th, the patient was identified as being at risk for the development of pressure ulcers. The plaintiff maintained that despite her known risk, the defendant nursing home staff failed to develop and implement a care plan to address this risk until March, well after the decedent had developed serious pressure ulcers on her back and sacrum. The records reflected that pressure ulcers were first noticed were first noted prior to a hospitalization in February of 2006. The plaintiff asserted that the nursing home continuously violated the standard of care and nursing home policies and procedures by failing to develop and implement a plan of care to prevent these ulcers from worsening. The plaintiff contended that it was not until March 2006 that the nursing home staff developed a care plan to address the decedent's worsening pressure ulcers. On March 18th, the ulcer on the decedent's back was documented as a Stage III and a sacral ulcer was documented as a Stage II. The plaintiff maintained that between March 18th and April 6th, her pressure ulcers continued to worsen. On April 6th when she was hospitalized again, her sacral ulcer was unable to be staged and her back ulcer had progressed to a Stage IV. The plaintiff contended that the decedent was also malnourished, dehydrated and had a MRSA infection. The plaintiff asserted that these injuries, along with the deterioration in her physical and mental condition, contributed to cause her death on November 27, 2006. The plaintiff maintained that the pain and suffering during the approximate ten month stay was severe. The case settled prior to trial for $350,000


Case information withheld. Case no. 2007 L 003778; 9-09.

Attorneys for plaintiff: Steven M. Levin and Michael Bonamarte of Levin & Perconti in Chicago, IL.

National Medical Malpractice Review & Analysis




$4,230,000 VERDICT

University Center for Reproductive Health negligence ­ Theft of eggs, lack of consent for egg transfers and misappropriation of eggs resulting in live births. them with minimal oversight from UCI and medical center administrators until the center was closed in 1995 by a university official. Evidence that the physicians took human eggs without consent, fertilized them and transferred the embryos went undisputed by the defendants as the first round of litigation ensued. The defendants contended they could not be held vicariously responsible for the renegade actions of the physicians. Yet, in 1999, the defendants resolved approximately 125 cases for more than $20,000,000. An additional 38 cases were resolved for a waiver of costs or nominal settlement payments. The next round of litigation, which began as 18 additional cases, included the 12 resolved in this series of cases. The plaintiffs presented documentation of misappropriation of eggs, some resulting in live births and some involving eggs which went unaccounted for. The plaintiffs claimed they did not know they may have been victims because they were never contacted by the university and made aware of the problems at the center. In these cases, the defendants claimed that because of the tremendous amount of publicity which arose from the first round of litigation in the later 1990s, they plaintiffs most certainly had knowledge that something at the clinic may have been amiss, and therefore, the statute of limitations had been running and had, in fact, expired years before. The defendants argued they did their best to contact patients with the limited records that remained from the clinic. The defendants demurred to the complaint on statute of limitations grounds, which was sustained without leave by the judge. The plaintiffs appealed and the decision of liability was reversed by the Fourth District Court of Appeal on the grounds that constructive suspicion based on publicity alone was insufficient to trigger the statute of limitations. The two parties then engaged in a series of five mediations and settled for amounts ranging from $45,000 to $675,000, for a total of $4,230,000.

Orange County, California

This settlement resulted from a series of twelve cases brought by plaintiffs who had received treatment at the UCI Center for Reproductive Health at either Garden Grove Medical Center in Garden Grove, CA or Saddleback Memorial Medical Center in Laguna Hills, CA between 1987 and 1994. The plaintiffs brought suit against the defendant board of regents who recruited two physicians to direct the center for reproductive health, alleging the physicians misused human embryos with prohibited egg transfers and misappropriation of biologic material. These cases were brought in 2003, years after the plaintiffs had received treatment at the reproductive health center and years after the actions of the physicians went public, and the defendants therefore, contended the cases were barred by the statute of limitations. In 1986, the UCI College of Medicine and American Medical International recruited the two physicians from the University of Texas, San Antonio Medical Center, and the center was operated by


Debra Ann Beasley and John Kent vs. Regents of the University of California (Multiple related actions).

