VERDICTS BY SPECIALTY SUMMARIES WITH TRIAL ANALYSIS

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  SUMMARIES                     $10,700,000 VERDICT – Ob/gyn negligence – Failure to properly treat pre-clampsia in pregnant plaintiff –
  WITH TRIAL                    Intracranial bleeding – Permanent brain damage to 37-year-old female. . . . . . . . . . . . . . . . . . . . . . . . . . 2
  ANALYSIS                      $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
Volume 3, Issue 8               valve surgery – Strokes to both sides of brain – Kidney and liver shut down – Paraplegia in 33-year-old mother . . . . 4
March 2010                      $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
A Monthly National              infectious process – Subsequent infections and abscesses and repair surgeries – Loss of three feet of the small bowel –
Review of State and
Federal Civil Jury
                                Short gut syndrome . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Medical Malpractice             $3,000,000 VERDICT – Anesthesiology – Failure of defendant anesthesiologist to clearly label spinal
Verdicts with
Professional Analysis
                                catheter – Bolus of pain medicaton causes arythmia – Cardiac arrest – Intubation –Wrongful death at age 87 . . . . . . 7
and Commentary.                 $2,050,000 RECOVERY – Anesthesiology – Failure to properly administer anesthetic agent during anal
                                fistula surgery – Respiratory arrest – Death several days later . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
The cases                       $1,590,000 JUDGMENT – Ob/gyn – Birth injury – Failure to identify risk of dystocia from ultrasound –
summarized in detail
herein are obtained             Brachial plexus injury – Nerve graft surgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
from an ongoing                 $1,500,000 VERDICT – Hospital negligence – Failure to diagnose severe cardiac disease and high risk of
monthly survey of the
State and Federal               heart attack – Fatal heart attack four hours after discharge – Wrongful death at age 59 . . . . . . . . . . . . . . . . . 10
Courts throughout
the United States.
                                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


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




Ó2010 National Medical
Malpractice Review & Analysis
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS




                Summaries with Trial Analysis
     $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.
Worcester County, Massachusetts                                REFERENCE
The female plaintiff, age 37, was pregnant with                Plaintiff’s ob/gyn expert: Ronald J. Foote, M.D. from
her second child. She had a history of migraine                Buffalo, NY. Plaintiff’s maternal/fetal medicine expert:
headaches. She had two pregnancies; one ended                  Frederick Gonzalez, M.D. from Dobbs Ferry, NY.
in a miscarriage prior to this pregnancy.                      Plaintiff’s economist expert: Dana Hewins, Ph.D. from
Approximately one month prior to her due date,                 Lakeville, MA. Plaintiff’s neurology expert: Steven H.
the plaintiff awoke with a severe headache which               Horowitz, M.D. from Yarmouth, ME. Plaintiff’s life care
she believed was a migraine. When she could not                planner expert: Ann White, R.N. from Newton, MA.
relieve the severe pain with medication she went to            Defendant’s neurology expert: Joseph G. D’Alton,
the hospital. The plaintiff’s blood pressure was               M.D. from Framingham, MA. Defendant’s ob/gyn
high and the headache continued despite the                    expert: Thomas F. Halpin, M.D. from Shrewsbury, MA.
administration of additional medication. During the
night, the plaintiff became unresponsive and there             Monson vs. Konig, et al. Case no. CV2003-01755;
was a decline in fetal heart rate. An emergency C-             Judge Tucker.
section was performed on the plaintiff. A CT-scan              Attorneys for plaintiff: Anne Marie Maguire, Gregg J.
taken after the birth indicated that the plaintiff was         Pasquale and Melissa A. White of Keches & Mallen in
suffering from a large grade V acute intracranial
                                                               Taunton, MA.
bleed which involved acute hemorrhage into the
left basal ganglia, frontal lobes and ventricular              Attorneys for defendants: Charles P. Reidy and Kevin C.
system. There was hydrocephalus and mass effect                Reidy of Martin, Magnuson, McCarthy & Kenney in
according to medical records.                                  Boston, MA.
The plaintiff underwent an emergency craniotomy and
was in a coma for several weeks thereafter. She has            COMMENTARY
sustained permanent brain injury and can no longer             The verdict was broken down as follows: $2,750,000 to the plaintiff mother
care for herself or her children. The plaintiff brought suit   for past pain and suffering; $1,500,000 to the plaintiff for future pain and
against the defendant ob/gyn, alleging negligence in           suffering; $170,000 to the plaintiff for future lost earning capacity;
failing to manage the obvious preeclampsia which re-           $1,000,000 to the first child for loss of consortium; $500,000 to the second
sulted in the brain bleed and resulting brain damage.          child for loss of consortium and $500,000 the plaintiff husband for loss of
The plaintiff alleged that the defendant failed to obtain      consortium.
a neurological consultation and failed to administer           The female plaintiff suffers from partial right paraparesis, short term mem-
any medication to lower the plaintiff’s blood pressure.        ory loss and vision damage. She requires around-the-clock care and is con-
                                                               sidered a danger to herself and her two children.
The defendant denied the allegations and maintained            The plaintiff argued that the defendant could have prevented the brain
that there was no deviation from acceptable stan-              bleed by monitoring and medicating her for the preeclampsia. The plaintiff
dards of care. The defendant maintained that she was           alleged that she was not properly informed in order to give informed con-
properly monitoring the plaintiff’s condition.                 sent regarding the issue of preeclampsia in a counter to the defendant’s ar-
The matter proceeded to trial. The jury returned its ver-      gument that the plaintiff and her husband desired to wait as long as
dict in favor of the plaintiff and against the defendant.      possible before delivering the child, inferring that they were aware of the
The jury awarded the plaintiff and her family the total        plaintiff’s condition. The defendant argued that the plaintiff’s medical his-
sum of $10,700,000.                                            tory of migraines made the diagnosis and treatment of the plaintiff’s
                                                               preeclampsia more difficult.




2                                                                                                             Volume 3, Issue 8, March 2010
SUMMARIES WITH TRIAL ANALYSIS


                                                     $10,500,000 VERDICT – SURGERY – FAILURE TO
                                                     ADVISE PLAINTIFF THAT POSITIVE MARGINS
                                                     REMAINED AFTER LUMPECTOMY – FAILURE TO
                                                     PERFORM ADDITIONAL SURGERY – METASTASIS
Founder                                              FROM STAGE II TO STAGE IV BREAST CANCER.
    Ira J. Zarin, Esq.
Editor in Chief                                  Bronx County, New York
    Jed M. Zarin                                 This was a medical malpractice action in which the plaintiff, in
ContributingEditors                              her mid 50s, contended that the defendant breast surgeon
    Brian M. Kessler, Esq.                       negligently failed to either advise the plaintiff that the pathology
    Laine Harmon, Esq.                           that returned after a lumpectomy showed positive margins for
    Deborah McNally, Paralegal                   cancer and negligently failed to perform additional surgery. The
    Cathy Schlecter-Harvey, Esq.                 plaintiff was also treated by the medical oncologist, and
    Julie L. Singer, Esq.                        radiation oncologist who were members of the same group. The
    Tammy A. Smith, Esq.                         plaintiff maintained that these two physicians also failed to
 Business Development                            advise her of the findings. The defendants contended that they
    Gary Zarin                                   had advised both the plaintiff and her husband of the findings.
    garyz@jvra.com                               The defendants further maintained that the underlying health
Production Coordinator                           issues, including cardiac disease and diabetes rendered
    Laura Huemer                                 additional surgery contraindicated.
Assisted Search                                  The evidence disclosed that the plaintiff presented in the summer of
    Tim Mathieson                                2006, with a palpable lump in the breast and that following her re-
Court Data Coordinator                           view of appropriate diagnostic tests, recommended that the plaintiff
    Jeffrey S. Zarin                             either undergo a mastectomy or lumpectomy. The plaintiff chose the
Customer Services                                lumpectomy, which was performed on 7-24-06. The defendant
    Meredith Whelan                              breast surgeon believed, based on gross examination, that the senti-
    meredithw@jvra.com                           nel nodes and her surgical margins were negative. Four days later,
Circulation Manager                              the defendant learned that one of the three nodes submitted were
    Ellen Loren                                  positive and several days thereafter, the pathology report returned,
Proofreader                                      reflecting that the margins remained positive for cancer.
    Cathryn Peyton
                                                 Approximately three months before the lumpectomy, the plaintiff
Web Development &                                had undergone a quadruple bypass. She required hospitalization on
Technology                                       7-26-06, for respiratory pneumonia, and on 8-15-06, the plaintiff re-
    Juris Design
                                                 quired two angioplasties and stenting because the arteries had
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                                                 become occluded again.
Published by Jury Verdict Review                 The plaintiff maintained that irrespective of the cardiac difficulties,
Publications, Inc. 45 Springfield                she clearly required additional surgery. The plaintiff’s cardiologist con-
Avenue, Springfield, NJ 07081
                                                 tended that by mid-late September, the plaintiff would have been
www.jvra.com
                                                 healthy enough to undergo surgery. The plaintiff’s oncologist main-
Main Office:                                     tained that a PET-scan taken at this time showed no indications of
973/376-9002 Fax 973/376-1775                    metastasis, and that although the test is not conclusive, it was likely
Circulation & Billing Department:                that the cancer had yet to spread. The plaintiff’s oncologist testified
973/535-6263                                     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 pro-
National Medical Malpractice                     gressed to Stage IV, and involved both lungs, the liver, several ribs,
Review & Analysis is a trademark                 both femurs and to portions of the spine. The plaintiff’s expert main-
of Jury Verdict Review Publications,             tained that there is now virtually no chance of survival.
Inc.
Reproduction in any form with out the            The defendant breast surgeon denied that additional surgery would
expresswritten permission of the                 have benefited the plaintiff and contended that it was likely that the
publisher is strictly prohibited by law.         cancer had already metastasized. The defendant also maintained
National Medical Malpractice                     that the cardiac risk rendered surgery contraindicated. The defen-
Review & Analysis (ISSN XXXX-XXXX)               dant medical oncologist saw the patient, determined that chemo-
is published monthly at the                      therapy would be too dangerous because of the cardiac difficulties
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Springfield, NJ and at additional                The defendants each contended that they had informed both the
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                                                 the pathology report with them line by line. The plaintiff denied that


National Medical Malpractice Review & Analysis                                                                                3
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS

such advisements were given and pointed out that             REFERENCE
there were no indications that she sought a second           Plt: Quillen. Index no. 30085/06; Judge Stanley Green,
opinion. The plaintiff argued that it was clear that if a    4-09.
patient with cancer had been told that the margins af-
ter lumpectomy were not clean, but that other health         Attorney for plaintiff: David J. Dean of Sullivan, Papain,
conditions rendered additional surgery contraindi-           Block, McGrath & Cannavo, PC in New York, NY.
cated, the patient would seek a second opinion.
                                                             COMMENTARY
The plaintiff further argued that the jury should consider
that the defendants did not consult with a cardiologist      The defendants had each contended that they went through the pathology
and contended that their contention that they advised        report line by line with both the patient and her husband and explained to
the plaintiff that further surgery was contraindicated be-   her that although the margins remained positive for cancer, the underlying
cause of her health difficulties should be rejected. The     cardiac problems rendered additional surgery contraindicated. The plaintiff
plaintiff’s oncologist maintained that had the cancer        and her husband vigorously denied having been advised that the margins
been successfully addressed at the time of the initial       were not clean and that the defendants believed that additional surgery
diagnosis, she would have had a 50-65% chance of             would be too dangerous to perform. The plaintiff strenuously emphasized
survival and that because of the metastasis and pro-         that common sense and logic dictated that a patient given this type of news
gression to State IV, such chances have virtually been       would seek a second opinion, arguing that the evidence that she did not
eliminated.                                                  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
The jury found the defendant breast surgeon 60% neg-         cardiologist regarding the question of surgery. Finally, the plaintiff also ar-
ligent, the medical oncologist 30% negligent and the         gued that although the defendant breast surgeon’s notes reflected that she
radiation oncologist 10% negligent. They then                had read the pathology report, they did not mention the advisements
awarded $10,500,000, including $4,000,000 for past           purportedly given to the plaintiff and her husband.
pain and suffering, $6,000,000 for future pain and suf-
fering, $100,000 to the husband for past loss of ser-
vices and $400,000 to the husband for future pain and
suffering.

