Posted on Jun 13, 2006
Jury Awards $30M in Med-Mal Suit, but High-Low Hides Outcome
The Legal Intelligencer
June 13, 2006
A Philadelphia jury has awarded $30 million -- the largest verdict seen in the 1st Judicial District in years -- to the family of a 5-year-old South Jersey boy whose severe cognitive and developmental deficiencies were alleged to have resulted from the misadministration of a blood-clot-busting medication.
The boy was treated with the medication several years ago while a patient at the Children's Hospital of Philadelphia.
However, the actual disposition amount in Keenan v. CHOP is officially under wraps, as the parties reached a confidential high-low agreement shortly after the jury began its five-day-long deliberations.
Philadelphia Common Pleas Judge Victor J. DiNubile, who presided at trial, has refused to authorize the release of a transcript generated when DiNubile and both plaintiffs and defense counsel addressed the settlement in the presence of an official court reporter.
Defense attorneys Richard Kolb, Mary Kay Schwemmer and Daniel Martz of White & Williams did not respond to requests for an on-the-record interview.
Plaintiffs attorney Gayle Lewis of Media, Pa., who handled the case with associate Matthew Schelkopf, was willing to answer The Legal Intelligencer's questions about the Keenan litigation, but not about the high-low entered into by the parties.
According to court papers filed in the matter, Daniel Keenan, a twin, suffered the worst of a November 2000 breech birth. Soon into his infancy, regular infantile spasms began to require frequent hospitalizations, and, ultimately, a feeding tube and daytime nursing care.
But Daniel's parents, plaintiffs Betty Jean and Gerald Keenan, claimed that Daniel would have had a chance for a full, or at least partial, recovery from the damage caused by his infantile spasms had it not been for a massive stroke. That stroke was allegedly caused by improper treatment of a blood clot that developed in Daniel's thigh during a multi-week March 2002 stay at CHOP stemming from his chronic seizure disorder.
According to court papers filed by the plaintiffs, Daniel, just over 1 year old in March 2002, developed a blood clot in the general area where an IV line had been attached.
CHOP staff treated Daniel with a tissue plasmogen activator (TPA), colloquially known as a clot-busting agent, and the plaintiffs asserted at trial that CHOP's lack of protocol with respect to treating pediatric patients with TPAs led to a failure to timely recognize and treat the stroke.
But the defense contended in court papers that Daniel's tragic fate has been brought on by West syndrome, which results in infantile seizures and spasms. It has been the persistence of the seizures caused by Daniel's condition that has resulted in his severe retardation and developmental difficulties, the defense has contended.
According to court papers and the matter's docket, the Keenans filed suit against CHOP and a number of individual doctors, including: Ralph DeBernardinis, a pediatric resident involved in Daniel's March 2002 hospitalization; Alison Ballantine, a pediatrician who cared for Daniel following the blood clot incident; Robert Clancy, a pediatric neurologist who had treated Daniel during pre-2002 stays and visits and consulted with the family in March 2002; Lawrence Brown, a pediatric neurologist who was involved in the March 2002 stay; Troy Dominguez, a critical care pediatrician involved early in the March 2002 stay; and Leslie Sutton, a neurosurgeon involved in the March 2002 stay.
The cases against DeBernardinis, Ballantine, Clancy and Brown were discontinued with prejudice over the course of this May, while the jury found in favor of Dominguez and Sutton following trial.
But on May 26, the jury found against CHOP, as well as two individual physician defendants: Haewon Kim, the pediatric hematologist assigned to evaluate Daniel after the March 2002 blood clot in his thigh was diagnosed; and Mark Helfaer, the chief of CHOP's intensive care unit in March 2002.
According to the docket, the jury apportioned liability at 50 percent as to CHOP, and 25 percent as to Helfaer and Kim each.
According to plaintiffs attorney Lewis, the Keenans stuck to a $50 million demand during the early phases of the litigation, with no official offers from the defense. The demand was later brought down to about $28 million shortly before trial.
The trial lasted 15 business days over the course of three weeks; two of the three alternate jurors were used, Lewis said. The 12-member panel reached its verdict after five days' deliberations over the course of one week.
The jury's breakdown on its $30 million verdict called for $5 million in past medical costs, $10 million in future medicals, and $15 million in pain and suffering, Lewis said. The jurors were polled at 10-2 as to the liability finding against Helfaer and Kim, and 12-0 as to its finding against CHOP, she added.
Several issues played central roles in the litigation, according to Lewis and court papers:
The defense sought to have the trial bifurcated, but that motion was denied by DiNubile, Lewis said.
The defense moved to preclude the presence at trial of Daniel, citing the emotional impact it would have on the jury. DiNubile denied that motion, Lewis said, and Daniel was present for part of one trial day, when a plaintiffs’ expert discussed the medical care that Daniel currently requires.
It was heavily contested not only how much care Daniel currently requires, but also how long he might expect to live, Lewis said. Daniel required 16-hour-per-day nursing care, as well as a feeding tube, before his March 2002 stay at CHOP. But the Keenans argued that Daniel needs round-the-clock professional care. Lewis also said a defense expert testified at trial that it is unlikely Daniel will live past the age of 10.
And finally, the Medical Care Availability and Error Reduction Act cast its long shadow over Keenan. The March and April 2002 events at issue in the case bookended the act's March 2002 effective date, and Lewis said it was not clear whether the act should have applied to the case. However, the plaintiffs ultimately chose to focus on events that pre-dated MCARE's becoming effective.
The trial's main expert witness battle came from testimony offered concerning the treatment of Daniel's blood clot, according to Lewis.
She said that the Keenans called to the stand Brian McCrindle of the University of Toronto's Hospital for Sick Children in Ontario, Canada. McCrindle, a pediatric cardiologist, has done extensive research on the effects of TPAs on child patients.
The defense in turn called one of the world's leading experts on clot formations, Patricia Massicotte, a pediatric professor at Canada’s University of Alberta.
McCrindle and Massicotte, who used to work at the Hospital for Sick Children, had worked on a leading TPA study together, Lewis said.
When asked if she was happy she had entered into the high-low after hearing the jury's verdict, Lewis expressed mixed emotions, but stressed that she is pleased the Keenans will be able to start receiving much-needed money as soon as possible.
"It's wonderful to get a huge verdict, but a verdict can be taken away or modified," she said, adding later, "To delay [receipt of] any money for, say, five years, would not be in Daniel's best interests."
The actual jury verdict in Keenan is the largest reported by The Legal Intelligencer as having been awarded to a med-mal plaintiff by a Philadelphia panel in recent years.
According to statistics maintained by the state Supreme Court, there were no med-mal verdicts for more than $10 million in Philadelphia in 2005, and only three in that category in 2004.