Thursday, December 09, 2010

$8 Million Wrongful Death Settlement

Bruce R. Pfaff of Pfaff & Gill, Ltd., Chicago, today reported that his clients, the survivors of a 52-year-old Chicago area woman, settled their wrongful death case against the anesthesiologist who failed to intubate her and the hospital where he was on staff. The doctor will pay his full policy proceeds of $2,000,000 and the hospital, sued under the principle of apparent agency, will pay $6,000,000. The settlement was approved by the Honorable William D. Maddux this week. The case was due to be assigned to a trial judge for jury selection.

The decedent, who worked in a non-paying capacity at an area church, went to the hospital for surgery to remove an enlarged thyroid gland. General anesthesia after an “awake” intubation was planned by the anesthesiologist. Despite what the anesthesiologist said were two very small doses of a sedative, his patient suffered a respiratory arrest. According to Pfaff, the family’s lawyer,

“This respiratory arrest should have prompted immediate action by the anesthesiologist—he should have asked the surgeon, standing by to do the thyroid surgery, to do a tracheostomy. It is clear from the majority of witnesses in the OR that the anesthesiologist did not request a tracheostomy right away but attempted unsuccessfully for many minutes, with his patient in full respiratory arrest, to intubate and ventilate his patient. During this time, massive, irreversible brain damage occurred, leading to death 8 days later.”

The anesthesiologist was deposed once early in the case and the second time late in the case. In his first deposition, he said that it took the surgeon 12 minutes to complete the emergency tracheostomy. After all the other fact witnesses were deposed, who indicated that the surgeon completed the trach in 1-2 minutes, the anesthesiologist modified his testimony to say that the surgeon obtained an airway in 4-5 minutes. The surgeon, who was sued based on the indication that he took too long to do the tracheostomy, was voluntarily dismissed from the case after discovery was completed. The family made no settlement demand on the surgeon’s lawyers believing he did nothing wrong.

The anesthesiologist revealed in the second deposition that he prepared almost every entry of the anesthesia record two hours after the arrest. He explained that he went to the anesthesia monitor machine and used its “track back” features to see the vital signs, pulse oximetry readings, and end tidal CO2 readings. What he charted in the anesthesia record even after “tracking back” was “inaccurate” or “not true” per the doctor’s own testimony. He also noted he could have printed the accurate data concerning the patient from the anesthesia monitor machine but did not do so. “A doctor or nurse making a late entry must chart it as a late entry—this anesthesiologist did not do so. His record described a situation that was a false representation of what occurred in the OR. Even the anesthesiology experts hired to defend the case, Dr. Jeffrey Vender, Evanston and Dr. Kenneth Tuman, Chicago, had to admit that the false charting represented deviations from the standard of care,” according to Pfaff.

Despite the strength of the evidence of medical negligence, defense experts Vender and Tuman continued their long-standing record of testifying in support of anesthesiology defendants. Dr. Vender acknowledged to having testified at more than 150 trials as an expert, only for the defense. Dr. Tuman admits to testifying 95% for the defense in claims of anesthesiology malpractice. Both doctors denied that the defendant here provided negligent care to his patient. Plaintiff’s anesthesiology expert was Dr. Ronald Wender, Los Angeles.

The settlement proceeds, all representing loss of society damages, will be divided among decedent’s two adult children and her husband, who has since remarried.

The family was represented by Bruce R. Pfaff and Matthew D. Ports, Pfaff & Gill, Ltd., Chicago, along with William A. Vlasek, Lansing, IL. The family has requested that details of the settlement identifying them, the defendants or the case caption be omitted from any publication concerning this case in order to preserve their privacy.

Defense lawyers involved in the case were: John Smith and Howard Pikel, Pretzel & Stouffer, Chrtd., Chicago, for the anesthesiologist; Barry Bollinger and Mike Krause, Bollinger, Ruberry & Garvey, Chicago, for the hospital; and Mauri Thomas, Fedota, Childers, Chicago, for the surgeon.

For more information please contact Bruce Pfaff at (312) 828-9666 or by e-mail.

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