    $9,864,176 VERDICT – SURGERY – FAILURE TO PROPERLY PLACE CANNULA FROM
    BYPASS MACHINE – STROKES TO BOTH SIDES OF BRAIN – KIDNEY AND LIVER SHUT
    DOWN – PARAPLEGIA – LACK OF BLADDER AND BOWEL CONTROL IN 33-YEAR-OLD
    MOTHER FOLLOWING MITRAL VALVE SURGERY.
Fayette County, Kentucky                                     As a result of the improper positioning of the cannula,
The 33-year-old single mother underwent a                    the plaintiff sustained excess blood flow in her right arm
cardiac catherization procedure on April 12, 2006,           and lack of blood flow to her brain and other organs.
which revealed a regurgitating mitral valve and a            She sustained a bilateral stroke and her kidneys and
related enlarged heart muscle. The defendant                 liver ceased to function. She is presently a paraplegic
recommended and performed bypass surgery on                  with right sided brain stroke and related left sided arm
April 19, 2006, the goal of which was to repair the          weakness. She is confined to a wheelchair. She lacks
valve which would also likely correct the enlarged           both bladder and bowel control. The plaintiff also suf-
heart muscle. The heart valve repair was an                  fers from depression issues.
unequivocal success and the surgery took less than
one hour. The surgical team, however, was unable             The plaintiff brought suit against the surgeon, the anes-
to get the plaintiff off the bypass pump. Her heart          thesiologist and the perfusionist, alleging negligence in
did not start beating as was expected during the             failing to recognize the signs and symptoms associ-
attempt to wean her from the bypass machine.                 ated with the lack of blood and oxygen to her brain,
                                                             organs and excess blood flow to her arm, which re-
This process commenced approximately one hour af-            sulted in her injuries. The plaintiff presented evidence
ter the plaintiff had been placed on the pump. The           that cannula malpositioning is one common recog-
blood pressure measured in the plaintiff’s right hand        nized bypass complication that requires immediate
was over double the blood pressure in her aorta. The         recognition and correction or the results, such as in the
blood pressure is typically higher in the aorta because      plaintiff’s case, are catastrophic in nature. The plaintiff
that is where the hose is placed that delivers the blood     presented expert testimony that that the blood was
pumped from the bypass machine. Over an hour of              misdirected into one of three branch vessels located
attempting to wean the plaintiff from the machine and        at the arch of the plaintiff’s aorta which caused too
two hours after the surgery commenced, the defen-            much blood to flow into her right hand and systemic
dant surgeon finally adjusted the hose supplying blood       low flow into the rest of her body.
from the bypass machine. When the defendant pulled
the cannula back they were able to remove the plain-         The defendant surgeon denied the allegations and
tiff from the bypass machine approximately ten               maintained that the cannula was properly placed at
minutes later.                                               all times and this was verified by the testing performed
                                                             during the surgery. The defendant argued that the inju-
                                                             ries sustained by the plaintiff were related to an aortic
                                                             dissection or an embolic particulate. The defendant
4                                                                                                            Volume 3, Issue 8, March 2010
                                                                                  SUMMARIES WITH TRIAL ANALYSIS

also attempted to allocate liability to the anesthesiolo-      COMMENTARY
gist and the perfusionist who already had entered into         The plaintiff videotaped the trial and played back 57 minutes of trial video
confidential settlement agreements prior to trial.             clips during its two hour closing argument. This was a unique way of re-
At the conclusion of the eight day trial, the jury deliber-    freshing the jury’s recollection of the key testimony and parts of the trial in
ated for three and a-half hours before returning their         an accurate and undisputable way. The defendant had testified that the
verdict. The jury found in favor of the plaintiff, assessing   malposition of the cannula was the sole complication of the surgery. The
liability as 31% to the defendant surgeon, 23% to the          plaintiff presented evidence that the plaintiff had asked the surgeon why he
anesthesiologist and 46% to the perfusionist. The jury         never said he was sorry and he testified that he didn’t tell her because “I
awarded the total of 9,864,175 in gross. The net award         have not had the opportunity”. The plaintiff played this clip at the end of
to the plaintiff as to the defendant surgeon was               the closing, which emphasized the point that the defendant had ample time
$3,057,894.                                                    over the 30 days in the hospital and 30 days in rehabilitation to tell the
                                                               plaintiff that he was sorry.
REFERENCE                                                      The plaintiff presented expert testimony to demonstrate that there were nu-
                                                               merous other red flags which should have signaled a problem with the posi-
Plaintiff’s cardiothoracic surgery expert: Alexander           tion of the cannula. An early blood gas report of a test on the plaintiff’s
Geha, M.D. from Rancho Santa Fe, CA. Plaintiff’s               blood revealed that she was suffering from acidosis. The perfusionist treated
cardio anesthesiologist expert: Mark Comunale, M.D.            the blood with sodium bicarbonate on four different occasions during the
from Claremont, CA. Plaintiff’s neurologist expert:            surgery and failed to inform the surgeon. The plaintiff presented evidence
Edward Feldman, M.D. from Providence, RI.                      that the anesthesiologist had left the room during this incident where he
Defendant’s cardiothoracic surgery expert: Eric                was having coffee and socializing with peers. The plaintiff alleged that the
Hanson, M.D. from Troy, MI.                                    defendant violated hospital policy and the standard of care. The perfusionist
Satterwhite vs. Michael Sekela, M.D., et al. Case no.          testified that there were approximately 25 different red flags that were
06-CI-5075; Judge James D. Ismael, Jr.                         missed by the defendants.
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.

      $4,519,500 VERDICT PLUS INTEREST – NURSING/HOSPITAL NEGLIGENCE – FAILURE
      TO SET BED ALARM – FAILURE TO MONITOR HIGH FALL RISK PATIENT – FRACTURED
      HIP.
Providence County, Rhode Island                                The defendant denied the allegations of negligence.
The 63-year-old male plaintiff suffered a mild                 The defendant argued that there was no deviation
stroke in September, 2005. He fell and found that              from acceptable standards of care since the decision
he had suffered left side weakness. He was                     as to the fall risk of patients was left to the nurses’
dropped off at the defendant hospital and entered              discretion.
the hospital of his own accord. At the time of
                                                               The matter was tried for approximately three weeks. At
admission he was identified as a high fall risk
because of the stroke, the left sided weakness and             the conclusion of the trial, the jury deliberated for ap-
a prior history of falling. He was admitted to the             proximately two days and returned its verdict. The jury
intensive care unit at the defendant hospital. All of          found in favor of the plaintiff. The jury awarded the
the hospital beds in this unit are equipped with               plaintiff the sum of $4,519,500, consisting of
bed exit alarms. The alarms send an audible alert              $2,000,000 for pain and suffering, $700,000 for future
for the patient, if they attempt to exit the bed and           medical care and $750,000 to the plaintiff’s wife for
also sends an alert to the staff, so they are aware            her loss of consortium claim.
of a patient’s actions. The nurses in the intensive
care unit failed to activate the bed alarm despite             REFERENCE
the fact that the plaintiff was admitted as a high             Plaintiff’s nursing care expert: Patricia Noah, M.S.N.,
fall risk patient.                                             R.N., C.N.R.N. from Burgettstown, PA. Plaintiff’s
The plaintiff woke in the middle of the night on his sec-      geriatric medicine expert: Jeffrey M. Levine, M.D. from
ond night in the hospital and had to use the restroom.         New York, NY. Plaintiff’s rehabilitation expert: Jon
As he got out of bed, thinking he was home, he fell. He        Mukand, M.D. from Providence, RI.
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 hospi-        Attorneys for plaintiff: Neil F.X. Kelly and Mark Brice of
tal, alleging negligence. The plaintiff alleged that the       Decof & Decof in Providence, RI. Attorney for defendant:
hospital was negligent in failing to properly monitor the      William F. White of White, Carlin & Kelly in Providence,
plaintiff who was categorized as a high fall risk and in       RI.
failing to activate the bed exit alarm. The plaintiff’s wife
brought a claim for loss of consortium.


National Medical Malpractice Review & Analysis                                                                                               5
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS


COMMENTARY                                                                         The jury found that the hospital failed to properly train its staff with regard
There are motions post-trial for judgment as a matter of law and a motion          to high fall risk precautions. Further, the jury ruled that the staff did not
for a new trial. These motions are presently pending. The court has awarded        properly comply with the standard of care when they failed to activate the
statutory interest in the amount of $837,000 for the plaintiff and $232,500        bed exit alarm on the plaintiff’s bed. The plaintiff needs a wheelchair to am-
for the plaintiff’s wife. The plaintiff experienced complications as a result of   bulate. He has suffered nerve damage and infections as a result of the inci-
the fall. The surgery on his hip could not be performed until several days af-     dent. He continues to experience chronic pain on a daily basis.
ter 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.