Attorney for plaintiff: Daniel M. Hodes of Hodes Milman, LLP in Los Angeles, CA. Attorneys for plaintiffs: Steven Heimberg of Heimberg Law Group, LLP in Los Angeles, CA and Mark Bush, Esq. of Legion Counsel, LLP in Southern California, CA. Attorneys for defendant: Byron Beam, Esq. and Louise Douvill, Esq. of Beam, Brobeck, West, Borges & Rosa, LLP in Newport Beach, CA.


Ob/gyn ­ Alleged failure to perform cervical examination ­ Premature delivery at home ­ Death of newborn ­ Claimed negligent infliction of emotional distress. Memorial Hospital where the plaintiff was evaluated. The plaintiff alleged that the defendant ob/gyn deviated from the required standard of care in failing to perform a cervical examination which would have revealed that the delivery was eminent and allowed proper hospitalization. The defendants argued that the sudden delivery of the baby resulted from a placental abruption which occurred after the defendant ob/ gyn had last seen the plaintiff. The defense maintained that a cervical examination was not called for, as a low lying placenta created a risk of inducing labor or causing hemorrhage if a cervical examination had been performed. The plaintiff presented to the defendant hospital on Thursday night, December 4, 2004, at approximately 7:00 p.m., with a history of vaginal spotting. She was in her 29th week of gestation at the time. The defendant, Geisinger Clinic, rented the fourth floor of the defendant, Tyler Memorial Hospital, in 2004. Hospital

Wyoming County, Pennsylvania

This action arose from the death of the plaintiff's newborn daughter four hours after the premature infant was delivered at home in 2004. The defendants in the case included a treating ob/gyn, Geisinger Clinic which employed the doctor and Tyler


Volume 3, Issue 8, March 2010


nurses called the defendant ob/gyn who had treated the plaintiff during her prenatal period. The defendant ob/gyn spoke with a Tyler Hospital nurse who reported that the plaintiff's spotting had stopped, there were no contractions and fetal monitor strips were normal. The defendant doctor did not come into the hospital, but instructed the nurses to have the plaintiff come back the following morning. The plaintiff returned on Friday morning, December 5, 2005, as instructed and she was seen by the defendant ob/gyn who ordered an ultrasound. The ultrasound was read, by a non-party radiologist, as not showing an acute problem and the plaintiff was discharged home. Sometime Saturday morning (December 6, 2004), approximately 24 hours after she had been discharged by the defendant ob/gyn, the plaintiff delivered a baby girl at home alone. The plaintiff called "911" after the birth. The paramedics arrived and were required to break through the plaintiff's locked apartment door. The premature infant (29 weeks) was taken to nearby Montrose Hospital, which unfortunately did not have an incubator or any other capacity to care for severely premature infants. The baby's attempted airlift to Wilson Hospital, across the New York border, was hampered by a severe snow storm. The baby died four hours after it was born. The plaintiff's expert ob/gyn testified that the defendant doctor should have performed a cervical exami-

nation of the plaintiff on the evening of December 4th or the morning of December 5, 2004. Such an examination would have revealed cervical dilation and other indications that delivery would soon take place and the mother could have been sent to a hospital with facilities for premature infants, according to the plaintiff's claims. The plaintiff argued that birth in an appropriate hospital would have greatly increased the infant's chance of survival. The plaintiff was 32 years old at the time of her infant daughter's death. She had been diagnosed with schizophrenia at age 18 and was taking the medication, Abilify, to control the condition. The plaintiff alleged that the death of her daughter worsened her preexisting emotional state and required that she be admitted to a psychiatric hospital. The plaintiff alleged negligent infliction of emotional distress, as well as medical malpractice against the defendants. The defendant ob/gyn testified that tests showed that the plaintiff exhibited a low-lying placenta. In such cases, the defendant argued that a cervical examination was contraindicated and could induce labor or cause hemorrhage. The defendant's placental pathologist testified that the plaintiff suffered from a placental abruption. The plaintiff's placental pathology agreed and testified the abruption occurred, at the earliest, the morning of December 5, 2004, and caused the sudden delivery. The defense contended that there was no evi-

dence of the placental abruption at the time the plaintiff was last seen by the defendant doctor and there was no indication that the delivery was imminent. The defendant played the deposition testimony of the plaintiff's longtime treating psychiatrist. He testified that the plaintiff's emotional health worsened for a period of time after the death of her daughter, but she is currently no worse off then she had been before the event. The jury found for the defendants on all counts.


