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As a result of a full day of mediation, three Cleveland attorneys were able to reach a $22.5M medical malpractice settlement on behalf of a woman who was paralyzed in the course of delivering of her stillborn child.

The agreement came only after the plaintiff’s lawyers Charles Kampinski, Christopher M. Melino, and Laurel A Matthews convinced defense counsel that alternate explanations for the plaintiff’s injuries did not jibe well with the evidence they gathered.

Kampinski and Matthews also said their case, Doe v. ABC Hospital, marked a triumph of facts over theory.

“We had direct positive evidence that [a] solution was injected into [the plaintiff’s] spinal canal which adequately described what occurred to her,” Kampinski asserted. “So why look for an esoteric theory when you had factual explanations for what occurred?”

On Jan. 20th, 1999, the plaintiff was admitted to the defendant hospital for delivery of a stillbirth. She was administered some morphine for the pain. An anesthesiology assistant made several unsuccessful attempts to administer an epidural that the plaintiff had requested. Eventually, an anesthesiologist intervened, inserted the needle, and left the room.

Immediately following the insertion of the anesthesia catheter, and despite being sedated, the plaintiff complained of a severe headache.

Air injected into her spinal canal had traveled to her brain.

The plaintiff developed a “high spinal” because, if the needle is inserted too far, the anesthesia is injected into the spinal canal instead of under the skin. A “high spinal” can stop the patient’s breathing because the anesthesia travels up the spinal cord and paralyzes the respiratory system.

The plaintiff’s family left for dinner but secured a promise from a nurse to monitor the plaintiff for any breathing difficulties.

When they returned, they found the plaintiff alone. She was not breathing.

The anesthesiologist and the anesthesiology assistant responded to the emergency code. Although the assistant had never intubated a patient during an arrest, the anesthesiologist instructed him to intubate the plaintiff.

The assistant placed the tube in the esophagus instead of the trachea, and there was a 15-min delay before the plaintiff was properly intubated.

The plaintiff suffered severe brain damage and is paralyzed and unable to communicate.

According to Kampinski, defense counsel maintained that the hospital committed no error and contested liability fairly vigorously. “The defense had multiple experts from all over the country giving opinions that ‘high spinals’ can occur even in the best of circumstances,” said Kampinski.

He acknowledged that “high spinals” are always a risk when administering an epidural, but noted that that is precisely why the patient must be monitored after the administering of the anesthesia.

Nevertheless, there were 15 minutes of vital sign reporting missing from the plaintiff’s anesthesia record during the critical period after the epidural when blood pressure needs to be monitored carefully.

Kampinski said defense counsel argued that the plaintiff’s symptomatology was such that no one should have been alerted to the fact that she had a “high spinal.” He reminded defense counsel that, immediately after the epidural, the plaintiff complained of a headache and then developed low blood pressure that could not be corrected with medication.

“All of which is evidence of an increasing ‘high spinal,’ Kampinski said. He said he pointed to the CT scan showing air in the plaintiff’s brain which was “clear evidence” that the plaintiff experienced a “high spinal.”

“In other words,” he said, “somehow that air had to get into her brain, and the only route, based on what was done to her, was through this needle.”

A theory proposed by the defense toward the end of negotiations challenged Kampinski’s team to further rebut defense contentions with facts.

“They came up with a theory of amniotic fluid embolism near the end,” Kampinski said.

Matthews explained that, during the deposition of the defense’s lab expert, the expert “determined out of the blue” that the plaintiff not only had an amniotic fluid embolism but also suffered “an infusion of septic material” through this embolism.

“As evidence for that,” Matthews continued, “he pulled out of the medical records the fact that the cultures in the fetus were positive for the same organism that later grew out of our client’s blood.”

The theory implied that the amniotic fluid was contaminated and the mother became contaminated with this infusion of contaminated fluid, Matthews explained.

This theory also drew from certain laboratory abnormalities such as indications that, after the plaintiff’s arrest, the plaintiff had a clotting problem in her blood.

“That happens a lot in that stage,” countered Kampinski.

Kampinski and Matthews said they refuted the defense theory on a piece-by-piece basis, wielding medical facts against medical theory. The fact that the fetus and the plaintiff had the same bacteria coincides with many other theories — not just the amniotic fluid embolism theory, they said. So careful scrutiny of the facts would be necessary to explain what happened to the plaintiff.

Then Kampinski again outlined the evidence that pointed to the occurrence of a “high spinal.”

Reliance on the medical facts to rebut the medical theories suggested Occum’s Razor.

Kampinski noted the evidence he obtained supported a simple theory of medical malpractice and that the more complicated medical theories — where not inconsistent with the facts — were comparatively “esoteric.”

“That’s basically how he dealt with them,” Kampinski said.

Kampinski recounted how the report of one defense expert indicated that there was indeed a “high spinal,” but that he was withdrawn as a witness once the defense came up with its new theory.

He said the defense sent a letter to his office announcing their intent to “substitute” the proponent of the amniotic fluid embolism theory for the withdrawn expert.

“It wasn’t a substitution,” asserted Kampinski, “it was a complete change.”

He said he had planned to use that report of the withdrawn expert if the case went to trial. Matthews added that, by learning all the medical facts available to recreate what was happening and when, their team was able to attack defense expert witnesses with whatever facts contradict their theories and opinions.

“The focus is, if you know your facts and you have the sequence down, you can trap these people,” she said.

Injury: Jane is now catastrophically brain injured, living in a nursing home. She is alert, but is paralyzed and unable to communicate. She has a devoted hus­band who has been forced to quit his job to assist with her care, and a 3-year-old child.

Result: $22,500,000.00 settlement.

Plaintiff's Expert Witnesses: William Berger, M.D., Anesthesiologist, San Francisco, CA; Sivum Ramanathan, M.D., Anesthesiologist, Pittsburgh, PA; John Conomy, M.D., Neurology, Cleveland, OH; John F. Burke, Jr., Ph.D., Economist, Cleveland, OH; George W. Cyphers, Rehabilitation Counselor, Cleveland, OH

Defendant's Expert Witnesses: Stephen C. Dodge, Annuitist, Charlotte, NC; Charles H. Breeden, Ph.D., Economist, Oconomowoc, WI; Robert Jackson, Life Care Planner, Oak Brook, IL, David C. Brandon, M.D., Anesthesiologist, Potomoc, Md.; Bruce L. Flamm, M.D., OB/GYN, Riverside, CA; Jeffrey S. Vender, M.D., Anesthesiologist, Evanston, IL; Ronald E. Cranford, M.D., Neurology, Minneapolis, MN; Will­iam E. Dirkes, M.D., Anesthesiologist, Cincinnati, OH, Margaret M. Jukanovic, Willowick, OH.

Plaintiff's Attorneys: Charles Kampinski, Christo­pher M. Mellino and Laurel A. Matthews of Kampinski & Mellino Co., L.P.A., Cleveland, Ohio.

Doe v. ABC Hospital, (Cuyahoga Cty. Ct. of Com­mon Pleas, Cleveland, Ohio Aug. 2000)




Aug 1, 2000


Medical Malpractice

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