      $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.
Fort Bend County, Texas                                                            The plaintiff continued to suffer from complications, in-
The plaintiff brought suit for medical malpractice                                 cluding an office visit in which lettuce and bowel con-
after undergoing a routine surgical procedure of                                   tent were found exuding from the stomach. On
the small bowel that resulted in an infection and                                  January 14, 2004, a third surgery was performed; yet,
numerous abscesses, debridements,                                                  the plaintiff suffered from and was treated for multiple
hospitalizations and subsequent surgeries. The                                     abscesses and infections which resulted in numerous
plaintiff alleged that during the procedure, the                                   hospitalizations. This continued until the plaintiff’s family
defendant performed a surgery which left a                                         doctor, an internist, researched and paid for the plain-
residual leak in the bowel and afterward failed to                                 tiff’s trip to Mr. Sinai Hospital in New York where he un-
appreciate the nature of an ongoing infectious                                     derwent another resection surgery that according to
process and failed to refer the plaintiff. The                                     the plaintiff, was finally done correctly and sufficiently
plaintiff alleged he lost approximately three feet of                              treated his symptoms.
his small bowel due to the defendant surgeon’s
negligence, which in turn caused him to develop                                    The defendant made no offers to the plaintiff, and the
short gut syndrome. The defendant argued that the                                  plaintiff asked of the jury $794,000 in medical costs in
problems the plaintiff experienced post-surgery                                    addition to claims for past and future physical impair-
were indicative of the plaintiff’s diagnosis of                                    ment, physical pain and suffering and mental anguish.
Crohn’s Disease and were not negligence on his                                     After more than five hours of deliberation, the jury
part.                                                                              awarded a total of $4,044,051.11: $794,051 for past
The male plaintiff, who was 41-years-old at the time of                            medical care, $2,000,000 for future physical impair-
trial, had undergone a bowel resection in 1993, which                              ment, $250,000 for past physical impairment,
removed a blockage, and he had been asymptom-                                      $500,000 for future physical pain and suffering and
atic for ten years. In 2003, the plaintiff began experi-                           mental anguish and $500,000 for past physical pain
encing pain in his abdomen and was scheduled for                                   and mental anguish.
routine colon resection surgery on August 25, 2003. The
surgery would typically require a three day hospitaliza-                           REFERENCE
tion in the small, six bed hospital in which the defen-                            Plaintiff’s gastroenterology expert: Dr. David Sachar,
dant was part owner and investor; yet, because of                                  M.D. from New York, NY. Plaintiff’s general surgery
complications, the plaintiff remained in the hospital for                          expert: Dr. Adrian Greenstein, M.D. from New York,
ten days.                                                                          NY. Defendant’s colorectal surgery expert: Dr. Eric
                                                                                   Haas, M.D. from Houston, TX. Defendant’s surgery
The plaintiff developed an infection, evidenced by a                               expert: Dr. Gary Stein, M.D. from Sugarland, TX.
fever of 104 degrees, and he was re-operated on Au-
gust 27, 2003. The defendant physician testified he                                William J. Orton vs. Guillermo Ponce De Leon, M.D.
could not find anything wrong with the plaintiff at that                           Case no. 05-CV-146040; Judge Clifford J. Vacek, 9-23-
time and therefore, concluded there were no leaks or                               09.
infections. The plaintiff contended that upon subse-                               Attorneys for plaintiff: Charles Soechting and Pat Kelly of
quent visits to numerous other physicians, they addi-                              The O’Quinn Law Firm in Houston, TX. Attorneys for
tionally relied upon the defendant’s finding of “no                                defendant: Trace Sherer and Divya Chundru of Harris,
leak,” which the plaintiff claimed contributed to the                              Hillburn and Sherer in Houston, TX.
large amount of time that lapsed until he was
successfully treated.




6                                                                                                                                 Volume 3, Issue 8, March 2010
                                                                                                   SUMMARIES WITH TRIAL ANALYSIS

COMMENTARY                                                                       dant’s counsel responded by claiming the jury should believe his client and
This large verdict amount was awarded in a traditionally conservative dis-       his local expert witnesses and not “those New York doctors.” One of the
trict and was virtually the entire amount asked by the plaintiff. A factor in    plaintiff’s experts had never before testified in a malpractice case and the
the verdict was the plaintiff’s documented refutation of one of the defen-       other had only done so three times before, despite their extensive careers,
dant’s primary arguments made during opening statements that the plain-          which made them appear to the jury as more than simply hired experts. The
tiff’s own non-compliance played a part in the complications he experienced.     defendant expert, who was a business partner of the defendant in the surgi-
The plaintiff displayed documented evidence that the missed doctor’s ap-         cal clinic, made lofty claims of being one of the top gastroenterologists in
pointments alleged by the defendant were because the plaintiff was hospi-        the Houston area, yet the plaintiff established that the surgical expert for
talized during such appointments as a result of complications alleged to         the defendant had, in fact, been out of his residency two months at the time
have been caused by the defendant.                                               of the initial surgery.
The plaintiff’s attorney believes the jury was angered by the defendant sur-
geon’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 defen-

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


National Medical Malpractice Review & Analysis                                                                                                              7
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS


REFERENCE                                                                   Despite her age, the decedent was portrayed as an individual who enjoyed
Plaintiff’s anesthesiologist expert: Lorne B. Sheren                        life, exercised regularly, participated in line dances, drove her friends to din-
from Chatham, N.J. Defendant’s anesthesiologist                             ner outings and maintained an active social life.
expert: Robert Salvage from Fairless Hills, PA.                             It was fairly clear-cut that the decedent’s death from drug overdose deliv-
                                                                            ered to her spinal column resulted from negligence on the part of at least
Kessler vs. Berman. Case no. 07-04-02073; Judge Mat-
                                                                            one of the defendants. The trial dynamics may have been altered by a pre-
thew D. Carrafiello, 6-23-09.
                                                                            trial settlement on the part of the co-defendant nurse anesthetist who actu-
Attorney for plaintiff: Brian S. Chacker of Gay, Chacker                    ally delivered the fatal bolus of pain medication. Evidence showed that the
& Mittin, P.C. in Philadelphia, PA. Attorneys for                           nurse anesthetist had been in a surgery, left the surgery to administer the
defendant anesthesiologist: Gary Samms and James E.                         decedent’s medication and then returned to the surgery about three minutes
Kurack Jr. of Obermayer, Rebmann, Maxwell & Hippel                          later.
in Philadelphia, PA. Attorneys for (settling) nurse                         The nurse anesthetist testified very honestly that he had made a mistake
anesthesiologist and his employer: Jacqueline Drygas                        and offered his apologies to the decedent’s family. Counsel for the nurse an-
and James Kilcoyne of Kilcoyne & Nesbitt in Plymouth                        esthetist appeared for trial and the jury was unaware of his settlement.
Meeting, PA. Attorney for (settling) defendant, Nazareth Although the jury held the nurse anesthetist primarily responsible, it still as-
Hospital: Cynthia Brennan of Kane, Pugh, Knoell, Troy & sessed 35% negligence against the defendant anesthesiologist, apparently
Kramer in Philadelphia, PA.                                                 accepting the plaintiff’s contention that the spinal catheter should have been
                                                                            clearly communicated or marked to avoid the type of mistake that occurred.
COMMENTARY                                                                  The settling hospital, Nazareth Hospital, has reportedly changed its policies
The unanimous Philadelphia County jury hearing this case apparently be-     regarding the use of spinal catheters after this incident to ensure that the
lieved that the decedent’s age, at 87, was not a detriment to recovery of a catheters are clearly marked and that a patient be closely monitored for at
substantial damage award. In this regard, plaintiff’s counsel called one of least 15 minutes following a bolus administration. The hospital disputed vi-
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.


      $2,050,000 RECOVERY – ANESTHESIOLOGY – FAILURE TO PROPERLY ADMINISTER
      ANESTHETIC AGENT DURING ANAL FISTULA SURGERY – RESPIRATORY ARREST –
      DEATH SEVERAL DAYS LATER.
Queens County, New York                                                        defendant’s records did not reflect that he realized
In this action, the plaintiff contended that the                               there were any difficulties before the surgical drapes
defendant anesthesiologist negligently failed to                               were removed and contended that with proper moni-
wait a sufficient period after administering an                                toring, the defendant would have realized that the pa-
epidural anesthetic into the spine before having                               tient required immediate intubation.
the patient lie down while a surgical repair of anal
                                                                               The defendant contended that he did ascertain that
fissures was performed. The plaintiff contended
that as a result, the anesthetic agent prevented the                           the patient could not breathe and that he made im-
nerves which allow for breathing to function and                               mediate attempts to place a mask on the patient and
caused respiratory arrest. The patient died several                            administer oxygen by bag, but that the plaintiff could
days later because of the injuries. The decedent                               not be revived. The plaintiff maintained that even if
was collecting social security disability because of                           such attempts were made, the defendant was clearly
injuries sustained in an automobile accident.                                  negligent because the chances of successfully admin-
                                                                               istering oxygen with a bag and mask while the patient
The surgery lasted ten minutes. Prior to the arrival of the                    was face-down were very low.
non-party surgeon, the defendant anesthesiologist had
administered an epidural injection of the anesthetic                           The decedent left a wife and a son. The plaintiff con-
agent. The agent is denser than spinal fluid, and there-                       tended that based upon a mentioning of the patient
fore takes a few minutes to descend to the area that                           resisting when the respiratory therapist attempted to
innervates the surgical field. The surgery is then per-                        change his mask the following day, the decedent ex-
formed with the patient prone on his front. The plaintiff                      perienced some conscious pain and suffering.
maintained that the patient was prematurely placed in                          The evidence disclosed that the decedent had been
the prone position and covered with surgical drapes                            declared disabled by the Social Security Administration
with the operative area protruding. The plaintiff con-                         some years earlier because of injuries sustained in a
tended that when the surgery was completed and the                             motor vehicle accident. The plaintiff contended that
drapes removed, it was noted that the patient was                              the death occasioned approximately $215,000 in re-
cyanotic. A code was called and resuscitation efforts                          duced benefits. The plaintiff would have also made a
were unsuccessful.                                                             claim for approximately $180,000 in loss of pension
The plaintiff contended that failing to wait for the anes-                     benefits.
thetic agent to descend to the operative field consti-
tuted a deviation. The plaintiff also maintained that the



8                                                                                                                             Volume 3, Issue 8, March 2010
                                                                                        SUMMARIES WITH TRIAL ANALYSIS

The decedent left a wife and two sons. The plaintiff                   Attorney for plaintiff: Philip A. Russotti of Wingate,
contended that the decedent was very close with his                    Russotti & Shapiro in New York, NY.
family and that the loss of parental nurture and guid-
ance by the sons was extensive. One of the sons would    COMMENTARY:
have testified that he and his father were avid fisher-  The decedent had been declared totally and permanently disabled by the
men, and described the manner in which they would        Social Security Administration some years earlier and the plaintiff’s claims
fish for different types at different times of the year. for economic losses revolved around reduced social security and pension
The case settled prior to trial for $2,050,000.          benefits, as well as the pecuniary value of household services and guidance
                                                         and advice. It is felt that the plaintiff was able to obtain a particularly signif-
REFERENCE                                                icant recovery in view of these limitations and the contrast between the rela-
                                                         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.