Plaintiff's ob/gyn expert: James Balducci from Paradise Valley, AZ. Plaintiff's economist expert: Andrew Verzilli, Jr. from Lansdowne, PA. Plaintiff's placental pathologist expert: Theonia Boyd from Boston, MA. Defendant's placental pathologist expert: Dale Huff from Philadelphia, PA.

Bennett vs. Walker, Geisinger Medical Clinic and Tyler Memorial Hospital. Judge Brendon Vanston, 8-7-09.

Attorney for plaintiff: Joseph P. Lenahan of Lenahan & Dempsey in Scranton, PA. Attorney for defendants, Walker and Geisinger Medical Clinic: Anna M. Bryan of White & Williams in Philadelphia, PA. Attorney for defendant, Tyler Memorial Hospital: Bruce Coyer of O'Malley, Harris, Durkin & Perry in Scranton, PA.



Alleged failure to advise plaintiff to seek immediate medical treatment for eye symptoms ­ Eye infection ­ Retinal detachment ­ Loss of vision in one eye. when the plaintiff complained of eye symptoms. The defendant argued that he advised the plaintiff to present to the hospital immediately, but the plaintiff did not follow his instructions. Wills Eye Hospital, where the plaintiff was treated, was also named as a defendant in the case on a vicarious liability theory. The plaintiff was a 50-year-old man when a piece of metal entered his eye while he was working on a lawn mower. The plaintiff presented to the defendant, Wills Eye Hospital, where he came under the care of the defendant ophthalmological surgeon. The defendant removed the foreign object from the plaintiff's eye and gave the plaintiff instructions for follow-up treatment.

Philadelphia County, Pennsylvania

The plaintiff alleged that the defendant, an ophthalmological surgeon, was negligent in failing to advise the plaintiff to seek immediate medical treatment

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The plaintiff testified that the day after his injury, he called the defendant doctor and complained of eye pain. The defendant was attending a seminar in San Diego, California at the time he received the plaintiff's call on his cell phone. The plaintiff testified that the defendant told him he could go to the emergency if he wanted to, but that there was no urgency. The plaintiff presented to the hospital approximately 11 hours after speaking with the defendant. He was treated for infection which ultimately resulted in a retinal detachment.

and that the defendant was negligent in failing to advise him to seek immediate treatment.

The defendant physician testified that he advised the plaintiff, during the cell phone conversation in question, to go to Wills Eye Hospital immediately. The defense argued that the defendant doctor had spoken with the plaintiff earlier in the day and advised the plaintiff to go to the local community hospital emergency room immediately for tingling sensations in his chin. However, the plaintiff did not present to the local emergency room on the prior occasion for approximately 1.5 The plaintiff is legally blind in one hours after speaking with the defeneye as a result of the retinal detach- dant, even though he lived only ten ment. The plaintiff claimed that im- minutes away. The defense argued mediate treatment would have that the plaintiff's earlier actions indiavoided the retinal detachment cated that he was not compliant to the defendant's instructions. The de-

fense also contended that earlier treatment for the plaintiff's eye infection would not have prevented the ultimate retinal detachment which occurred. The jury found that the defendant physician was not negligent.


Bartholomew vs. McGuire, et al. Case no. 07-04-04227; Judge Paul Panepinto, 6-19-09.

Attorney for plaintiff: Thomas Duffy of Duffy & Partners in Philadelphia, PA. Attorney for defendant Maguire: Daniel J. Sherry of Marshall, Dennehey, Warner, Coleman & Goggin in King of Prussia, PA. Attorney for defendant, Wills Eye Hospital: Robert Britton of Post & Schell in Philadelphia, PA.



Orthopedic surgery ­ Inappropriately sized tibial base plate allegedly inserted in knee replacement surgery ­ Total knee revision to remove and replace plate. pain and clicking and popping of her knee. The defendant argued that the components used in the knee replacement, including the tibial base plate, were appropriate and properly sized and that the plaintiff's complaints arose from an accident the plaintiff was subsequently involved in one year after the 2004 surgery. After a ten day trial and after the jury deliberated for between two and three hours, the jury of three men and three women returned a defense verdict, finding no departures.

