Tuesday, May 15, 2007

Medical case wins $2.27M

By Heather Stauffer, Sentinel Reporter, April 26, 2007

A $2.27 million verdict handed down in a medical malpractice lawsuit Friday may be the largest verdict ever awarded by a Cumberland County jury in a personal injury matter, according to the plaintiff’s attorney.

“Cumberland County is notoriously a difficult county to bring a medical malpractice case in,” said Daniel Weinstock, who with attorney Carolyn Chopko represented Carlisle residents Gerard and Linda Boullianne in a case concerning the birth and death of their son, Christian. “I think this case sort of demonstrates that if the case is clear enough, a medical malpractice case can be won in any venue.”

Weinstock said he talked to court personnel who said they thought the verdict was the largest of its kind ever awarded in the county. The Sentinel has not been able to confirm whether that is the case.

The lawsuit was filed in 2002. According to the plaintiff’s pre-trial memorandum, Christian Boullianne was born at Carlisle Hospital on Jan. 26, 1999, with severe brain damage and spastic cerebral palsy. He was delivered by nurse midwife Pamela Kozick of the former Women’s Health Associates of Carlisle.

The plaintiffs said that Christian’s condition was caused by Kozick’s negligent failure to recognize obvious signs of fetal distress during labor. On Friday the jury agreed, handing in a verdict that found Kozick negligent and a substantial factor in bringing about harm to Christian. It awarded the Boulliannes $273,471.61 under the Wrongful Death Act and $2 million under the Survival Act.

Also named in the suit was Women’s Health Associates of Carlisle, which dissolved in 2003 and was replaced by Women’s Health Specialists of Carlisle.

“It all really involves the malpractice situation,” member Dr. John Lowthian told The Sentinel in 2003. “To be honest with you, we can’t afford malpractice premiums. We either have to move out of state or become an employee of someone who is self-insured and can absorb the cost.”

The former Carlisle Hospital, whose liabilities were assumed after its sale by the Carlisle Area Health and Wellness Foundation, also was originally named in the suit but was dismissed with prejudice on April 10 of this year.

Monitoring at issue

Weinstock said his case was based on fetal monitor readings, which he said were “non-reassuring” for the last hour and 24 minutes of the labor.

“The defendant is a nurse midwife,” Weinstock said of Kozick. “There’s a very clear hospital policy that says if the (fetal monitor) strips are non-reassuring, she needs to call a doctor. She failed to do that.”

Throughout the trial, Weinstock said, Kozick maintained that the readings were completely normal.

But attorney Peter Curry, who represented Kozick, said that wasn’t completely correct.

“It was our position that the fetal monitor strips for the last 30 minutes, maybe even 40 minutes, were normal, within the normal range,” Curry said. “Earlier there were some indications that the strips were — there were signs on the strips that needed attention, and midwife Kozick responded appropriately.”

Curry described Kozick as “extremely well educated, certainly experienced, and extremely competent.”

“I think it’s unfortunate that I wasn’t able to persuade the jury that our position was correct,” Curry said, “but I also recognize that that’s how the system works, and it’s the best system we have.”

Reviewing appeal option

He said he and his client are “still reviewing” whether to appeal the verdict.

Curry also said that he asked Kozick not to comment to the press. Kozick did not respond to a message left for her at her office.

A check with the Pennsylvania Department of State shows that she has been licensed as a registered nurse since 1977 and as a midwife since 1996. Both licenses are current and in good standing, and no disciplinary actions were found against either.

Department of State spokeswoman Leslie Amoros said that a guilty verdict in a civil trial does not trigger an automatic review of the defendant’s license. However, she said, if the agency learns of such a verdict, it may take a look at the situation.

“We will look at it, check it out, and if it falls within our jurisdiction and appears there may be some violation of licensure laws, we will proceed with opening a file,” she said.

Weinstock, who called many medical experts to support his position, said, “Their opinions were all strongly supported by objective medical literature that wasn’t prepared for litigation at all.” Because juries often don’t know which expert is right and which is wrong, he said, the medical literature can be a tie-breaker.

Weinstock noted that the award was more than the plaintiff demanded. The plaintiff’s pre-trial memorandum shows an initial demand of $1.75 million.

“It could have been settled for much less,” he said. “The defense refused to make any offer at all.”

“I hope she learned her lesson,” said Gerard Boullianne of Kozick, who is currently practicing with Women’s Health Specialists of Carlisle. “I hope she puts nobody else through this like she put us through.”

Normal pregnancy

Boullianne said his wife had a normal, healthy pregnancy up to delivery, and that they had no misgivings about having Kozick as the attendant.

“We thought she was fully competent,” Boullianne said. “She seemed to know what she was doing.”

But, he said, within about 10 minutes of Christian’s birth, he began to get concerned.

“I used to be an EMT, so I know how to read a birth monitor,” he said. “It didn’t look good.” He also saw his son’s color change, he said.

When he voiced that concern to Kozick, he said, she ignored it.

“Basically she didn’t want to hear what I had to say,” he said. Boullianne noted that the trial did not address the issue of what cut off Christian’s blood or oxygen supply, instead focusing on Kozick’s failure to call a doctor.

As soon as Christian was born, his father said, they knew something was wrong.

“He looked dead,” he said, “but they found a faint heartbeat, and they capitalized on that. They resuscitated him.”

Christian spent the first four weeks of his life on life support, Boullianne said, and even after that he required around-the-clock care. “We bought a special van and everything.”

“My family and friends pulled together and helped us,” he said. Because he worked evenings, he said, he would cover the night shift, nurses would come from 6 a.m. to 2 p.m., and his wife covered the rest of the time.

Seeking justice

Before Christian died at age 2, Boullianne said, he had talked to a local attorney about legal action. The attorney told him he didn’t have a case, he said.

Later, Boullianne said, a television ad featuring attorneys who specialize in medical malpractice lawsuits encouraged him to try again. Eventually the Boulliannes got in touch with Weinstock, an attorney with the Philadelphia firm of Feldman, Shepherd, Wohlgelernter, Tanner & Weinstock who specializes in medical malpractice lawsuits.

Boullianne and his wife decided to sue, he said, because they wanted justice. And that, he said, is what they got.

Boullianne said he hopes the case encourages other practitioners, particularly nurse midwives, to be a lot more careful.

“If there’s any question about the health of the child, they should contact the doctor immediately and let him make the decision,” he said. “They should be more willing to call the doctor, instead of being afraid of getting in trouble.”

The most important thing, he said, is saving the life of the child.

“My wife cries about him (Christian) all the time,” Boullianne said.

source : www.cumberlink.com

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