      $1,590,000 JUDGMENT FOLLOWING BENCH TRIAL – OB/GYN – BIRTH INJURY –
      FAILURE TO IDENTIFY RISK OF DYSTOCIA FROM ULTRASOUND – BRACHIAL PLEXUS
      INJURY – NERVE GRAFT SURGERY.
New Haven County, Connecticut                                          care planner expert: Edmund Provder from Lodi, NJ.
The plaintiff mother was under the care of the                         Plaintiff’s accounting expert: Richard A. Royston,
defendants for her pregnancy with the infant                           C.P.A. from Glastonbury, CT. Defendant’s ob/gyn
plaintiff. She was assigned a due date of December                     expert: Robert Dropkin, M.D. from Albany, NY.
22, 2001, by the defendants. The plaintiff went to                     Defendant’s pediatric neurology expert: Paul Chervin,
the hospital on December 30th, to deliver the                          M.D. from Woburn, MA. Defendant’s life care planner
infant. During the delivery, the child suffered a                      expert: Beth Lee Greenbaum, Ph.D. from Pptomac,
brachial plexus injury and had to undergo nerve                        MD.
graft surgery to repair the shoulder. The plaintiff                    A.P. vs. Helm & Helm P.C. and Joseph Peccerillo, M.D.
was also diagnosed with Horner’s Syndrome.
                                                                       Case no. CV03-0475872-S; Judge Angela C. Robinson.
The plaintiff alleged that during the pregnancy, an ul-
                                                                       Attorney for plaintiff: John-Henry Steele of Dey Smith
trasound was performed which was suspicious for
                                                                       LLC in Milford, CT. Attorney for defendants: Thomas J.
macrosomia, yet the defendants failed to repeat the
                                                                       Mortati of Burke, Scolamiero, Mortati & Hurd in Albany,
ultrasound and failed to identify the risks of shoulder
                                                                       NY.
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      COMMENTARY
to the birthing process.                                   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 deliv-
ing 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 shoul-
during the birthing process so she could make an in-       der 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 ultra-
alleged that the doctor that delivered the child was       sound to confirm the size of the child and to potentially re-evaluate the de-
negligent 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 de-     there 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 matter was tried before the bench and the judge        the defendants failed to even advise her that dystocia was possibility. She
returned a verdict in favor of the plaintiff mother and    alleged that she was unable to give informed consent since she was not ap-
infant, awarding the sum of $1,590,000.                    prised of these facts and not given a choice as to whether she would proceed
                                                           with a vaginal birth or a cesarean birth. The plaintiff alleged that the child
REFERENCE                                                  has visible defect in the left arm and shoulder as a result of the injury sus-
                                                           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                                                                                            9
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS


     $1,500,000 VERDICT – HOSPITAL NEGLIGENCE – FAILURE TO DIAGNOSE SEVERE
     CARDIAC DISEASE AND HIGH RISK OF HEART ATTACK – FAILURE TO ORDER
     APPROPRIATE DIAGNOSTIC PROCEDURES – PREMATURE DISCHARGE – FATAL HEART
     ATTACK FOUR HOURS AFTER DISCHARGE – WRONGFUL DEATH AT AGE 59.
Westmoreland County, Pennsylvania                         death was heart attack. The plaintiff’s experts testified
The decedent was a 59-year-old female in                  that pain medication, delivered through a duragesic
February 2005 when she presented to the                   patch prescribed by a non-party physician for an unre-
defendant hospital with an allergic reaction to one       lated condition, was within therapeutic levels.
of her medications. The plaintiff alleged that, when
                                                          The plaintiff maintained that appropriate monitoring
the decedent complained of chest pain, the
                                                          and cardiac work-up would have revealed the dece-
defendant attending physician was negligent in
discharging her without an appropriate cardiac            dent’s severe heart condition and allowed appropriate
work-up. The plaintiff also contended that a co-          hospitalization and treatment to prevent her fatal heart
defendant, the decedent’s treating family                 attack.
physician, failed to properly monitor the decedent        The plaintiff’s expert testified that the defendant attend-
after prescribing nitroglycerin for her heart. The        ing physician deviated from the required standard of
plaintiff claimed that the decedent suffered a fatal      care in failing to perform a full cardiac work-up on the
heart attack some four hours after her hospital           decedent prior to her discharge from the hospital. The
discharge. The hospital where the decedent was
                                                          defendant attending physician, Horne, maintained
treated was named as a defendant based on the
                                                          that the decedent’s treatment and discharge were ap-
allegation that hospital nurses failed to timely
report the decedent’s symptoms to the attending           propriate in light of her condition at the time and that
physician. The defendants argued that the plaintiff       her subsequent heart attack was not predictable. The
was appropriately treated for an allergic reaction        defendant family physician, Berkebile, argued that he
and showed no evidence of the impending heart             appropriately treated the decedent and prescribed
attack. The defense maintained that the decedent’s        medications for her heart and for her high cholesterol.
death resulted from overdose of pain medication           The defense showed that shortly prior to her hospital
and that the plaintiff could not establish that the       admission, the decedent had requested an increase
death was related to preexisting cardiac disease.
                                                          in her duragesic pain patch. Medical records showed
Evidence showed that approximately a month before         that the decedent advised the prescribing on-party
the decedent’s death, she had been treated by her         physician that she was taking more than the prescribed
family physician, the defendant, Berkebile, for chest     dosage of the pain medication. The defendants con-
pain and was prescribed nitroglycerin for her heart. The tended that the decedent’s death may have been re-
plaintiff 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.
tension placing her in the high-risk category for heart   There were no toxicology tests performed to rule out
attack. The plaintiff alleged that the defendant,         pain medication overdose and the plaintiff could not
Berkebile, failed to adequately monitor the decedent’s establish that the death was caused by cardiac
heart condition and control her high cholesterol and      disease, according to the defense.
hypertension.
                                                          The jury found the defendant attending physician,
The decedent presented to the defendant hospital on Horne, 60% negligent, the defendant family physician,
February 14, 2005, with signs and symptoms of an al-      Berkebile, 25% negligent and the defendant, Excela
lergic reaction to medication which had been pre-         Health Latrobe Hospital, 15% negligent. The plaintiff
scribed by the defendant, Berkebile, for cholesterol.     was awarded total damages of $1,500,000. Delay
The allergic reaction was diagnosed and the dece-         damages were added to the recovery.
dent was admitted to the hospital under the care of
the defendant attending physician, Horne, who pre-        REFERENCE
scribed Benadryl for the allergic reaction. The following Plaintiff’s internist expert: Dean Nickles from
morning, February 15, 2005, the decedent com-             Oakland, CA. Plaintiff’s cardiologist/internist expert:
plained of chest pain. She was treated by the defen-      Jerome 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
stress test.                                              Miller vs. Excela Health Latrobe Hospital fka Latrobe
                                                          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 ex-
                                                          of 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



10                                                                                           Volume 3, Issue 8, March 2010
                                                                                                   SUMMARIES WITH TRIAL ANALYSIS

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



      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.
Philadelphia County, PA                                                          cated a TIA, which is an early warning sign of stroke
This medical malpractice action went to trial                                    and placed the plaintiff at a higher risk for future stroke.
against the defendant attending physician who                                    The plaintiff’s expert testified that the standard of care
cared for the plaintiff after he was admitted to the                             required that the defendant prescribe aspirin or an-
hospital with confusion, elevated blood pressure                                 other antiplatelet agent to reduce the risk of stroke. The
and numbness in his hands and feet. The plaintiff                                plaintiff showed that a consulting neurologist at the
alleged that he suffered a transient ischemic attack                             hospital had recommended that the plaintiff be
(TIA) and that the defendant negligently                                         started on aspirin, yet the aspirin was not prescribed by
discharged him without aspirin or other                                          the defendant.
antiplatelet medication to reduce the plaintiff’s risk
of a subsequent stroke. The plaintiff suffered a                                 The plaintiff was readmitted to the hospital on June 12,
debilitating stroke approximately a month after his                              2005 with slurred speech, blurred vision, eyes drifting to
discharge. The defendant argued that the plaintiff                               one side, numbness in his arms and facial droop. The
suffered from a hypertension crisis, not TIA and                                 plaintiff was diagnosed as having suffered a brain stem
that aspirin would not have prevented his stroke.                                stroke. The plaintiff alleged that the risk of stroke could
The defendant attending physician contended that                                 have been significantly reduced by the simple pre-
he appropriately stabilized the plaintiff at the                                 scription of aspirin.
hospital and instructed him to follow-up with his
primary care physician for on-going long-term                                    The plaintiff was unable to return to work and was
care. The plaintiff’s primary care physician and the                             placed on social security disability. His neuropsychiatrist
hospital where the plaintiff was treated settled the                             testified that the stroke has left the plaintiff with perma-
plaintiff’s claims for an undisclosed sum prior to                               nent brain damage and associated cognitive deficits.
trial.                                                                           The plaintiff is unable to live independently and will re-
                                                                                 quire ongoing care and treatment which will increase
The plaintiff was a 55-year-old mortgage broker on                               with age, according to his experts. The plaintiff was
May 6, 2005, when he was admitted through the                                    separated from his wife and lived in the basement of
emergency room to the hospital with complaints of                                daughter’s house until just before trial, at which time he
confusion, numbness in his hands and feet and blood                              moved in with a friend. The plaintiff made no claim for
pressure of approximately 200/100. The plaintiff was                             lost wages, but sought approximately $700,000 to
admitted to the hospital under the care of the defen-                            $800,000 in future life care.
dant attending physician. The plaintiff had a history of
hypertension, but reported that he had not taken his     The defendant testified that he believed that the plain-
hypertension medication for several months before the    tiff was suffering from a hypertension crisis and that the
admission. He was also a cigarette smoker, overweight    most important thing was to get his blood pressure un-
and suffered anxiety.                                    der control. The defense argued that malignant hyper-
                                                         tension 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 diag-
and 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                                                                                                             11
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS


The defense maintained that the defendant attending     COMMENTARY
physician took a reasonable approach in stabilizing the One of the plaintiff’s main exhibits during the trial of this medical malprac-
plaintiff and referring him back to his primary care phy-
                                                        tice action was an enlarged recommendation made by a consulting hospital
sician for on-going therapy, including stopping smok-   neurologist that the plaintiff be started on aspirin. The plaintiff maintained
ing, managing his weight, hypertension and blood        that the simple prescription would have greatly reduced the risk of the de-
pressure. Evidence showed that the plaintiff’s primary  bilitating stroke which subsequently occurred. Apparently the jury accepted
care physician had seen the plaintiff and ordered       the contention that it was better to err on the side of caution, as the aspirin
blood work between the plaintiff’s hospital admissions, was harmless, even if it was not effective in reducing the risk of future
but the plaintiff had not had the blood work            stroke. The jury determined that the defendant was negligent in not
completed.                                              prescribing the aspirin.
The jury found that the defendant was negligent, but    However, the jury may also have considered the other significant risk factors
that his negligence was not a factual cause in causing involved, and the fact that the plaintiff had not been compliant in taking his
injury to the plaintiff.                                medications in the past. Thus, the jury concluded that the defendant’s negli-
                                                        gence was not a factual cause of the plaintiff’s subsequent stroke.
REFERENCE                                               The defense theme centered on liability more so than damages and sought
                                                        to develop a clear division of labor between the defendant attending physi-
Plaintiff’s internal medicine expert: Ronald Banner     cian and the plaintiff’s (settling) primary care physician. The defense con-
from 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 be-
Attorneys for plaintiff: Nadeem A. Bezar and Allan H.
                                                        tween his hospital admissions and had ordered blood work, which the
Gordon of Kolsby, Gordon, Robin, Shore & Bezar, P.C. in
                                                        plaintiff did not have drawn.
Philadelphia, PA. Attorney for defendant: Michael E.
                                                        The case was tried over the course of six days, with a two hour deliberation
                                                        before the jury returned with a defense verdict.
McGilvery of Young & McGilvery in King of Prussia, PA.




