verdicts and settlements
()

Date of Verdict:

Oct. 27.

Court and Case No.:

C.P. Montgomery No. 2010-36285.

Judge:

Richard Haaz.

Type of Action:

Medical malpractice.

Injuries:

Brain damage.

Plaintiffs Counsel:

Frank Rothermel, Bernhardt Rothermel Siegel, Philadelphia.

Defense Counsel:

Donald J. Brooks Jr., Eckert Seamans Cherin & Mellott, for Main Line Hospital; James Kilcoyne, Kilcoyne & Nesbitt, for Joseph V. Somers and Lori Chambers; George H. Knoell, Kane, Pugh, Knoell, Troy & Kramer, Norristown, for B. Davison Smith Jr.

Plaintiffs Experts:

Stephen A. Cohen, anesthesiologist, Boston; Michael S. Morris, ENT, Rockville, Md.; James J. Abrahams, neuroradiologist, Madison, Conn.; Harry A. Doyle, psychiatry, Philadelphia; Varsha A. Desai, life care planning, Blue Bell; David L. Hopkins, economics, King of Prussia.

Defense Experts:

Thomas McLoughlin, anesthesiology, Allentown; Gordon Zse, neuroradiologist, New Haven, for Chambers and Somers; Lee Rowe, ENT, Philadelphia, for Smith.

Comment:

A Montgomery County jury awarded $12.7 million to a woman who was left brain damaged after doctors allegedly too quickly removed her breathing tube at the conclusion of her tonsillectomy.

The verdict is the second largest medical malpractice verdict in Montgomery County in the more than 20 years since Legal sibling publication PaLaw has been tracking verdict and settlement data. A jury in 2006 awarded $20 million to a boy who was left blind after doctors failed to diagnose and repair a retinal injury the boy was born with.

In last week’s verdict, plaintiff Sherrell Clayton, who was described by her lawyer as an active 33-year-old special education teacher when she went into her 14-minute tonsillectomy, suffered short-term cognitive injuries after the surgery that have since healed. But her lawyer, Frank Rothermel of Bernhardt Rothermel Siegel, said Clayton still walks with a severe foot drag, as she can’t lift her right leg. She also has decreased function in her right arm and issues with balance, he said.

According to Clayton’s pretrial memorandum, she was seeking a $10 million ­resolution. But Rothermel said the defendants never offered to settle, including after the trial or during deliberations when the jury asked to review Clayton’s life care plan.

Of the $12.7 million awarded Clayton, about $5.85 million was for past and future lost earnings and past and future noneconomic damages. The rest was for her life care plan through 2057.

The nearly $7 million in damages awarded as part of the life care plan was required under the Medical Care Availability and Reduction of Error Fund to be broken out into years so that the patient doesn’t receive a windfall payment. MCARE allows, however, for the defense to pay a lower, lump-sum payment that the plaintiff can use to purchase an annuity for the full value of the plan. If the defendants in this case choose to purchase an annuity, Rothermel said, then they would only pay out $2.5 million under the plan, not the full amount of nearly $7 million in life care damages. So while the plaintiff will still receive up to $12.7 million, the potential payout from the defendants could be as low as about $7.5 million.

The defense argued throughout trial that Clayton did not suffer any anoxic brain injury, but rather she had a strange reaction to the anesthesia, Rothermel said. The defendants further argued tests did not show a brain injury, and that Clayton, who they noted had suffered from depression in the past, was suffering from a psychological conversion disorder that was manifesting as her symptoms, according to Rothermel and court papers.

But Rothermel pointed to an admission form for Magee Rehabilitation, where defendant Main Line Hospital, doing business as Lankenau Hospital, sent Clayton for rehab. That form states she was being admitted for treatment of anoxic brain injury, according to the document. He also argued that certain brain injuries do not register on scans.

According to Clayton’s pretrial memorandum, she alleged the surgeon, anesthesiologist and nurse anesthetist didn’t perform the appropriate tests to determine whether the anesthesia had worn off to the point where it was safe to remove Clayton’s breathing tube. After they removed the tube, they did not monitor Clayton’s oxygen levels for 16 minutes, until she reached a post-op critical care unit. At that point, it showed her oxygen level was 81 percent, which, according to the pretrial memo, is “dangerously low.”

Clayton was reintubated, but remained “inappropriately oriented and unresponsive” to questions and commands. She had abnormal, seizure-like movements, according to the court documents.

Clayton sued surgeon B. Davison Smith Jr., anesthesiologist Joseph V. Somers and nurse Lori Chambers as well as Main Line Hospital and United Anesthesia Services.

Smith, who was represented by George H. Knoell of Kane, Pugh, Knoell, Troy & Kramer, was not found liable in any way for Clayton’s injuries.

