Medical Malpractice Jury Says ‘No Amount’ Will Adequately Punish Hospital
Pittsburgh attorneys are seeking a new trial in a medical malpractice case in which a jury found a hospital negligent in a patient’s death but awarded $0 survival damages because the jury said “no amount of damages will adequately punish” the hospital.
The case was tried in Allegheny County Common Pleas Court before a 12-member jury in May.
Michael Rettger, 24, died after his brain abscess allegedly was not treated in time by the staff at the Pittsburgh hospital he was admitted to, according to the plaintiffs’ pretrial statement.
The jury found in its May 23 verdict that the University of Pittsburgh Medical Center at Shadyside’s care of Rettger fell below the standard of medical care and was a factual cause of harm to Rettger, according to the jury statement attached to the verdict form. The jury awarded $2.5 million in Wrongful Death Act damages, but awarded zero dollars in Survival Act damages.
“After eight days of testimony in the case of Rettger v. UPMC Shadyside, it is the unanimous opinion of the jury that no amount of damages will adequately punish UPMC,” the jury statement said. “It is our belief that UPMC Shadyside’s policies, culture, and lack of competent supervision resulted in the death of Michael Rettger.”
In a motion brought by plaintiffs attorneys Paul A. Lagnese and David M. Paul, Esq.s in Pittsburgh, the attorneys are seeking a new trial limited to damages under the Survival Act because they believe the $0 survival damages the jury awarded is against the weight of the evidence.
Plaintiffs’ experts Thomas Claassen, a certified public accountant, and David Hopkins, an actuary, said that Rettger’s lost earning capacity was between $4 million and $15 million, according to the motion.
Lagnese said he was very surprised that the jury awarded $0 for Survival Act damages.
“For whatever reason, the jury decided to disregard the judge’s instructions and to disregard the overwhelming evidence we presented to the loss of earning capacity,” he said.
Lagnese said they were not able to talk to the 12-member jury after the verdict.
Allegheny Common Pleas Judge Timothy Patrick O’Reilly presided over the case.
The Rettger v. UPMC Shadyside medical negligence case was brought by Rettger’s brothers Erik and Kirk against the University of Pittsburgh Medical Center at Shadyside and neurosurgeon Eugene Bonaroti, as well as other defendants that were dismissed before trial.
Rettger, an accountant with Ernst & Young, was in West Virginia in November 2003 to conduct an audit of Cabell Huntington Hospital when he began vomiting and reporting a headache, according to the plaintiffs’ pretrial statement. Rettger was admitted to the hospital, and a computerized topography scan and magnetic resonance imaging of his brain revealed a large, swelling mass in his brain.
Rettger was transferred to UPMC Shadyside Nov. 15, 2003, in order to be closer to home, the plaintiffs’ statement said. According to the plaintiffs’ statement, a number of medical personnel at UPMC failed to take adequate care of Rettger during his admittance there. Most significantly, three days after Rettger’s admittance to UPMC Shadyside and when he had signs of potentially deadly brain herniation, the plaintiffs attorneys argued either a night nurse or Bonaroti failed to intervene in time to prevent Rettger’s death, according to the plaintiffs’ statement.
At 1:05 a.m. Nov. 19, 2003, Rettger’s night nurse, Kirsten Stalder, documented in Rettger’s chart that Rettger’s right pupil was fixed and dilated, a sign of impending brain herniation, the plaintiffs’ statement said.
Stalder said she called Bonaroti about the fixed and dilated pupil, but Bonaroti said that Stalder only reported Rettger’s sluggish left pupil, the plaintiffs’ statement said. Bonaroti argued he would have come to the hospital immediately if Stalder had reported the dilated pupil to him.
Stalder also failed to report Rettger’s fixed and dilated pupil to anyone else in UPMC Shadyside, failed to invoke the nursing chain of command or to call an emergency “Condition C,” the plaintiffs argued in court papers.
Rettger underwent surgery the next day, including a partial lobectomy, but “because the necessary medical and surgery measure came too late … herniation was not prevented, and could not be reversed,” the plaintiffs’ statements said. Rettger was pronounced dead at 9:03 a.m. on Nov. 20, 2003.
Because Bonaroti’s and Stalder’s stories conflicted, the jury had to choose one or the other in rendering their verdict, Lagnese said.
“It really was a case of black and white,” Lagnese said. “Both the nurse and the doctor testified unequivocally to their position.”
The plaintiffs attorneys also argued that UPMC had a significant systemic failure: the lack of a chain of command policy for nurses caring for neurosurgical patients.
UPMC argued in its defense pretrial statement that the nurses at UPMC evaluated Rettger appropriately and communicated information to his physician.
“During the overnight hours, Ms. Stalder conscientiously attended to the patient, in accordance with hospital policy, she called Dr. Bonaroti upon detection of a changed condition, then she appropriately continued with her attentive care, again contacting Dr. Bonaroti, as the need arose,” the defense statement said.
The defense also argued in court papers that survival damages were uncertain because it was unclear what path Rettger’s career would have taken and if he would have earned as much as the plaintiffs’ experts hypothesized.
Lagnese said that when the jury went out for deliberations, the defendants had made an offer for $3 million.
In a post-trial motion, UPMC is seeking a new trial on all issues, arguing that they were restricted from explaining Rettger’s medical history prior to 1 a.m. Nov. 19, 2003, to the jury and restricted from using alleged statements by Dr. Bonaroti that he didn’t respond appropriately to Stalder’s call.
Delay damages of $232,345.88 have been added to the verdict, the plaintiffs attorneys said.
David R. Johnson, Esq. in Pittsburgh and the hospital’s attorney, said he didn’t think it was appropriate to comment with new motions for a trial pending.