12                                                                                                           Volume 3, Issue 8, March 2010
                                                                                                    VERDICTS BY SPECIALTY



                                  Verdicts by Category
                                                            DENTAL
      DEFENDANT’S VERDICT
Dental malpractice –                             The defendant installed an upper           At the conclusion of the trial, the jury
Prosthodontic negligence –                       arch bridge in the plaintiff’s mouth       returned its verdict in favor of the
Negligent installation of                        in 2003. The plaintiff alleged that        defendant and against the plaintiff.
bridgework – Headaches –                         following the installation of the          This was the second trial, during the
Aggravation of preexisting TMJ.                  bridge, she experienced head-              first trial, a mistrial was declared by
Jefferson County, Kentucky                       aches and an aggravation of her            the trial judge.
                                                 preexisting TMJ problem. She also
In this matter, the plaintiff                    alleged that her jaw was forced            REFERENCE
alleged that the prosthodontist                  backward by the installation of the        Plaintiff’s dental expert: Barry
was negligent in the installation                                                           Gibberman D.M.D. from Cincinnati,
                                                 bridge. The plaintiff sought the ser-
of a bridge which caused the                                                                OH. Defendant’s dental expert:
                                                 vices of another dentist who re-
plaintiff to suffer headaches and                                                           Brent Haeberle, D.M.D. from
an aggravation of a preexisting                  paired the bridge. The plaintiff still
                                                                                            Louisville, KY.
TMJ problem. The defendant                       complains of unceasing pain.
                                                                                            Patten vs. Piontek. Case no. 05-
denied the allegations of             The plaintiff brought suit against the                8182; Judge Gibson.
negligence and maintained that        defendant, alleging negligence.
there was no breach of the            The defendant denied the allega-                      Attorney for plaintiff: Allen McKee
standard of care.                     tions and maintained that the                         Dodd of Dodd & Dodd in Louisville,
                                                                                            KY. Attorney for defendant:
The female plaintiff, age 52, treated bridge was properly installed and                     Christopher P. O’Bryan of O’Bryan,
with the defendant prosthodontist.    there was no deviation from any                       Brown & Toner in Louisville, KY.
She had a history of unstable teeth. standard of care.

                                        EMERGENCY DEPARTMENT
      DEFENDANT’S VERDICT
Emergency department                             plaintiff returned to a different hospi-   ready occurred prior to her coming
negligence – Failure to diagnose                 tal less than one day later with con-      to the hospital and were not the re-
stroke in 15-year-old female.                    tinued and worsening complaints.           sult of any action or omission on the
                                                 She was diagnosed at that time with        part of the defendant.
Shelby County, Kentucky
                                                 ischemic stroke.
In this matter, the plaintiff                                                               The matter proceeded to trial. The
alleged that the defendant                       The plaintiff alleged that she sus-        jury returned its verdict in favor of
emergency room doctor failed to                  tained physical and cognitive de-          the defendant and against the
diagnose a stroke in the 15-year-                lays as a result of the delay in           plaintiff. Post trial motions were
old female plaintiff who                         diagnosis. The plaintiff brought suit      pending.
presented to the emergency room                  against the defendant, alleging that
after falling down stairs at her                 the defendant was negligent in fail-       REFERENCE
home. The defendant denied the                                         Plaintiff’s neurology expert:
                                                 ing to diagnose the plaintiff’s stroke.
allegations and disputed that                                          Seemant Chatuverdi, M.D. from
                                                 The plaintiff alleged that the defen-
there was any deviation from                                           Detroit, MI. Defendant’s ER expert:
                                                 dant should have administered an
acceptable standards of care in                                        Bruce Janiak, M.D. from Augusta,
                                                 MRI and kept the child overnight for
the treatment of the plaintiff.                                        GA. Defendant’s neurology expert:
                                                 observation.          Kenneth Gaines, M.D. from New
The 15-year-old female plaintiff pre- The defendant denied the allega- Orleans, LA. Defendant’s radiology
sented to the emergency room and tions and maintained that there was expert: Dennis Whalley, M.D. from
the defendant on December 27,                                          Louisville, KY.
                                                 no deviation from acceptable stan-
2005, after she complained that                  dards of care. The defendant main-         May vs. Wetherington. Case no. 06-
she fell down the stairs at her house            tained that the plaintiff failed to        0440; Judge Hickman, 3-13-09.
and then experienced arm pain.                   demonstrate any symptoms or                Attorneys for defendant: Scott W.
The defendant performed a CT-                    complaints which would indicate            Whonsetler and Robert Ott of
scan which was normal and re-                    stroke, especially in a 15-year-old.       Whonsetler & Johnson in Louisville,
leased the child with instructions to            The defendant further argued that          KY.
follow-up with her family doctor. The            any injuries from the stroke had al-



National Medical Malpractice Review & Analysis                                                                                      13
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS



                                HOSPITAL NEGLIGENCE
     $2,060,000 RECOVERY
Hospital negligence – Negligent       neither of the surgeons who per-          dants agreed to permit judgment in
credentialing and supervision –       formed the procedure had ever             the amount of $2,060,000 to be en-
Wrongful death of woman               performed that procedure before           tered against the hospital in favor of
following transabdominal              operating on the decedent. During         the plaintiff. The plaintiff had settled
laparoscopic cyroablation.            the surgery, the surgeons perforated      with the surgeons in a confidential
Brooke County, West Virginia          the decedent’s stomach and she            settlement prior to this matter.
                                      later died as a result of the infection
In this matter, the plaintiff         that developed.
alleged that the defendant
                                                                                REFERENCE
hospital was negligent in             The plaintiff alleged that the defen-     Plaintiff’s surgical expert: John
permitting the surgeons to            dant surgeons were negligent and          Edoga, M.D. from Morristown, NJ.
perform a procedure which             that the hospital was negligent for       Plaintiff’s hospital administration
neither had performed before          failing to properly credential and su-    expert: Arthur Shorr from
without properly supervising and      pervision the surgeons. The plaintiff     Woodland Hills, CA. Defendant’s
credentialing the surgeons. The       also alleged that the surgeons and        hospital administration expert:
defendant denied the allegations.     the hospital failed to inform the         Lynn Buchanan from TX.
The female decedent underwent a       plaintiff that the doctors had never      Haught vs. Weirton Medical Center.
procedure at the defendant hospi-     performed the procedure before            Case no. 07-C-41; Judge Arthur M.
tal called a transabdominal laparo-   and therefore, they did not have in-      Recht, 5-12-09.
scopic cyroablation to freeze a       formed consent from the
                                      decedent.                                 Attorneys for plaintiff: Christopher
lesion located on her kidney. The                                               Regan and Geoffrey Brown of
decedent’s doctors suspected that     The defendants denied the allega-         Bordas & Bordas in Wheeling, WV.
the lesion was cancerous, although    tions. The defendant hospital main-       Attorney for defendant: James J.
tests did not confirm that she had    tained that in lieu of peer review, it    D’Ambrose in Brockton, MA.
cancer. The plaintiff alleged that    held public meetings. The defen-

     DEFENDANTS’ VERDICT
Hospital negligence – Alleged         department guns because of                REFERENCE
negligent failure to prevent          work pressures and other causes           Plaintiff’s psychiatrist expert: Steven
suicide – Alleged failure to admit    of anxiety, the patient should            A. Fayer from New York, NY.
patient, a police officer, who        have been admitted. The triage            Defendants’ psychiatrist expert:
presents with complaints of           nurse contended that she so told          John O’Brien from Philadelphia,
severe anxiety and advises that       the other defendants who denied           PA.
he had previously secured his         being so advised.
weapons because of his                                                          Cillo vs. Morristown Memorial Hospi-
concerns.                          The defendants maintained that ir-           tal, et al. Docket no. MRS-L-2492-
                                   respective of this factor, admission         05; Judge W. Hunt Dumont, 9-09.
Morris County, New Jersey          was not justified. The defendants es-
                                                                                Attorney for mental health
The plaintiff contended that when tablished that the decedent had
the 39-year-old police officer     denied suicidal intent both that day         professional and psychiatrist:
presented to the emergency room at the hospital and the following               Michael S. Bubb of Bubb, Grogan &
with complaints of severe anxiety day during a phone call between               Cocca, LLP in Morristown, NJ.
and advised the triage nurse, his him and the hospital staff.                   Attorney for defendant triage nurse:
sister-in-law, that he had secured                                              Kenneth J. Fost in Bloomfield, NJ.
both his personal and              The jury found for the defendants.




14                                                                                              Volume 3, Issue 8, March 2010
                                                                                                 VERDICTS BY SPECIALTY



                              MEDICAL PROVIDER NEGLIGENCE
      $12,500,000 CONFIDENTIAL RECOVERY
Medical provider negligence –         inserted the feeding tube into the                 The plaintiff brought suit against the
Improper placement of feeding         plaintiff’s lung rather than his stom-             defendant medical provider, alleg-
tube – Respiratory arrest in infant   ach. No one discovered this error                  ing negligence and breach of the
– Oxygen deprivation – Cerebral       and the next three feedings were                   standard of care. The defendant
palsy.                                given to the plaintiff into his lung,              denied the allegations of negli-
Peoria County, Illinois               rather than his stomach. After the                 gence and disputed the nature
                                      third feeding, the plaintiff suffered              and extent of the plaintiff’s claim for
In this matter, the plaintiff         respiratory arrest. Emergency resus-               damages.
alleged that the defendant            citation efforts were undertaken, but
medical provider was negligent                                                           The parties eventually agreed to a
                                      were initially unsuccessful because
in the placement of a feeding                                                            confidential settlement of
                                      no one realized the scope of the
tube which caused respiratory                                                            $12,500,000. It is reported as the
arrest and resulting brain            problem at the time. When one
                                                                                         largest personal injury settlement in
damage. The defendant denied          health care provider inserted a
                                                                                         this county.
the allegations.                      chest tube into the infant’s lung for
                                      a possible pneumothorax and milk
The infant plaintiff was born on Oc-  immediately came spilling out, it                  REFERENCE
tober 5, 2003, and was several        became apparent to the staff that                  Keith Quadros, a minor by his par-
weeks premature, but otherwise        this was the originating problem.                  ent and next friend, Sunil Quadros
healthy. He was placed in the NICU The plaintiff was revived immedi-                     and Sunil Quadros, individually vs.
unit so that he would be able to      ately thereafter; however, the child               Undisclosed Medical Provider. Case
gain weight and develop further       had been deprived of oxygen suffi-                 information withheld, 5-5-09.
prior to discharge from the hospital. ciently long enough to suffer brain
At approximately three weeks of                                                          Attorneys for plaintiff: David J.
                                      damage. The plaintiff was                          Pritchard and Patrick A. Salvi of
age, a feeding tube was inserted so diagnosed with cerebral palsy as a
that the infant could receive routine result of the incident.                            Salvi, Schostok & Pritchard P.C. in
two hour feedings. The defendant                                                         Chicago, IL.