Nassau County, New York

On February 3, 2004, the defendant orthopedic surgeon performed a total replacement surgery on the 39-year-old female plaintiff. The surgery was required due to severe arthritis that developed secondary to a workplace accident the plaintiff was in 1999. The plaintiff alleged that the defendant committed medical malpractice by inserting a tibial base plate that was a full two sizes larger than was appropriate and that as a result there was a severe overhang. The plaintiff further alleged that during the two years that the defendant continued to treat the plaintiff, the defendant concealed the error in spite of the plaintiff's reported complaints of severe


Plaintiff's orthopedic surgery expert: Gregory Shankman from Utica, NY. Defendant's orthopedic On March 20, 2006, a nonparty or- surgery expert: David Benatur from thopedic surgeon performed a total Long Island, NY.

knee revision. He stated in his operating report and testified at trial that the tibial base plate was two sizes too large. The defense expert orthopedic surgeon opined that there were no departures, that the components were properly sized and that the plaintiff's subsequent accident caused the onset of her symptoms. Initially, the plaintiff demanded $750,000 of the jury; during the trial, the plaintiff demanded $650,000. No offers of settlement were made.

Mitchell Kraeling vs. Barry G. Simonson. Index no. 012448/2006; Judge Joseph P. Spinola, 5-15-09.

Attorney for plaintiff: Duffy and Duffy in Uniondale, NY. Attorney for defendant: Charles Connick of Charles X. Connick, esq. in Mineola, NY. Attorney for defendant: Montfort, Healy, McGuire, in Garden City, NY.


Volume 3, Issue 8, March 2010




Podiatry ­ Alleged malpractice during metatarsal osteotomy ­ Lack of informed consent ­ Alleged failure to monitor and negligent post-operative care ­ Continuing pain and disability. work and on November 9, 2004, she reported that she was feeling much better. The plaintiff claimed that she developed intensifying pain that stemmed from her right foot. By September of 2005, she had visited the defendant three times to seek evaluation of the pain. On March 20, 2007, another podiatrist performed follow-up revisionary surgery, but the plaintiff claimed that she suffers continuing pain and disabilities. She claimed that she has to rest after walking long distances and her disability impairs her ability to perform housework. the plaintiff's difficulty in understanding English. The judge dismissed that claim.

The defendant argued that the external fixation he used was consistent with podiatric standards for a Queens County, New York second metatarsal osteotomy and that he did not approve of the The plaintiff contended that the defendant podiatric surgeon plaintiff returning promptly to work; failed to properly perform a rather, he advised her to remain second metatarsal osteotomy non-weight bearing form four to five surgery to treat a hammertoe of weeks after the surgery. The defense her right foot's second toe, that further argued that the X-rays he he failed to obtain informed performed during the first and fifth consent to the procedure, and weeks after surgery were consistent that he failed to render proper with the standard of care and that post-operative care. The plaintiff more frequent X-rays would not maintained that immediately have altered the plaintiff's outafter the procedure she felt fine The plaintiff commenced this action come. Defense experts opined that and was advised by the against the defendant alleging that the plaintiff's one actual disability defendant that she could return he negligently performed the surstemmed from the displacement of to work. She then claimed to feel gery, that he failed to obtain inan implant that was inserted during pain and was required to formed consent to the procedure the revisionary surgery performed by undergo follow-up surgery and and that he failed to render proper a different surgeon. They mainthat she continues to feel post-operative care. Specifically, tained that removal of the implant ongoing pain and disability. The she contended that her second would resolve the plaintiff's pain. defendant argued that the metatarsal did not heal properly procedure he performed was because the defendant had failed The trial lasted five days. After delibconsistent with podiatric to apply both internal and external erating for five hours, the jury of one standards for a second fixation devices, and instead only male and five females returned a metatarsal osteotomy and that he applied external fixation. unanimous defense verdict. did not advise the plaintiff to return to work for five weeks while she remain non-weight bearing. The plaintiff's podiatric expert opined that the defendant would have been able to correct the improper healing had he performed On September 23, 2004, the 58year-old female plaintiff, a mainte- X-rays during the second, fourth and sixth weeks following surgery. nance worker, underwent the secThe plaintiff further contended that ond metatarsal osteotomy in the the defendant should not have addefendant's office. The procedure involved shaving the bone that con- vised her to return to work as soon as she did, less than two weeks after nected her left foot's second toe surgery. In addition, the plaintiff aland the middle portion of her left leged that the defendant did not foot. The procedure also included the removal of a neuroma. On Oc- disclose the risks associated with the procedure and that, therefore, the tober 5, 2004, the defendant replaintiff did not give informed conmoved the surgical sutures. The sent. This claim was predicated on plaintiff immediately returned to