According to the verdict sheet in Clayton v. Somers, the jury found Somers 70 percent liable, and Chambers 30 percent liable. Rothermel said the parties stipulated that both Somers and Chambers were employees of United Anesthesia Services, which was not mentioned on the verdict sheet. But the jury was asked whether Somers and Chambers were ostensible agents of Lankenau Hospital, to which the jury said yes, according to the verdict sheet.

Rothermel said he could collect from either Main Line Hospital or United Anesthesia Services, and it would be between them as to who pays the verdict. He estimated he would seek delay damages in the range of $2.7 million. Rothermel said his client was a beautiful, active, young woman who had a master’s degree in a field she loved, special education. And while aggressive rehab has returned her cognitive function and allowed her to walk on her own, she still has significant difficulty with walking and other everyday activities. She can’t cook because her arm can’t always lift far enough over the stove. When outside, she has to walk where there is a curb cut to be able to cross the street because she can’t step down off of a curb. She can’t drive and has to take three buses to get to work, where she now serves as an aide instead of overseeing the classroom like she once did, Rothermel said.

He said she tried to get her old job back, but the necessary accommodations couldn’t be made for her former role. Clayton now relies on her 70-year-old mother and brother to help her with daily activities and caring for her teenage daughter, he said.

The 12-member jury deliberated for about three hours, asking about an hour-and-a-half in to review the life care plan, Rothermel said. They returned with a unanimous verdict in the evening of Oct. 27. Montgomery County Court of Common Pleas Judge Richard Haaz presided over the trial.

The plaintiff’s expert witnesses were Stephen A. Cohen, an anesthesiologist from Beth Israel Deaconess Medical Center in Boston; Michael S. Morris, an ENT with the Washington ENT/Allergy Center in Rockville, Maryland; neuroradiologist James J. Abrahams of Yale University School of Medicine in Madison, Connecticut; psychiatrist Harry A. Doyle of Philadelphia; life care planner Varsha A. Desai of Blue Bell; and economist David L. Hopkins of King of Prussia.

Anesthesiologist Thomas McLoughlin and neuroradiologist Gordon Zse of Yale testified on behalf of Chambers and Somers. ENT Lee Rowe testified on behalf of Smith. Main Line Hospital did not call any expert witnesses, Rothermel said.

Smith’s attorney, Knoell, did not respond to a request for comment. Donald J. Brooks Jr. of Eckert Seamans Cherin & Mellott represented Main Line Hospital and did not return a call seeking comment. Neither did James Kilcoyne of Kilcoyne & Nesbitt, who represented Somers and Chambers.

— Gina Passarella, of the Law Weekly •

Date of Verdict:

Oct. 27.

Court and Case No.:

C.P. Montgomery No. 2010-36285.

Judge:

Richard Haaz.

Type of Action:

Medical malpractice.

Injuries:

Brain damage.

Plaintiffs Counsel:

Frank Rothermel, Bernhardt Rothermel Siegel, Philadelphia.

Defense Counsel:

Donald J. Brooks Jr., Eckert Seamans Cherin & Mellott , for Main Line Hospital; James Kilcoyne, Kilcoyne & Nesbitt, for Joseph V. Somers and Lori Chambers; George H. Knoell, Kane, Pugh, Knoell, Troy & Kramer, Norristown, for B. Davison Smith Jr.

Plaintiffs Experts:

Stephen A. Cohen, anesthesiologist, Boston; Michael S. Morris, ENT, Rockville, Md.; James J. Abrahams, neuroradiologist, Madison, Conn.; Harry A. Doyle, psychiatry, Philadelphia; Varsha A. Desai, life care planning, Blue Bell; David L. Hopkins, economics, King of Prussia.

Defense Experts:

Thomas McLoughlin, anesthesiology, Allentown; Gordon Zse, neuroradiologist, New Haven, for Chambers and Somers; Lee Rowe, ENT, Philadelphia, for Smith.

Comment:

A Montgomery County jury awarded $12.7 million to a woman who was left brain damaged after doctors allegedly too quickly removed her breathing tube at the conclusion of her tonsillectomy.

The verdict is the second largest medical malpractice verdict in Montgomery County in the more than 20 years since Legal sibling publication PaLaw has been tracking verdict and settlement data. A jury in 2006 awarded $20 million to a boy who was left blind after doctors failed to diagnose and repair a retinal injury the boy was born with.

In last week’s verdict, plaintiff Sherrell Clayton, who was described by her lawyer as an active 33-year-old special education teacher when she went into her 14-minute tonsillectomy, suffered short-term cognitive injuries after the surgery that have since healed. But her lawyer, Frank Rothermel of Bernhardt Rothermel Siegel, said Clayton still walks with a severe foot drag, as she can’t lift her right leg. She also has decreased function in her right arm and issues with balance, he said.

According to Clayton’s pretrial memorandum, she was seeking a $10 million ­resolution. But Rothermel said the defendants never offered to settle, including after the trial or during deliberations when the jury asked to review Clayton’s life care plan.

