Pennsylvania Superior Court Upholds $3 Million Verdict

June 11, 2011 (Press-News.org) The Pennsylvania Superior Court recently upheld the verdict for the estate of a woman who was 87 years old at the time of her death was awarded $3 million in a wrongful death action in Philadelphia.

A Vibrant 87-year-old

Jeanette Kessler went in for elective knee surgery. She was described by her lawyer, Ed Chacker, as a vibrant 87-year-old.

She spent time with friends, took trips to Atlantic City, played cards and was the designated driver for dinner trips with friends.

She took exercise classes weekly and participated in line dancing, he said.

Chacker commented that testimony of her friends and video of Kessler at birthday parties at age 83 and 85 helped to demonstrate to the jury what a vibrant person she was.

Court Findings

The Superior Court panel upheld the jury verdict because Kessler's expert had testified with enough certainty that her anesthesiologist's failure to communicate his decision to employ a spinal catheter caused Kessler's death.

In 2009, in Kessler v. Berman, a jury found that anesthesiologist Marvin Berman and nurse anesthetist Jeffrey Park were negligent in their care of Jeanette Kessler.

The unanimous 12-member jury found Berman 35 percent negligent and Park 65 percent negligent. It awarded $2 million for wrongful death and $1 million in a survival action.

What Went Wrong

Dr. Berman, the anesthesiologist for Kessler's knee surgery, had difficulty administering the pain medication. The epidural catheter caused problems for Dr. Berman, so he instead used a spinal catheter.

An epidural catheter is used to administer pain medication, by injecting the medication into the epidural space. This is the area inside the spinal canal formed by the vertebra.

There is a membrane in the spinal canal called the dura mater, separating the epidural space from the cerebrospinal fluid, which surrounds the spinal cord.

The important difference between an epidural catheter and a spinal catheter is that the dosage used can be larger, because of the greater amount of epidural space.

The doctors decided the spinal catheter would remain in Kessler after the surgery and be used for administering additional pain medication.

The morning after her surgery, Kessler complained of her pain, so the knee surgeon ordered a large dose (a bolus) of her medication, ropivacaine. He also ordered an increase in dosage, doubling it.

The nurse anesthetist Jeffrey Park administered the ordered dosage at 8:40 a.m., and because he had been assisting with another surgery, only remained in her room for a few minutes after giving her the pain medication and then returned to other surgery.

At 9 a.m., a different nurse entered Kessler's room and found her pale and unresponsive.

The court records indicate she had suffered a near fatal arrhythmia and had to be resuscitated. She died five days later when she was taken off life support, as was her request in her living will. If she had lived, it would have been in a vegetative state, her family was told.

"Really Drastic Consequences"

Dr. Berman's appeal argued that the plaintiff's expert witness Dr. Loren Sheren did not render his opinions to the "requisite degree of medical certainty."

Sheren had testified that the use of a spinal catheter, rather than an epidural catheter, was significant. He testified that the appropriate dosage for an epidural catheter injected into a person's spinal fluid can have "really drastic consequences."

The Duty to Communicate

The Superior Court noted, "Dr. Sheren unequivocally testified that there is a duty to communicate, that the 'whole key' in patient care is active communication and that it is the anesthesiologist's responsibility to ensure that the procedure is done properly with appropriate communication as to the type of catheter used." (Italics added)

The trial judge had concluded that Dr. Sheren's overall testimony supported the jury's verdict because Sheren testified that Dr. Berman had a duty to communicate that he had used a spinal catheter, rather than an epidural catheter.

The Superior Court panel noted the standard of care required of anesthesiologists included making sure that Kessler's other doctors and nurses knew "'if there's anything unusual about that particular catheter or anesthetic.'"

The Value of a Life

"I think that the importance of this case is that each plaintiff needs to be taken independently, and simply because someone is 87 years old doesn't mean that the value of their life is any less than someone who might be a little younger," Chacker said to the Legal Intelligencer at the time of the jury verdict in 2009.

Article provided by Gay Chacker & Mittin
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