Plaintiff's podiatry expert: Ovidio Falcone from Brooklyn, NY. Defendant's podiatry experts: Thomas DeLauro from Manhattan, NY and Edwin Wolf from New York, NY.

Maria Ano Grozav vs. David Goldhaber, D.P.M. Index no. 022825/2006; Judge Allan B. Weiss, 3/19/09.

Attorney for plaintiff: Fredric Lewis in New York, NY. Attorney for defendant: Feldman, Kiefer & Herman in Buffalo, NY.

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$275,000 VERDICT

Wrongful death ­ HMO radiologist fails to appreciate pathology on chest X-rays ­ Failure to adequately label Xrays ­ Delayed diagnosis of Stage IV squamous cell carcinoma of the lung. The female plaintiff, in her mid 60s at the time the X-rays were done, enrolled in the defendant HMO in 1998. Based upon her history of smoking, she obtained chest X-rays from HMO physicians in 2003 and 2004. Those X-rays were read as old granulomatous disease and old rib fractures. In July 2004, the plaintiff changed physicians within the HMO and no chest X-rays were obtained despite the fact the plaintiff was coughing up bloody sputum at that time. She was diagnosed with a chest infection and no further chest films were recommended. In 2008, the plaintiff was diagnosed with stage IV squamous cell carcinoma of the lungs and began medical treatment for the disease. The plaintiff argued that by labeling the film as "old granulomatous disease," her treating physicians were misled and therefore, failed to order serial X-rays, failed to refer her to specialists and failed to obtain a biopsy. The plaintiff further argued that had the diagnosis been made around 2004, her disease would have been curable. The case settled prior to trial, but the defendant was prepared to argue the standard of care was met at all times and that even had the plaintiff's diagnosis been made in a more timely fashion, she would not have been survivable. The plaintiff demanded $350,000 and the defendant offered $200,000. The matter settled via binding arbitration for $275,000, which included the plaintiff's claim for her injuries and the adult children's potential claims for wrongful death.

Riverside County, California

The decedent plaintiff contended the radiologist for defendant HMO failed to appreciate the pathology on a set of chest Xrays done in 2003 and 2004, which the plaintiff claimed indicated the presence of a mass. The plaintiff brought suit against the HMO claiming negligence in the standard of care which delayed her diagnosis of stage IV squamous cell carcinoma of the lungs; a delay she claimed affected the curability of her disease. The defendant claimed there was no breach in the standard of care in the labeling of the X-rays. The plaintiff's adult children also joined the settlement with claims of wrongful death. The plaintiff died as a result of her illness shortly after this case settled.


Roe vs. Doe, HMO. Mediator Judge Thomas F. Nuss, Retired, IVAMS.

Attorney for plaintiff: Jeffrey A. Milman, Esq. of Hodes Milman, LLP in Irvine, CA. Attorneys for defendant: Mike Lubrani and Leanna Hiraoka of Lubrani & Smith, LLP in Riverside, CA.



Surgery ­ Insertion of catheter sheath causes laceration of innominate vein leading to tamponade and cardiac death. The decedent, who was not working due to having been disabled by a cerebral aneurism 30 years prior, presented to the defendant vascular surgeon for installation of a cenMiddlesex County, Massachusetts tral line for the purpose of kidney In this medical malpractice case, dialysis. The plaintiff alleged that in the decedent, a 56-year-old installing the catheter, the defenmarried woman with three adult dant lacerated the innominate vein children, claimed that the and/or the superior vena cava by defendant vascular surgeon forcing a stiff dilator sheath through breached the standard of care when he lacerated the decedent's the vein. The plaintiff contended that when difficulty in inserting the innominate vein and/or the dilator was encountered, the defensuperior vena cava during dant should have stopped and not surgery. The defendant argued that laceration is a known risk of continued to attempt to insert the stiff sheath which caused the lacerthe procedure and that the ation. The decedent's laceration defendant did not breach the led to hemoparacardium with carstandard of care. diac tamponade and cardiac death. The plaintiff further claimed that the decedent's tamponade was not reversed immediately such that it became fatal. At trial, the plaintiff presented a general surgery and transplant expert with great deal of experience in central lines. The plaintiff's expert testified that the defendant should have stopped at the junction of the jugular and nominant vein, particularly when he encountered resistance. The plaintiff's expert opined that the decedent actually suffered lacerations in two places resulting in what was essentially a puncture wound. On cross examination, the plaintiff's expert admitted that he was not familiar with the type of catheter kit used in this case which was substantially different from the type he was familiar with.


