Insurer must pay $13.6M after hospital death

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

Pennsylvania Law Weekly - May 12, 2003
Settlements in Medical Malpractice Suits

Date of Settlement: Jan. 13, 2003.

Court and Case Number:
C.P. Luzerne, No. 2951-C of 2001 (Thornton v. McKenzie).
C.P. Luzerne, No. 5770-C of 2002 (Thornton v. Mercy Med-Care Inc.).

Judge: Peter Paul Olszewski Jr.

Type of Action: Medical Malpractice, Corporate Liability and Informed Consent.

Injuries: Death.

Plaintiff(s) Attorney(s): Joseph A. Quinn Jr., Michelle M. Quinn and Joseph M. Lipinski, Hourigan Kluger & Quinn, Wilkes Barre.

Defense Attorney(s): John Quinn Durkin, O Malley Harris Durkin & Perry, Scranton (Mercy Hospital, Wilkes-Barre; Mercy Health Partners; and Mercy Med-Care Inc. d/b/a Mercy Physician Network); J. Scott Kramer and Dana Jeffrey Ash, Duane Morris, Philadelphia (Esther McKenzie, M.D.); and George M. Nace III, Post & Schell, Allentown (Walter J. Boris, D.O.).

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

Defendant(s) Expert(s): For Walter Boris, DO.: Adam Hauser, M.D. (anesthesiology); Daniel Woody, M.D. (surgery); and Michael Barrett, M.D. (cardiology). For Esther McKenzie, M.D.: Thaddeus Bartter, M.D. (pulmonology/critical care); Paul Hoyer, M.D. (pathology); Robert Schwab, M.D. (cardiology); and Edmond Cohen, M.D. (anesthesiology). For Mercy Hospital: John M. Field, M.D. (cardiology); W. Andrew Kofke, M.D. (anesthesiology); Jo Grandelli, R.N. (nursing); and J. Russell Walsh (hospital administration).

Comments: Plaintiff Dorothy Thornton brought a medical malpractice, corporate liability and informed consent action against Dr. Esther McKenzie, Dr. Walter J. Boris, Mercy Hospital in Wilkes Barre, Mercy Health Partners, and Mercy Med-Care Inc. d/b/a Mercy Physician Network, on behalf of the estate of 73-year-old Frank Thornton, who died following complications during surgery to remove a lesion.

Thornton was admitted to Mercy Hospital on Aug. 17, 2000 to undergo a biopsy and possible lobectomy related to a 1-centimeter nodule that had been discovered on an incidental x-ray performed several months earlier.

According to a summary of the case provided by plaintiffs counsel, defendant Dr. Walter J. Boris advised Thornton that he required surgery, even though the lesion remained stable in size and the interpreting radiologist recommended only that a repeat diagnostic study be done in three months. Boris later said that he never gave the patient the option of having a fine needle biopsy.

The plaintiff's summary said that on the morning of the surgery, defendant Dr. Esther McKenzie, a locumtenens anesthesiologist, was assigned to Thornton's surgery. McKenzie intubated Thornton with a double-lumen endotracheal tube around 8:30 am. and attempted to verify the position of the tube via bronchoscopy. When she could not identify tracheal rings, she asked Boris to check placement, and he was likewise unable to identify tracheal rings. McKenzie and Boris then discussed whether it was feasible to proceed with surgery without confirming tracheal placement of the rube.

The plaintiff's summary said that 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, but she did not notify either physician. Six to 10 minutes after the initial intubation, the breathing tube was replaced and Thornton s condition immediately improved. Nonetheless, he had already sustained diffuse and irreversible brain injury due to the lack of oxygen.

The plaintiff's summary asserted that after the incident, Thornton's family was not told what had happened in the operating room. Thornton s counsel requested the medical records, which, the plaintiff s summary said, did not reference abdominal distension or that the tube was misplaced.

Three weeks after the surgery, Thornton was transferred to Hershey Medical Center, and life support was discontinued approximately one week later. At the request of the Dauphin County coroner, Dr. Wayne K. Ross performed an autopsy and suspected that Thornton had died as a result of an esophageal intubation, the plaintiff s summary said. Ross then asked that an anesthesiologist, Dr. Stephen Laucks, review the records. Laucks concluded that Thornton sustained irreversible brain damage as a result of inadequate ventilation. Accordingly, Thornton s official death certificate listed his cause of death as therapeutic misadventure.

After suit was filed, Boris was deposed and claimed lack of recall as to the events, but the hospital's risk manager later testified that 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, the plaintiff's summary said.

At trial, Mercy Hospital admitted that McKenzie was not properly credentialed and that her privileges had lapsed nine days before Thornton's surgery, according to the plaintiff s summary. Additionally, the plaintiff's hospital administration expert opined that the hospital had violated about 46 licensure regulations and Joint Commission standards, as well as a number of the hospital's own internal policies and bylaws.

After five days of trial, the case was settled for $7 million. Additional conditions of settlement, the plaintiff's summary reported, 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 also agreed to set up an education program in Thornton s name.

The defense attorneys involved in the case declined to comment.