Of the $12.7 million awarded Clayton, about $5.85 million was for past and future lost earnings and past and future noneconomic damages. The rest was for her life care plan through 2057.

The nearly $7 million in damages awarded as part of the life care plan was required under the Medical Care Availability and Reduction of Error Fund to be broken out into years so that the patient doesn’t receive a windfall payment. MCARE allows, however, for the defense to pay a lower, lump-sum payment that the plaintiff can use to purchase an annuity for the full value of the plan. If the defendants in this case choose to purchase an annuity, Rothermel said, then they would only pay out $2.5 million under the plan, not the full amount of nearly $7 million in life care damages. So while the plaintiff will still receive up to $12.7 million, the potential payout from the defendants could be as low as about $7.5 million.

The defense argued throughout trial that Clayton did not suffer any anoxic brain injury, but rather she had a strange reaction to the anesthesia, Rothermel said. The defendants further argued tests did not show a brain injury, and that Clayton, who they noted had suffered from depression in the past, was suffering from a psychological conversion disorder that was manifesting as her symptoms, according to Rothermel and court papers.

But Rothermel pointed to an admission form for Magee Rehabilitation, where defendant Main Line Hospital, doing business as Lankenau Hospital, sent Clayton for rehab. That form states she was being admitted for treatment of anoxic brain injury, according to the document. He also argued that certain brain injuries do not register on scans.

According to Clayton’s pretrial memorandum, she alleged the surgeon, anesthesiologist and nurse anesthetist didn’t perform the appropriate tests to determine whether the anesthesia had worn off to the point where it was safe to remove Clayton’s breathing tube. After they removed the tube, they did not monitor Clayton’s oxygen levels for 16 minutes, until she reached a post-op critical care unit. At that point, it showed her oxygen level was 81 percent, which, according to the pretrial memo, is “dangerously low.”

Clayton was reintubated, but remained “inappropriately oriented and unresponsive” to questions and commands. She had abnormal, seizure-like movements, according to the court documents.

Clayton sued surgeon B. Davison Smith Jr., anesthesiologist Joseph V. Somers and nurse Lori Chambers as well as Main Line Hospital and United Anesthesia Services.

Smith, who was represented by George H. Knoell of Kane, Pugh, Knoell, Troy & Kramer, was not found liable in any way for Clayton’s injuries.

According to the verdict sheet in Clayton v. Somers, the jury found Somers 70 percent liable, and Chambers 30 percent liable. Rothermel said the parties stipulated that both Somers and Chambers were employees of United Anesthesia Services, which was not mentioned on the verdict sheet. But the jury was asked whether Somers and Chambers were ostensible agents of Lankenau Hospital, to which the jury said yes, according to the verdict sheet.

Rothermel said he could collect from either Main Line Hospital or United Anesthesia Services, and it would be between them as to who pays the verdict. He estimated he would seek delay damages in the range of $2.7 million. Rothermel said his client was a beautiful, active, young woman who had a master’s degree in a field she loved, special education. And while aggressive rehab has returned her cognitive function and allowed her to walk on her own, she still has significant difficulty with walking and other everyday activities. She can’t cook because her arm can’t always lift far enough over the stove. When outside, she has to walk where there is a curb cut to be able to cross the street because she can’t step down off of a curb. She can’t drive and has to take three buses to get to work, where she now serves as an aide instead of overseeing the classroom like she once did, Rothermel said.

He said she tried to get her old job back, but the necessary accommodations couldn’t be made for her former role. Clayton now relies on her 70-year-old mother and brother to help her with daily activities and caring for her teenage daughter, he said.

The 12-member jury deliberated for about three hours, asking about an hour-and-a-half in to review the life care plan, Rothermel said. They returned with a unanimous verdict in the evening of Oct. 27. Montgomery County Court of Common Pleas Judge Richard Haaz presided over the trial.

The plaintiff’s expert witnesses were Stephen A. Cohen, an anesthesiologist from Beth Israel Deaconess Medical Center in Boston; Michael S. Morris, an ENT with the Washington ENT/Allergy Center in Rockville, Maryland; neuroradiologist James J. Abrahams of Yale University School of Medicine in Madison, Connecticut; psychiatrist Harry A. Doyle of Philadelphia; life care planner Varsha A. Desai of Blue Bell; and economist David L. Hopkins of King of Prussia.

Anesthesiologist Thomas McLoughlin and neuroradiologist Gordon Zse of Yale testified on behalf of Chambers and Somers. ENT Lee Rowe testified on behalf of Smith. Main Line Hospital did not call any expert witnesses, Rothermel said.

Smith’s attorney, Knoell, did not respond to a request for comment. Donald J. Brooks Jr. of Eckert Seamans Cherin & Mellott represented Main Line Hospital and did not return a call seeking comment. Neither did James Kilcoyne of Kilcoyne & Nesbitt, who represented Somers and Chambers.

— Gina Passarella, of the Law Weekly •