Volume 3, Issue 8, March 2010


The defendant argued that the risk of laceration of cardiac vessels and tamponade are a known risk of the procedure that the plaintiff's decedent underwent and that the decedent was informed of the risk. The defendant asserted that he complied with the standard of care at all times during the procedure. The defendant pointed to the fact that the decedent had kidney disease and required the catheter for dialysis and that, on autopsy, blood was found in two places in the decedent's body indicating a question as to cause of death. The defendant called an expert in endovascular and vascular surgery

from Massachusetts General Hospital. The defendant's expert testified that fatalities resulting from laceration represent less than or equal to 1%. The defendant's expert also noted that some degree of force is necessary to insert the sheath and that the procedure should not be abandoned because resistance is encountered. The defendant's expert testified that the defendant inserted the sheath properly and there was no medical malpractice. The jury found no negligence by the defendant and returned a verdict in favor of the defendant.


Plaintiff's general and transplant surgery expert: Dr. Raymond Pollak from Chicago, IL. Defendant's Chief of endovascular and vascular surgery expert: Dr. Richard Cambria from Boston, MA.

Cannavino, Administrator of The Estate of Ann Cannavino vs. Hoenig. Case no. MICV2004-02131.

Attorney for defendant: Peter C. Knight of Morrison Mahoney in Boston, MA.



Surgery ­ Plaintiff undergoes post-vasectomy exploratory surgery ­ Severe scrotal infection ­ Multiple surgeries ­ Loss of one testicle. proximately two weeks after the vasectomy surgery. At that time, the plaintiff had left epididymal swelling with a surrounding hydrocele. The impression of the operating urologist was that Mr. Cutler had a resolving epididymis, and he made a plan to treat him with non-steroidal anti-inflammatory medications with instructions to return to the clinic in one to two weeks. The defendant, Hendin, subsequently took over the care of the plaintiff, Cutler, because he was on call when Mr. Cutler presented with excruciating pain in his left testicle. On May 23, 2006, the defendant, Hendin, performed an exploration and drainage and diagnosed the plaintiff's condition as a post-vasectomy bleed which had turned into a large hematocele. The defendant, Hendin, drained approximately 80 cc to 100 cc of serosanguineous fluid from the left scrotum and sent a culture to test if there was an infection in the fluid. Prior to the exploration and surgery, the defendant, Hendin, washed the surgical field with Bacitracin. Post-operatively, the defendant, Hendin, prescribed the antibiotic Bactrim. The culture results showed that there was no infection in the serosanguineous fluid the defendant had drained from the left scrotum. The defendant, Hendin, gave the plaintiff, Cutler, his personal cell phone number so that the plaintiff could have direct contact with him regarding his medical condition. The plaintiff, Cutler, returned to see Hendin on May 31, 2006, and reported that his pain had decreased, but he still had swelling. At that time, the plaintiff was still taking Bactrim, Celebrex, and 800 mg. of Ibuprofen for pain. The defendant noted that the plaintiff's scrotal swelling was slightly decreased and that the incision was intact, healing well and tender. He instructed the plaintiff to continue taking NSAIDs and return in two weeks for a scrotal ultrasound. At that time, Hendin's notes indicated that the plaintiff's post-operative course was stable. The plaintiff returned six days later on June 5, 2006, complaining of left scrotal pain. The defendant's examination indicated that the swelling was stable and that the incision appeared clean, dry, and intact. The defendant advised the plaintiff to continue his NSAIDs, change the dressing three times daily, and return to work in two weeks. On June 6, 2006, the plaintiff called the defendant's cell phone and told him that his surgical incision had separated and that purulent pus was escaping. The defendant instructed the plaintiff to immediately go to the emergency room and that he would have an urologist and the nursing staff waiting for his arrival.

