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Husband-and-Wife Lawyers Secure Record $20.5 Million Verdict in MedMal Case
The Legal Intelligencer
November 20, 2008
Image: Comstock Images
A husband-and-wife attorney team from Montgomery County, Pa., has secured the highest reported medical malpractice verdict in Lackawanna County Common Pleas Court since 1999, when the same pair earned that distinction.
A 12-member jury awarded a couple and their son $20.5 million against a doctor and a Scranton, Pa., hospital for birth complications that ultimately led to brain injury and a diagnosis of cerebral palsy.
Voting 11-to-1 on all questions, the jury found the obstetrician, Richard Behlke of OB-GYN Consultants Ltd., 60 percent liable and the Community Medical Center 40 percent liable, according to court papers provided by the plaintiffs' attorneys, Jeffrey M. Kornblau and Lynn Sare Kornblau, both of Kornblau & Kornblau in Jenkintown, Pa.
The verdict in White v. Behlke was handed up around 3:30 p.m. Monday after a two-week trial. The jurors found both Behlke and the hospital to be negligent and said that negligence caused harm to plaintiff Cody White. Cody, who is now 7, is the son of Dan and Laura White, who were also plaintiffs in the case.
Lackawanna Common Pleas Judge Terrence R. Nealon presided at the trial.
Dan and Laura White were awarded $2 million for health care expenses and related costs associated with caring for Cody until he is 18. The jury did not award the parents anything for the pecuniary value Cody would have provided up until his 18th birthday.
The jury awarded Cody $10 million for health care expenses that would occur after he turns 18 and another $3.5 million for lost earning capacity after he turns 18. An additional $2.5 million each was awarded for past pain and suffering and future pain and suffering.
A claim by the parents for negligent infliction of emotional distress was dismissed at the summary judgment stage, according to court documents.
According to those documents, a pregnant Laura White went to the emergency room June 30, 2001, after calling her doctors at OB-GYN Consultants with concerns about her unborn son because of decreased fetal movement. She was due that July. White arrived about 2:35 p.m. and monitoring showed some abnormalities, according to court documents.
Behlke, who wasn't White's primary OB-GYN but was covering at the hospital that day, was called and, about two hours later, he ordered tests, Jeff Kornblau said. One of the tests was a biophysical profile that would have further demonstrated whether there was a lack of oxygen. When the results came in and showed further abnormalities, Kornblau said, the doctor chose to induce White instead of performing an emergency Caesarean section.
It was after four hours, and the administration of the drug Pitocin -- which the plaintiffs argued should have been known by the nursing staff to pose a threat to the already stressed fetus -- that White was brought in for an emergency C-section. Kornblau said the Pitocin resulted in a dramatic drop in the baby's heart rate, forcing the need for a C-section.
The main issue in the case, as described by both sides in a joint pretrial memorandum, was whether a C-section should have been performed earlier.
The plaintiffs argued Cody suffered blood loss across the placenta and oxygen deprivation during the four-hour period. They argued, according to court documents, that performing a C-section sooner and not administering the Pitocin would have lessened the negative effects suffered by Cody at birth.
Cody was left with permanent brain damage and was later diagnosed with cerebral palsy. According to Kornblau, he will never be able to perform any activity of independent living. Kornblau said Cody is unable to walk or talk, is blind and can't use his arms or control certain bodily functions.
"So he will be an infant forever," Kornblau said.
It is easy, he said, to explain the high jury verdict. The majority of it was awarded for Cody's long-term care. Because his organs, with the exception of his brain, are all fully functioning, there is no reduction in Cody's expected life span, Kornblau said.
Counsel for Behlke and Community Medical Center didn't respond to calls for comment. Eugene P. Feeney and Dominick Georgetti of the Scranton office of Weber Gallagher Simpson Stapleton Fires & Newby represented Behlke and OB-GYN Consultants. Michael P. Perry of O'Malley Harris Durkin & Perry in Scranton represented the hospital.
According to statistics kept by the Administrative Office of Pennsylvania Courts on medical malpractice verdicts, there hasn't been a jury verdict out of Lackawanna County of more than $5 million in a medical malpractice case since the statistics first were tracked in 2000. There were no non-jury verdicts in that time that were even close to the $1 million range.
It was actually Jeff and Lynn Sare Kornblau who secured an even larger verdict in Lackawanna County back in July 1999. A jury awarded $26 million to a woman whose breast cancer was misdiagnosed, but the verdict was cut to $19.5 million because of contributory negligence. The case was against a doctor from OB-GYN Consultants.
