James E. Foerstner wins $1.45 Million Verdict for Familly of Wife and Mother
In the spotlight
Delaware Law Weekly
February 07, 2007
A jury for Kent County Superior Court recently returned a $1.45 million verdict in a medical malpractice suit in which the wife and mother of the plaintiffs died a few days after her bowel was accidentally perforated during surgery. Judge Robert B. Young presided over the trial in Harrigan, et al v. Adams, et al., which ran from Jan. 8 to 19.
According to counsel for the plaintiffs, James E. Foerstner of The Beasley Firm in Philadelphia, the verdict comprised $750,000 to the estate of decedent Patricia Harrigan for loss of life and pain and suffering, plus $550,000 to Ignatius Harrigan, her husband, for loss of his wife's wage and benefit income, her companionship and her contribution to the household.
In addition, $155,000 was awarded to Harrigan's adult son Rohan Spyke under a wrongful death claim for mental anguish. Richard Galperin of Wilmington firm Morris James, counsel for defendant Diane Adams, said his client plans to appeal. The deadline to file is a few weeks away and the papers are being prepared. Bay Area Women's Care, the doctor's practice in Milford, was also a defendant.
The complaint was first filed in August 2002, followed by an amended complaint in July 2003 that included counts for wrongful death negligence, survival action negligence, wrongful death and informed consent.
Patricia Harrigan, 49 at the time, underwent surgery to excise ovarian cysts on May 24, 2001, the complaint said. The procedure was performed by Adams, Harrigan's obstetrician/gynecologist, whom she had visited because she was experiencing pelvic pain.
The same day as her surgery, Harrigan returned home. According to the defendants' answer to the complaint, they did not dispute that the bowel was perforated during surgery.
On May 28, 2001, Patricia Harrigan went to the emergency room of Milford Memorial Hospital "with complaints of fever, vomiting, inability to have a bowel movement, and significant pain," the complaint said.
Harrigan was admitted to the hospital. Two days later she had another operation to correct a small bowel obstruction. Adams and Semann Abboud performed the surgery, during which they discovered the perforated bowel, according to the pretrial memorandum and order. The patient was sent to the intensive care unit.
Near the end of the next day Harrigan suffered a pulmonary embolism, the pretrial memo said. An attempt to resuscitate her failed, and Bashara Helou pronounced her dead at 12:30 a.m., June 1, 2001.
In the pretrial memo, the plaintiffs laid out the case they would attempt to prove at trial. They contended that the first surgery was unnecessary and contra-indicted by the patient's medical history, and that Harrigan had not been properly informed of the risks and heroptions.
The plaintiffs also stated that Adams had injured the bowel, failed to recognize the injury, and failed to manage the injury from the time of surgery to when Harrigan went to the emergency room, according to the pretrial memo. They contended that Adams did not return the patient's phone calls and did not examine her.
After Harrigan returned to the hospital, the pretrial memo said, she had all the signs of a perforated bowel, including shock, dehydration and "an obvious infectious process in her abdomen."
Also alleged in the pretrial memo: Adams negligently managed Harrigan's care by not giving her antibiotics or adequate fluids, and she "disregarded all warning signs of a bowel perforation."
The pretrial memo also notes the May 30 surgery that discovered the perforation. After Harrigan was removed to the ICU, Helou, the attending physician, diagnosed her with septic shock. She died a short time later.
Harrigan underwent unnecessary pain, suffering and death, the pretrial memo said. In addition, it said expert testimony would show financial losses of roughly $535,000 from the decedent's lost earnings capacity.
At trial, Bunin Associates, actuarial-economic consultants in Wynnewood, Pa., provided the expert financial testimony.
The statement of the defense in the pretrial memo said, "Defendants expect to prove that the treatment and care rendered to Patricia Harrigan is equal to or above the standard of that degree of skill and care ordinarily employed under similar circumstance by members of the profession in good standing in this community and did not, in any event, proximately cause the injuries alleged by the plaintiff."
Foerstner, the plaintiff's attorney, explained that Adams said she had relied upon two "radiographic studies," that did not show signs of a perforation. "She relied on two tests that can be flawed," Foerstner said. "That's why she negated all the clinical symptoms."
While Foerstner said many elements contributed to the outcome of the case, one important factor was the testimony of Abboud, who participated in the second surgery on Harrigan, and Helou, who cared for her in the ICU.
The parties agreed that the physicians would not testify as to the standard of care - what steps a doctor should take when presented with certain symptoms - but would testify only about Harrigan's condition. This agreement ensured that what they said on the stand did not bleed over into the area of expert testimony, Foerstner explained. "Their testimony was very helpful in having the jury recognize that my expert's testimony was accurate," Foerstner said. "In medical malpractice cases it often whittles down to a battle of experts."
By verifying Harrigan's condition, they gave the jury another basis on which to judge the expert testimony, he said.
"The jury obviously thought about it a long time," Foerstner said. "They got the case at 3 p.m. on Thursday and didn't come back until 4:45 p.m. on Friday. It was not a rush decision. The jury thought long and hard about the evidence and obviously thought long and hard about the damages."
Galperin, the defendants' attorney, declined to discuss details of the appeal while it is being prepared. He did say that Adams "rendered adequate care at all times and sometimes things happen that aren't the fault of doctors."
