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Personal Injury Verdicts & Awards

Thornton v. McKenzie $7 Million Settlements

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.

PLEASE NOTE: Every case is fact specific, and these results do not guaranty the same results will be obtained in a different case.

About HKQ Law

Hourigan, Kluger & Quinn is considered one of the top civil litigation and commercial law firms that has had the privilege of representing more families in the courtroom than any other NEPA firm. The attorneys at HKQ Law have been honored as Super Lawyers, Best Lawyers, Best Law Firms by US News and World Report, and have received the AV Preeminent Rating by Martindale-Hubbel. HKQ Law was recently recognized for one of the top 20 Verdicts in Pennsylvania.

The firm’s Personal Injury Team, led by Attorney Joe Quinn, Jr., has won some of the largest verdicts and settlements in the region's history. The Personal Injury Team focuses on a wide array of personal injury claims and civil litigation, including medical malpractice, auto and truck accidents, aviation accidents, unsafe vehicles, dangerous or defective products, workplace injuries (worker's compensation), construction site accidents, claim denials by insurance companies, dangerous drugs, defective children's products, nursing home abuse and neglect, and falls due to unsafe conditions (slip and fall).

Attorney Joseph A Quinn, Jr. is one of only 100 attorneys in the United States (and one of only three in Pennsylvania) honored with membership in the Inner Circle of Trial Advocates, and one of only 500 attorneys worldwide chosen to be a Fellow of the International Academy of Trial Lawyers. He has been a Pennsylvania Super Lawyer every year since the program began and has been listed in The Best Lawyers in America every year since the publication was established in 1987. Best Lawyers also named him top personal injury attorney for Northeastern Pennsylvania and the Lehigh Valley. In addition, Best Lawyers, in conjunction with U.S. News & World Report, has designated HKQ a Tier 1 Best Law Firm across multiple categories in Northeastern Pennsylvania and the Lehigh Valley.

Since the inception of the firm, the Commercial / Corporate Team led by Attorney Allan Kluger has provided comprehensive, integrated legal services to many of Northeastern and Eastern Pennsylvania's largest corporations, businesses, banks, non-profits and institutions, handling matters involving labor and employment, wills, trusts and estate planning, estate administration, elder law, commercial transactions, residential and commercial real estate, zoning, land use and development, telecommunications, mediations and arbitrations, commercial litigation, title insurance, business planning and business succession, corporate/business structuring, employment discrimination law for employers, banking, creditor’s rights, finance, lender liability defense, covenants not to compete, construction law, mergers and acquisitions and other business matters.

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