Harris County, Texas

In this medical malpractice action, the 46-year-old male plaintiff contended that the defendant was negligent in his care and treatment following another physician's bilateral scrotal vasectomy. The plaintiff maintained that instead of following the previous physician's plan for conservative treatment, the defendant opted to perform exploratory surgery and drainage. As a result, the plaintiff claimed that he developed a massive scrotal infection which necessitated several surgeries and ultimately the removal of one testicle. The defendant contended that his care and treatment of the plaintiff conformed to the standard of care and that the subsequent infection was the result of the original surgery. The evidence revealed that the plaintiff, Cutler, received a vasectomy from another physician more than one month prior to treatment by the defendant surgeon, Dr. Hendin. The prior urologist who performed the vasectomy had treated Mr. Cutler for continuing pain and swelling in the left testicle for ap-

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The next morning, on June 7, 2006, the defendant took the plaintiff to the operating room for another exploratory surgery. During this exploration, the defendant found that the left epididymis was massively dilated and he drained a large amount of purulent material. The defendant left the scrotum incision open, packed it, and ordered the plaintiff to stay in the hospital so he could have daily dressing changes. His plan called for a return to the operating room in the next one to two days for further inspection. The plaintiff returned to the operating room on June 9, 2006, for further incision and drainage. The defendant, Hendin, the urologist who performed the original vasectomy, and the chief urology resident, were all involved in this surgery. During the procedure, the defendant, Hendin, after discussion with the other two urologists in the O.R., performed a left orchiectomy. Although the testicle itself was not infected, it was not healthy and was encompassed by infected tissue. The plaintiff contended that the defendant negligently failed to properly identify and timely treat the infection, and that his actions resulted in the defendant negligently removing a viable testicle. The plaintiff presented expert testimony by an urologist from New Jersey, who testified that the defendant negligently delayed early antibiotic

treatment which caused the infection to spread to contiguous areas of the scrotum. Specifically, the expert testified that the epididymitis was the source of the infection. He also testified that the spread of the infection rendered subsequent intervention more difficult due to the magnitude of alleged sepsis and subsequent adhesions. The plaintiff's expert opined that had the defendant applied reasonable and customary care with scrotal exploration and orchiectomy, adequate drainage, removal of necrotic tissue, and vigorous antibiotic measures, the removal of the left testicle in reasonable medical probability would not have been necessary. The defense presented the expert testimony of an urologist from Houston. This expert testified that unfortunately, the plaintiff had two conditions going on, one of which masked the symptoms of the other. The first condition involved a complex hematocele. This meant that the blood in the enclosed area caused both the tissues and the spermatic cord to swell. The defense testified that the swelling from the hematocele masked the symptoms of the infection, which started after the first incision and drainage procedure. The expert opined that the defendant's management plan for the plaintiff was appropriate and further opined that the removal of the testicle was appropriate.

The defense also presented expert testimony from the treating pathologist who looked at the removed testicle and supportive tissue after the orchiectomy surgery. This expert showed the jurors via microscopic slides that there was no infection in the epididymis. She also showed the jurors that the infection was in the supportive tissue, not the epididymis. The jury was comprised of one African-American male, eight Caucasian males, and three Caucasian females. The trial lasted four days and the jury deliberated for two hours before returning a unanimous verdict for the defense, finding that the defendant was not liable for the injury suffered by the plaintiff Cutler.


Plaintiff's urology expert: Bernard Strauss, M.D. from West Orange, NJ. Defendant's pathology expert: Schwartz, M.D. Defendant's urology expert: Michael Coburn, M.D. from Houston, TX.

Daniel Cutler vs. Benjamin Hendin, M.D. Case no. 2007-04747; Judge Reece Rondon.

Attorney for plaintiff: James V. Pianelli of The Civil Justice Center in Houston, TX. Attorneys for defendant: Jeffrey B. McClure and Shae H. Wilson of Andrews Kurth LLP in Houston, TX.


Volume 3, Issue 8, March 2010



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