                                   NURSING HOME NEGLIGENCE
      $350,000 RECOVERY
Nursing home negligence –                        The records reflected that pressure     The plaintiff contended that the de-
Failure to develop and implement                 ulcers were first noticed were first    cedent was also malnourished, de-
decubitus ulcer plan despite                     noted prior to a hospitalization in     hydrated and had a MRSA
assessed risk upon admission –                   February of 2006. The plaintiff as-     infection. The plaintiff asserted that
Defendant’s negligence allegedly                 serted that the nursing home con-       these injuries, along with the deteri-
substantial factor in death of                   tinuously violated the standard of      oration in her physical and mental
patient.                                         care and nursing home policies          condition, contributed to cause her
                                                 and procedures by failing to de-        death on November 27, 2006. The
Cook County, Illinois                            velop and implement a plan of           plaintiff maintained that the pain
                                                 care to prevent these ulcers from       and suffering during the approxi-
The plaintiff contended that upon
her admission to the defendant                   worsening. The plaintiff contended      mate ten month stay was severe.
nursing home on June 15th, the                   that it was not until March 2006 that
                                                                                         The case settled prior to trial for
patient was identified as being at               the nursing home staff developed a
                                                                                         $350,000
risk for the development of                      care plan to address the dece-
pressure ulcers. The plaintiff                   dent’s worsening pressure ulcers. On
                                                 March 18th, the ulcer on the dece-      REFERENCE
maintained that despite her
known risk, the defendant                        dent’s back was documented as a         Case information withheld. Case
nursing home staff failed to                     Stage III and a sacral ulcer was        no. 2007 L 003778; 9-09.
develop and implement a care                     documented as a Stage II. The           Attorneys for plaintiff: Steven M.
plan to address this risk until                  plaintiff maintained that between       Levin and Michael Bonamarte of
March, well after the decedent                   March 18th and April 6th, her pres-     Levin & Perconti in Chicago, IL.
had developed serious pressure                   sure ulcers continued to worsen. On
ulcers on her back and sacrum.                   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.


National Medical Malpractice Review & Analysis                                                                                 15
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS



                                                 OB/GYN
     $4,230,000 VERDICT
University Center for                 them with minimal oversight from            amiss, and therefore, the statute of
Reproductive Health negligence –      UCI and medical center administra-          limitations had been running and
Theft of eggs, lack of consent for    tors until the center was closed in         had, in fact, expired years before.
egg transfers and                     1995 by a university official.              The defendants argued they did
misappropriation of eggs                                                          their best to contact patients with
resulting in live births.             Evidence that the physicians took
                                                                                  the limited records that remained
                                      human eggs without consent, fertil-
Orange County, California                                                         from the clinic.
                                      ized them and transferred the em-
This settlement resulted from a       bryos went undisputed by the                The defendants demurred to the
series of twelve cases brought by     defendants as the first round of liti-      complaint on statute of limitations
plaintiffs who had received           gation ensued. The defendants               grounds, which was sustained with-
treatment at the UCI Center for       contended they could not be held            out leave by the judge. The plaintiffs
Reproductive Health at either         vicariously responsible for the rene-       appealed and the decision of liabil-
Garden Grove Medical Center in        gade actions of the physicians. Yet,        ity was reversed by the Fourth District
Garden Grove, CA or Saddleback        in 1999, the defendants resolved            Court of Appeal on the grounds that
Memorial Medical Center in            approximately 125 cases for more            constructive suspicion based on
Laguna Hills, CA between 1987         than $20,000,000. An additional 38          publicity alone was insufficient to
and 1994. The plaintiffs brought      cases were resolved for a waiver of         trigger the statute of limitations. The
suit against the defendant board      costs or nominal settlement                 two parties then engaged in a se-
of regents who recruited two
                                      payments.                                   ries of five mediations and settled
physicians to direct the center for
                                                                                  for amounts ranging from $45,000
reproductive health, alleging the     The next round of litigation, which
physicians misused human                                                          to $675,000, for a total of
                                      began as 18 additional cases, in-
embryos with prohibited egg                                                       $4,230,000.
                                      cluded the 12 resolved in this series
transfers and misappropriation of     of cases. The plaintiffs presented
biologic material. These cases        documentation of misappropriation           REFERENCE
were brought in 2003, years after     of eggs, some resulting in live births      Debra Ann Beasley and John Kent
the plaintiffs had received           and some involving eggs which               vs. Regents of the University of Cali-
treatment at the reproductive         went unaccounted for. The plaintiffs        fornia (Multiple related actions).
health center and years after the
                                      claimed they did not know they              Attorney for plaintiff: Daniel M.
actions of the physicians went
                                      may have been victims because               Hodes of Hodes Milman, LLP in Los
public, and the defendants
therefore, contended the cases        they were never contacted by the            Angeles, CA. Attorneys for plaintiffs:
were barred by the statute of         university and made aware of the            Steven Heimberg of Heimberg Law
limitations.                          problems at the center. In these            Group, LLP in Los Angeles, CA and
                                      cases, the defendants claimed that          Mark Bush, Esq. of Legion Counsel,
In 1986, the UCI College of Medi-     because of the tremendous                   LLP in Southern California, CA.
cine and American Medical Inter-      amount of publicity which arose             Attorneys for defendant: Byron
national recruited the two            from the first round of litigation in the   Beam, Esq. and Louise Douvill, Esq.
physicians from the University of     later 1990s, they plaintiffs most cer-      of Beam, Brobeck, West, Borges &
Texas, San Antonio Medical Center,    tainly had knowledge that some-             Rosa, LLP in Newport Beach, CA.
and the center was operated by        thing at the clinic may have been

     DEFENDANT’S VERDICT
Ob/gyn – Alleged failure to           Memorial Hospital where the                 cervical examination was not
perform cervical examination –        plaintiff was evaluated. The                called for, as a low lying placenta
Premature delivery at home –          plaintiff alleged that the                  created a risk of inducing labor
Death of newborn – Claimed            defendant ob/gyn deviated from              or causing hemorrhage if a
negligent infliction of emotional     the required standard of care in            cervical examination had been
distress.                             failing to perform a cervical               performed.
                                      examination which would have
Wyoming County, Pennsylvania          revealed that the delivery was              The plaintiff presented to the defen-
This action arose from the death      eminent and allowed proper                  dant hospital on Thursday night, De-
of the plaintiff’s newborn            hospitalization. The defendants             cember 4, 2004, at approximately
daughter four hours after the         argued that the sudden delivery             7:00 p.m., with a history of vaginal
premature infant was delivered        of the baby resulted from a                 spotting. She was in her 29th week
at home in 2004. The defendants       placental abruption which                   of gestation at the time. The defen-
in the case included a treating       occurred after the defendant ob/            dant, Geisinger Clinic, rented the
ob/gyn, Geisinger Clinic which        gyn had last seen the plaintiff.            fourth floor of the defendant, Tyler
employed the doctor and Tyler         The defense maintained that a               Memorial Hospital, in 2004. Hospital


16                                                                                               Volume 3, Issue 8, March 2010
                                                                                                    VERDICTS BY SPECIALTY


nurses called the defendant ob/gyn               nation of the plaintiff on the evening     dence of the placental abruption
who had treated the plaintiff during             of December 4th or the morning of          at the time the plaintiff was last
her prenatal period.                             December 5, 2004. Such an exami-           seen by the defendant doctor and
                                                 nation would have revealed cervi-          there was no indication that the
The defendant ob/gyn spoke with a
                                                 cal dilation and other indications         delivery was imminent.
Tyler Hospital nurse who reported
                                                 that delivery would soon take place
that the plaintiff’s spotting had                                                           The defendant played the deposi-
                                                 and the mother could have been
stopped, there were no contrac-                                                             tion testimony of the plaintiff’s long-
                                                 sent to a hospital with facilities for
tions and fetal monitor strips were                                                         time treating psychiatrist. He testi-
                                                 premature infants, according to the
normal. The defendant doctor did                                                            fied that the plaintiff’s emotional
                                                 plaintiff’s claims. The plaintiff argued
not come into the hospital, but in-                                                         health worsened for a period of
                                                 that birth in an appropriate hospital
structed the nurses to have the                                                             time after the death of her daugh-
                                                 would have greatly increased the
plaintiff come back the following                                                           ter, but she is currently no worse off
                                                 infant’s chance of survival.
morning. The plaintiff returned on                                                          then she had been before the
Friday morning, December 5, 2005,                The plaintiff was 32 years old at the      event.
as instructed and she was seen by                time of her infant daughter’s death.
                                                                                            The jury found for the defendants on
the defendant ob/gyn who ordered                 She had been diagnosed with
                                                                                            all counts.
an ultrasound. The ultrasound was                schizophrenia at age 18 and was
read, by a non-party radiologist, as             taking the medication, Abilify, to
not showing an acute problem and                 control the condition. The plaintiff       REFERENCE
the plaintiff was discharged home.               alleged that the death of her              Plaintiff’s ob/gyn expert: James
                                                 daughter worsened her preexisting          Balducci from Paradise Valley, AZ.
Sometime Saturday morning (De-                                                              Plaintiff’s economist expert:
                                                 emotional state and required that
cember 6, 2004), approximately 24                                                           Andrew Verzilli, Jr. from
                                                 she be admitted to a psychiatric
hours after she had been dis-                                                               Lansdowne, PA. Plaintiff’s placental
                                                 hospital. The plaintiff alleged negli-
charged by the defendant ob/gyn,                                                            pathologist expert: Theonia Boyd
                                                 gent infliction of emotional distress,
the plaintiff delivered a baby girl at                                                      from Boston, MA. Defendant’s
                                                 as well as medical malpractice
home alone. The plaintiff called                                                            placental pathologist expert: Dale
                                                 against the defendants.
“911” after the birth. The paramed-                                                         Huff from Philadelphia, PA.
ics arrived and were required to                 The defendant ob/gyn testified that
break through the plaintiff’s locked             tests showed that the plaintiff exhib-     Bennett vs. Walker, Geisinger Medi-
apartment door. The premature in-                ited a low-lying placenta. In such         cal Clinic and Tyler Memorial Hospi-
fant (29 weeks) was taken to nearby              cases, the defendant argued that a         tal. Judge Brendon Vanston, 8-7-09.
Montrose Hospital, which unfortu-                cervical examination was contrain-         Attorney for plaintiff: Joseph P.
nately did not have an incubator or              dicated and could induce labor or          Lenahan of Lenahan & Dempsey in
any other capacity to care for se-               cause hemorrhage. The defen-               Scranton, PA. Attorney for
verely premature infants. The baby’s             dant’s placental pathologist testified     defendants, Walker and Geisinger
attempted airlift to Wilson Hospital,            that the plaintiff suffered from a pla-    Medical Clinic: Anna M. Bryan of
across the New York border, was                  cental abruption. The plaintiff’s pla-     White & Williams in Philadelphia,
hampered by a severe snow storm.                 cental pathology agreed and                PA. Attorney for defendant, Tyler
The baby died four hours after it was            testified the abruption occurred, at       Memorial Hospital: Bruce Coyer of
born.                                            the earliest, the morning of Decem-        O’Malley, Harris, Durkin & Perry in
                                                 ber 5, 2004, and caused the sud-           Scranton, PA.
The plaintiff’s expert ob/gyn testified
                                                 den delivery. The defense
that the defendant doctor should
                                                 contended that there was no evi-
have performed a cervical exami-


