$4.7M Verdict in Punctured Esophagus MedMal

Posted by msch on Jun 17, 2011 7:48:00 PM

Crane Johnstone and Robert Cousins and Jeffrey Creasman and Tom Heath AttorneysKalitan v. Alexander (Fort Lauderdale, Florida)
Susan Kalitan suffered a perforated esophagus during intubation for anesthesia prior to surgery for carpal tunnel syndrome. The perforation was not detected, and subsequently caused severe harm.

In his closing argument for Dr. Alexander, Robert Cousins (Quintairos Preito) pointed out that the mere occurrence of bad things that should not happen does not mean that there was negligence, and in this case the risk of negative outcomes was disclosed to the patient.

Cousins read to the jury from a patient disclosure form: "'There is a minimal possibility of bleeding or perforation'...and so, ladies and gentlemen, this is a known and recognized complication...Should it happen? No. But does that mean there's negligence? Absolutely not." In this case, said Cousins, there was nothing in the post-anesthesia procedure, under the circumstances, at the time, that should have alerted Dr. Alexander to a potential problem. Therefore, his failing to recognize the perforated esophagus did not breach the standard of care.

Representing Barry University, which trained student nurse Eleidy Miedes, who allegedly caused the injury to Ms. Kalitan's esophagus, Jeffrey Creasman (Quintairos Prieto) told the jury "There's not a shred of evidence in this case ladies and gentlemen that Ellie Miedes did any endotrachael intubation [which was the procedure that allegedly caused the injury]. None. Not a single witness has said that....that entirely exonerates my client." Even if Ms. Miedes did any part of the procedure that injured Ms. Kalitan, Mr. Creasman continued, Miedes would be held to the standard of care of a student nurse directly supervised by a physician, and she would not have been expected to anticipate a difficult airway.

Representing Broward General Medical Center, Tom Heath (Heath Carcioppolo) told the jury that Broward's nurses were top-notch critical care nurses who behaved properly throughout Ms. Kalitan's stay. The nurses discharged Ms. Kalitan because she was medically stable and not in pain.

In his closing rebuttal, Crane Johnstone (Schlesinger) told the jury, "What you've seen is the attorneys for a month now and in closing remarks defend the indefensible. And, that's what defense attorneys do. They speak for the defendants, and they will even, in a case like this, do what they have done, which is defend the indefensible."

Reminding the jury of a nurse's testimony, Mr. Johnstone said, "It was inexcusable and it was below the standard of care for three nurses to have heard from Susan about the pain that she had after a minor wrist procedure and not serve as an advocate and speak for her to make sure that the doctor came, or the nurses higher up in the hierarchy -- the charge nurse, the supervising nurse -- to get someone to see this woman before she went home...The pain she was experiencing was so severe she could barely stand up, and then got more pain medication, and it put her to sleep."

"They never get a physician in to see her, despite the rules and the regulations of the hospital, that say that the etiology -- the cause of this pain -- should be determined if at all possible. And nobody did that...They never checked on her that afternoon to make sure that when the pain medication wore off she was ok, and that she didn't require further help from her doctor. When they finally called her the next day, they called the wrong number. That's the evidence in the case. That's the care she got."

Moreover, said Mr. Johnstone, nurse Miedes was on academic probation at Barry University and had subpar clinical marks at the time she cared for Ms. Kalitan, including her marks in Physiology and Difficult Airway Assessment.

The jury found negligence on the part of all defendants, assigning 50% to Dr. Alexander, 35% to Broward Medical Center, 5% to the student nurse, and 10% to the student nurse's supervisor, who was acting on behalf of Barry University.

The jury found that Ms. Kalitan suffered a catastrophic severe closed head injury and awarded damages as follows: Past medical expensese: $142,704; future medical expenses: $472,287; past lost earnings: $55,220; future lost earnings: $47,800; past general damages including pain & suffering: $2M. Future general damages: $2M. The total damage award was $4,718,011.

CVN webcast the Kalitan medical malpractice trial live.

Topics: Negligence, Kalitan v. Alexander, Medical Malpractice