Insurer must pay $13.6M after hospital death

Hospital settles medical malpractice suits with two families for $5M

Verdicts, Settlements & Tactics - February, 2003

73-year old Frank Thornton was admitted to Mercy Hospital on August 17, 2000 in order to undergo a biopsy and possible lobectomy relative to a 1 cm nodule that had been discovered on an incidental x-ray performed five and one-half months earlier. Although the lesion had remained stable in size and the interpreting radiologist simply recommended that a repeat diagnostic study be done in 3 months, the Defendant, Walter J. Boris, D.O., advised Mr. Thornton that he required surgery. Dr. Boris admitted that he never gave the patient the option of having a fine needle biopsy.

On the morning of surgery, the Defendant, Esther McKenzie, M.D., a locumtenens anesthesiologist who had failed the written portion of her board certification examination on 5 separate occasions, was assigned to Frank's surgery. At trial, Mercy Hospital admitted that Dr. McKenzie was not properly credentialed and that her privileges had lapsed nine days before Mr. Thornton's surgery. Additionally, Plaintiff' s hospital administration expert opined that the hospital had not only violated no less than 46 licensure regulations and Joint Commission standards, but had also violated a number of the hospital's own internal policies and bylaws.

Dr. McKenzie intubated Mr. Thornton with a double-lumen endotracheal tube at approximately 8:30 a.m. and attempted to verify the position of the tube via bronchoscopy. When she failed to identify tracheal rings, she asked Dr. Boris to check placement, and he was likewise unable to identify tracheal rings. Thereafter, Dr. McKenzie and Dr. Boris discussed whether it would be feasible to proceed with surgery without confirming tracheal placement of the tube. Several minutes later, one of the operating room nurses observed abdominal distension and immediately suspected that the tube had been placed in the esophagus as opposed to the windpipe. Although she understood that the patient would be deprived of oxygen with an esophageal intubation, she admittedly turned her back to the patient without notifying either of the physicians. Six to ten minutes after the initial intubation, the breathing tube was replaced and Mr. Thornton's condition immediately improved. Unfortunately, he had already sustained diffuse and irreversible brain injury due to the lack of oxygen.

After the incident, Mr. Thornton's family was not told about the events in the Operating Room and were led to believe that Mr. Thornton's failure to awaken was simply related to the effects of anesthesia. Even after he developed continuous seizures, the true facts were not disclosed. Plaintiff's counsel requested the medical records which did not reference abdominal distension and/or the fact the tube was misplaced. Moreover, after suit was filed, Dr. Boris was deposed and claimed lack of recall as to the events. Nonetheless, the hospital's risk manager later testified that Dr. Boris came into her office within hours of the incident and told her that he had observed abdominal distension and believed the breathing tube had been misplaced.

Approximately three weeks after the initial insult, Mr. Thornton was transferred to Hershey Medical Center and life support was discontinued approximately one week later. At the request of the Dauphin County Coroner, Wayne K. Ross, MD performed an autopsy and suspected that Mr. Thornton had died as a result of an esophageal intubation. He then asked that an anesthesiologist, Stephen Laucks, MD, review the records. Dr. Laucks concluded that Mr. Thornton sustained irreversible brain damage as a result of inadequate ventilation. Accordingly, Mr. Thornton's official death certificate listed his cause of death as therapeutic misadventure.
Injury: Death.

Result: $7,000,000 settlement, reached after five days of trial.

Additional conditions of settlement required Mercy Hospital to acknowledge that this was not a frivolous lawsuit and that it should have told the family the truth about what had occurred from the beginning. Mercy Hospital will also set up an educational program in Mr. Thornton's name.

Plaintiff's Expert Witnesses: Emilio B. Lobato, M.D., anesthesia, Steven D. Barnes, M.D., anesthesia, John H. Eichhorn, M.D., anesthesia, Stephen O. Laucks, M.D., anesthesia, Peter J. Corey, M.D., surgery, Larry R. Kaiser, M.D., surgery, Justin E. Doheny, Hospital Administration; Barry M. Shmookler, M.D., Pathology, John J. Shane, M.D., Pathology, Wayne K. Ross, M.D., Pathology; Clifford Beinart, M.D., Radiology; Bruce D. Charash, M.D., Cardiology; Dr. Adrian R.M. Upton, Neurology; Lori M. Fuehrer, RN, Nursing; Richard Fischbein, M.D., Psychiatry; Andrew G. Verzilli, Ph.D., Economist.

Defendants Expert Witnesses: Adam Hauser, M.D., Anesthesiology; Daniel Woody, M.D., Surgery; Michael Barrett, M.D., Cardiology; Thaddeus Bartter, M.D., Pulmonology/Critical Care; Paul Hoyer, M.D., Pathology; Robert Schwab, M.D., Cardiology; Edmond Cohen, M.D., Anesthesiology; John M. Field, M.D., Cardiology; W. Andrew Kofke, M.D., Anesthesiology; Jo Grandelli, RN - Nursing; J. Russell Walsh, Hospital Administration.

Plaintiff's Attorneys: Joseph A. Quinn, Jr., Michelle M. Quinn, and Joseph Lipinski of Hourigan, Kluger & Quinn, Wilkes-Barre, PA
Defendants Attorneys: John Durkin Scranton, PA and James Saxton - Lancaster, PA (for Defendants, Mercy Hospital, Wilkes-Bane, PA, Mercy Health Partners, and Mercy Med-Care, Inc. d/b/a Mercy Physician Network); Scott Kramer, Philadelphia, PA and Dana Ash, Philadelphia, PA (for Defendant, Esther McKenzie, M.D.); George Nace, Allentown, PA and Tara Reid, Allentown, PA (for Defendant, Walter J Boris, D. 0.)

Thornton v. Mercy Med-Care, Inc., No. 2951-C of 2001 and No. 5770-C of 2002 (Luzerne County Ct. of Common Pleas, Pa. Jan. 13, 2003)