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


National Medical Malpractice Review & Analysis                                                                                    17
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS


The plaintiff testified that the day af-   and that the defendant was negli-          fense also contended that earlier
ter his injury, he called the defen-       gent in failing to advise him to seek      treatment for the plaintiff’s eye in-
dant doctor and complained of              immediate treatment.                       fection would not have prevented
eye pain. The defendant was at-                                                       the ultimate retinal detachment
                                       The defendant physician testified
tending a seminar in San Diego,                                                       which occurred.
                                       that he advised the plaintiff, during
California at the time he received
                                       the cell phone conversation in                 The jury found that the defendant
the plaintiff’s call on his cell phone.
                                       question, to go to Wills Eye Hospital          physician was not negligent.
The plaintiff testified that the defen-
                                       immediately. The defense argued
dant told him he could go to the
                                       that the defendant doctor had spo-             REFERENCE
emergency if he wanted to, but
                                       ken with the plaintiff earlier in the          Bartholomew vs. McGuire, et al.
that there was no urgency. The
                                       day and advised the plaintiff to go            Case no. 07-04-04227; Judge Paul
plaintiff presented to the hospital
                                       to the local community hospital                Panepinto, 6-19-09.
approximately 11 hours after speak-
                                       emergency room immediately for
ing with the defendant. He was                                                        Attorney for plaintiff: Thomas Duffy
                                       tingling sensations in his chin. How-
treated for infection which ulti-                                                     of Duffy & Partners in Philadelphia,
                                       ever, the plaintiff did not present to
mately resulted in a retinal                                                          PA. Attorney for defendant Maguire:
                                       the local emergency room on the
detachment.                                                                           Daniel J. Sherry of Marshall,
                                       prior occasion for approximately 1.5
The plaintiff is legally blind in one  hours after speaking with the defen-           Dennehey, Warner, Coleman &
eye as a result of the retinal detach- dant, even though he lived only ten            Goggin in King of Prussia, PA.
ment. The plaintiff claimed that im- minutes away. The defense argued                 Attorney for defendant, Wills Eye
mediate treatment would have           that the plaintiff’s earlier actions indi-     Hospital: Robert Britton of Post &
avoided the retinal detachment         cated that he was not compliant to             Schell in Philadelphia, PA.
                                       the defendant’s instructions. The de-

                                     ORTHOPEDIC SURGERY
     DEFENDANT’S VERDICT
Orthopedic surgery –                       pain and clicking and popping of           After a ten day trial and after the
Inappropriately sized tibial base          her knee. The defendant argued             jury deliberated for between two
plate allegedly inserted in knee           that the components used in the            and three hours, the jury of three
replacement surgery – Total knee           knee replacement, including the            men and three women returned a
revision to remove and replace             tibial base plate, were                    defense verdict, finding no
plate.                                     appropriate and properly sized             departures.
                                           and that the plaintiff’s complaints
Nassau County, New York                    arose from an accident the
On February 3, 2004, the
                                                                                      REFERENCE
                                           plaintiff was subsequently
defendant orthopedic surgeon               involved in one year after the     Plaintiff’s orthopedic surgery
performed a total replacement              2004 surgery.                      expert: Gregory Shankman from
surgery on the 39-year-old                                                    Utica, NY. Defendant’s orthopedic
female plaintiff. The surgery was          On March 20, 2006, a nonparty or- surgery expert: David Benatur from
required due to severe arthritis           thopedic surgeon performed a total Long Island, NY.
that developed secondary to a              knee revision. He stated in his oper-
                                           ating report and testified at trial that   Mitchell Kraeling vs. Barry G.
workplace accident the plaintiff                                                      Simonson. Index no. 012448/2006;
was in 1999. The plaintiff alleged         the tibial base plate was two sizes
                                           too large. The defense expert ortho-       Judge Joseph P. Spinola, 5-15-09.
that the defendant committed
medical malpractice by inserting           pedic surgeon opined that there            Attorney for plaintiff: Duffy and
a tibial base plate that was a full        were no departures, that the com-          Duffy in Uniondale, NY. Attorney for
two sizes larger than was                  ponents were properly sized and            defendant: Charles Connick of
appropriate and that as a result           that the plaintiff’s subsequent acci-      Charles X. Connick, esq. in Mineola,
there was a severe overhang.               dent caused the onset of her               NY. Attorney for defendant:
The plaintiff further alleged that         symptoms.                                  Montfort, Healy, McGuire, et.al in
during the two years that the                                                         Garden City, NY.
defendant continued to treat the           Initially, the plaintiff demanded
plaintiff, the defendant concealed         $750,000 of the jury; during the trial,
the error in spite of the plaintiff’s      the plaintiff demanded $650,000.
reported complaints of severe              No offers of settlement were made.




18                                                                                                   Volume 3, Issue 8, March 2010
                                                                                                  VERDICTS BY SPECIALTY



                                                         PODIATRY
      DEFENDANT’S VERDICT
Podiatry – Alleged malpractice                   work and on November 9, 2004,            the plaintiff’s difficulty in understand-
during metatarsal osteotomy –                    she reported that she was feeling        ing English. The judge dismissed
Lack of informed consent –                       much better.                             that claim.
Alleged failure to monitor and
negligent post-operative care –                  The plaintiff claimed that she devel-
                                                                       The defendant argued that the ex-
Continuing pain and disability.                  oped intensifying pain that
                                                                       ternal fixation he used was consis-
                                                 stemmed from her right foot. By
                                                                       tent with podiatric standards for a
Queens County, New York                          September of 2005, she had visited
                                                                       second metatarsal osteotomy and
The plaintiff contended that the                 the defendant three times to seek
                                                                       that he did not approve of the
defendant podiatric surgeon                      evaluation of the pain. On March
                                                                       plaintiff returning promptly to work;
failed to properly perform a                     20, 2007, another podiatrist per-
                                                                       rather, he advised her to remain
second metatarsal osteotomy                      formed follow-up revisionary surgery,
                                                                       non-weight bearing form four to five
surgery to treat a hammertoe of                  but the plaintiff claimed that she
                                                                       weeks after the surgery. The defense
her right foot’s second toe, that                suffers continuing pain and disabili-
                                                                       further argued that the X-rays he
he failed to obtain informed                     ties. She claimed that she has to
                                                                       performed during the first and fifth
consent to the procedure, and                    rest after walking long distances
                                                                       weeks after surgery were consistent
that he failed to render proper                  and her disability impairs her ability
                                                                       with the standard of care and that
post-operative care. The plaintiff               to perform housework. more frequent X-rays would not
maintained that immediately                                            have altered the plaintiff’s out-
after 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 sur-
to work. She then claimed to feel gery, that he failed to obtain in-   stemmed from the displacement of
pain and was required to                                               an implant that was inserted during
                                   formed consent to the procedure
undergo follow-up surgery and                                          the revisionary surgery performed by
                                   and that he failed to render proper
that she continues to feel                                             a different surgeon. They main-
                                   post-operative care. Specifically,
ongoing pain and disability. The                                       tained that removal of the implant
                                   she contended that her second
defendant argued that the                                              would resolve the plaintiff’s pain.
                                   metatarsal did not heal properly
procedure he performed was         because the defendant had failed The trial lasted five days. After delib-
consistent 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
did not advise the plaintiff to    applied external fixation.          unanimous defense verdict.
return to work for five weeks        The plaintiff’s podiatric expert
while she remain non-weight          opined that the defendant would                      REFERENCE
bearing.                             have been able to correct the im-                    Plaintiff’s podiatry expert: Ovidio
                                     proper healing had he performed                      Falcone from Brooklyn, NY.
On September 23, 2004, the 58-
                                                                                          Defendant’s podiatry experts:
year-old female plaintiff, a mainte- X-rays during the second, fourth
                                     and sixth weeks following surgery.                   Thomas DeLauro from Manhattan,
nance worker, underwent the sec-
                                     The plaintiff further contended that                 NY and Edwin Wolf from New
ond metatarsal osteotomy in the
                                     the defendant should not have ad-                    York, NY.
defendant’s office. The procedure
involved shaving the bone that con- vised her to return to work as soon                   Maria Ano Grozav vs. David
nected her left foot’s second toe    as she did, less than two weeks after                Goldhaber, D.P.M. Index no.
and the middle portion of her left   surgery. In addition, the plaintiff al-              022825/2006; Judge Allan B. Weiss,
foot. The procedure also included    leged that the defendant did not                     3/19/09.
the removal of a neuroma. On Oc- disclose the risks associated with the                   Attorney for plaintiff: Fredric Lewis in
tober 5, 2004, the defendant re-     procedure and that, therefore, the
                                                                                          New York, NY. Attorney for
moved the surgical sutures. The      plaintiff did not give informed con-
                                                                                          defendant: Feldman, Kiefer &
plaintiff immediately returned to    sent. This claim was predicated on
                                                                                          Herman in Buffalo, NY.




National Medical Malpractice Review & Analysis                                                                                   19
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS



                                             RADIOLOGY
     $275,000 VERDICT
Wrongful death – HMO                   The female plaintiff, in her mid 60s     The case settled prior to trial, but the
radiologist fails to appreciate        at the time the X-rays were done,        defendant was prepared to argue
pathology on chest X-rays –            enrolled in the defendant HMO in         the standard of care was met at all
Failure to adequately label X-         1998. Based upon her history of          times and that even had the plain-
rays – Delayed diagnosis of Stage      smoking, she obtained chest X-rays       tiff’s diagnosis been made in a
IV squamous cell carcinoma of          from HMO physicians in 2003 and          more timely fashion, she would not
the lung.                              2004. Those X-rays were read as old      have been survivable. The plaintiff
Riverside County, California           granulomatous disease and old rib        demanded $350,000 and the de-
                                       fractures. In July 2004, the plaintiff   fendant offered $200,000. The mat-
The decedent plaintiff contended
                                       changed physicians within the HMO        ter settled via binding arbitration for
the radiologist for defendant
                                       and no chest X-rays were obtained        $275,000, which included the plain-
HMO failed to appreciate the
pathology on a set of chest X-         despite the fact the plaintiff was       tiff’s claim for her injuries and the
rays done in 2003 and 2004,            coughing up bloody sputum at that        adult children’s potential claims for
which the plaintiff claimed            time. She was diagnosed with a           wrongful death.
indicated the presence of a mass.      chest infection and no further chest
The plaintiff brought suit against     films were recommended.                  REFERENCE
the HMO claiming negligence in         In 2008, the plaintiff was diagnosed     Roe vs. Doe, HMO. Mediator Judge
the standard of care which             with stage IV squamous cell carci-       Thomas F. Nuss, Retired, IVAMS.
delayed her diagnosis of stage IV
                                       noma of the lungs and began              Attorney for plaintiff: Jeffrey A.
squamous cell carcinoma of the
                                       medical treatment for the disease.       Milman, Esq. of Hodes Milman, LLP
lungs; a delay she claimed
affected the curability of her         The plaintiff argued that by labeling    in Irvine, CA. Attorneys for
disease. The defendant claimed         the film as “old granulomatous dis-      defendant: Mike Lubrani and Leanna
there was no breach in the             ease,” her treating physicians were      Hiraoka of Lubrani & Smith, LLP in
standard of care in the labeling       misled and therefore, failed to order    Riverside, CA.
of the X-rays. The plaintiff’s adult   serial X-rays, failed to refer her to
children also joined the               specialists and failed to obtain a bi-
settlement with claims of              opsy. The plaintiff further argued
wrongful death. The plaintiff died     that had the diagnosis been made
as a result of her illness shortly     around 2004, her disease would
after this case settled.               have been curable.

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


20                                                                                              Volume 3, Issue 8, March 2010
                                                                                                    VERDICTS BY SPECIALTY


The defendant argued that the risk               from Massachusetts General Hospi-          REFERENCE
of laceration of cardiac vessels and             tal. The defendant’s expert testified      Plaintiff’s general and transplant
tamponade are a known risk of the                that fatalities resulting from lacera-     surgery expert: Dr. Raymond Pollak
procedure that the plaintiff’s dece-             tion represent less than or equal to       from Chicago, IL. Defendant’s Chief
dent underwent and that the dece-                1%. The defendant’s expert also            of endovascular and vascular
dent was informed of the risk. The               noted that some degree of force is         surgery expert: Dr. Richard
defendant asserted that he com-                  necessary to insert the sheath and         Cambria from Boston, MA.
plied with the standard of care at               that the procedure should not be
                                                                                            Cannavino, Administrator of The Es-
all times during the procedure. The              abandoned because resistance is
                                                                                            tate of Ann Cannavino vs. Hoenig.
defendant pointed to the fact that               encountered. The defendant’s ex-
                                                                                            Case no. MICV2004-02131.
the decedent had kidney disease                  pert testified that the defendant
and required the catheter for dialy-             inserted the sheath properly and           Attorney for defendant: Peter C.
sis and that, on autopsy, blood was              there was no medical malpractice.          Knight of Morrison Mahoney in
found in two places in the dece-                                                            Boston, MA.
                                                 The jury found no negligence by the
dent’s body indicating a question
                                                 defendant and returned a verdict in
as to cause of death. The defen-
                                                 favor of the defendant.
dant called an expert in
endovascular and vascular surgery

                                                          UROLOGY
      DEFENDANT’S VERDICT
Surgery – Plaintiff undergoes                    proximately two weeks after the va-        phone number so that the plaintiff
post-vasectomy exploratory                       sectomy surgery. At that time, the         could have direct contact with him
surgery – Severe scrotal infection               plaintiff had left epididymal swelling     regarding his medical condition.
– Multiple surgeries – Loss of one               with a surrounding hydrocele. The
testicle.                                                                                   The plaintiff, Cutler, returned to see
                                                 impression of the operating urologist
                                                                                            Hendin on May 31, 2006, and re-
Harris County, Texas                             was that Mr. Cutler had a resolving
                                                                                            ported that his pain had de-
                                                 epididymis, and he made a plan to
In this medical malpractice                                                                 creased, but he still had swelling. At
                                                 treat him with non-steroidal anti-in-
action, the 46-year-old male                     flammatory medications with in-
                                                                                            that time, the plaintiff was still taking
plaintiff contended that the                                                                Bactrim, Celebrex, and 800 mg. of
                                                 structions to return to the clinic in
defendant was negligent in his                                                              Ibuprofen for pain. The defendant
                                                 one to two weeks.
care and treatment following                                                                noted that the plaintiff’s scrotal
another physician’s bilateral                    The defendant, Hendin, subse-              swelling was slightly decreased and
scrotal vasectomy. The plaintiff                 quently took over the care of the          that the incision was intact, healing
maintained that instead of                       plaintiff, Cutler, because he was on       well and tender. He instructed the
following the previous                           call when Mr. Cutler presented with        plaintiff to continue taking NSAIDs
physician’s plan for conservative                excruciating pain in his left testicle.    and return in two weeks for a scrotal
treatment, the defendant opted                   On May 23, 2006, the defendant,            ultrasound. At that time, Hendin’s
to perform exploratory surgery                   Hendin, performed an exploration           notes indicated that the plaintiff’s
and drainage. As a result, the
                                                 and drainage and diagnosed the             post-operative course was stable.
plaintiff claimed that he
                                                 plaintiff’s condition as a post-vasec-
developed a massive scrotal                                                                 The plaintiff returned six days later
infection which necessitated                     tomy bleed which had turned into a
                                                                                            on June 5, 2006, complaining of
several surgeries and ultimately                 large hematocele. The defendant,
                                                                                            left scrotal pain. The defendant’s ex-
the removal of one testicle. The                 Hendin, drained approximately 80
                                                                                            amination indicated that the swell-
defendant contended that his                     cc to 100 cc of serosanguineous
                                                                                            ing was stable and that the incision
care and treatment of the                        fluid from the left scrotum and sent
                                                                                            appeared clean, dry, and intact.
plaintiff conformed to the                       a culture to test if there was an in-
                                                                                            The defendant advised the plaintiff
standard of care and that the                    fection in the fluid. Prior to the ex-
                                                                                            to continue his NSAIDs, change the
subsequent infection was the                     ploration and surgery, the
                                                                                            dressing three times daily, and re-
result of the original surgery.                  defendant, Hendin, washed the sur-
                                                                                            turn to work in two weeks. On June
                                                 gical field with Bacitracin. Post-oper-
The evidence revealed that the                                                              6, 2006, the plaintiff called the de-
                                                 atively, the defendant, Hendin,
plaintiff, Cutler, received a vasec-                                                        fendant’s cell phone and told him
                                                 prescribed the antibiotic Bactrim.
tomy from another physician more                                                            that his surgical incision had sepa-
                                                 The culture results showed that there
than one month prior to treatment                                                           rated and that purulent pus was es-
                                                 was no infection in the
by the defendant surgeon, Dr.                                                               caping. The defendant instructed
                                                 serosanguineous fluid the defen-
Hendin. The prior urologist who per-                                                        the plaintiff to immediately go to
                                                 dant had drained from the left scro-
formed the vasectomy had treated                                                            the emergency room and that he
                                                 tum. The defendant, Hendin, gave
Mr. Cutler for continuing pain and                                                          would have an urologist and the
                                                 the plaintiff, Cutler, his personal cell
swelling in the left testicle for ap-                                                       nursing staff waiting for his arrival.


National Medical Malpractice Review & Analysis                                                                                     21
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS


The next morning, on June 7, 2006,        treatment which caused the infec-          The defense also presented expert
the defendant took the plaintiff to       tion to spread to contiguous areas         testimony from the treating patholo-
the operating room for another ex-        of the scrotum. Specifically, the ex-      gist who looked at the removed tes-
ploratory surgery. During this explo-     pert testified that the epididymitis       ticle and supportive tissue after the
ration, the defendant found that the      was the source of the infection. He        orchiectomy surgery. This expert
left epididymis was massively di-         also testified that the spread of the      showed the jurors via microscopic
lated and he drained a large              infection rendered subsequent inter-       slides that there was no infection in
amount of purulent material. The          vention more difficult due to the          the epididymis. She also showed
defendant left the scrotum incision       magnitude of alleged sepsis and            the jurors that the infection was in
open, packed it, and ordered the          subsequent adhesions. The plaintiff’s      the supportive tissue, not the
plaintiff to stay in the hospital so he   expert opined that had the defen-          epididymis.
could have daily dressing changes.        dant applied reasonable and cus-
                                                                                     The jury was comprised of one Afri-
His plan called for a return to the       tomary care with scrotal exploration
                                                                                     can-American male, eight Cauca-
operating room in the next one to         and orchiectomy, adequate drain-
                                                                                     sian males, and three Caucasian
two days for further inspection. The      age, removal of necrotic tissue,
                                                                                     females. The trial lasted four days
plaintiff returned to the operating       and vigorous antibiotic measures,
                                                                                     and the jury deliberated for two
room on June 9, 2006, for further in-     the removal of the left testicle in
                                                                                     hours before returning a unanimous
cision and drainage. The defen-           reasonable medical probability
                                                                                     verdict for the defense, finding that
dant, Hendin, the urologist who           would not have been necessary.
                                                                                     the defendant was not liable for the
performed the original vasectomy,
                                          The defense presented the expert           injury suffered by the plaintiff Cutler.
and the chief urology resident, were
                                          testimony of an urologist from Hous-
all involved in this surgery. During
                                          ton. This expert testified that unfortu-   REFERENCE
the procedure, the defendant,
                                          nately, the plaintiff had two              Plaintiff’s urology expert: Bernard
Hendin, after discussion with the
                                          conditions going on, one of which          Strauss, M.D. from West Orange,
other two urologists in the O.R., per-
                                          masked the symptoms of the other.          NJ. Defendant’s pathology expert:
formed a left orchiectomy. Al-
                                          The first condition involved a com-        Schwartz, M.D. Defendant’s
though the testicle itself was not
                                          plex hematocele. This meant that           urology expert: Michael Coburn,
infected, it was not healthy and was
                                          the blood in the enclosed area             M.D. from Houston, TX.
encompassed by infected tissue.
                                          caused both the tissues and the
The plaintiff contended that the de-      spermatic cord to swell. The de-           Daniel Cutler vs. Benjamin Hendin,
fendant negligently failed to prop-       fense testified that the swelling from     M.D. Case no. 2007-04747; Judge
erly identify and timely treat the        the hematocele masked the symp-            Reece Rondon.
infection, and that his actions re-       toms of the infection, which started       Attorney for plaintiff: James V.
sulted in the defendant negligently       after the first incision and drainage      Pianelli of The Civil Justice Center in
removing a viable testicle. The           procedure. The expert opined that          Houston, TX. Attorneys for
plaintiff presented expert testimony      the defendant’s management plan            defendant: Jeffrey B. McClure and
by an urologist from New Jersey,          for the plaintiff was appropriate and      Shae H. Wilson of Andrews Kurth LLP
who testified that the defendant          further opined that the removal of         in Houston, TX.
negligently delayed early antibiotic      the testicle was appropriate.




22                                                                                                   Volume 3, Issue 8, March 2010
                               NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS


NOTES:




National Medical Malpractice Review & Analysis                                  23
NATIONAL MEDICAL MALPRACTICE REVIEW & ANALYSIS




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