The Legal Intelligencer
November 17, 2010
by Amaris Elliott-Engel
The Pennsylvania Superior Court has upheld a $20 million award, including $15 million in punitive damages, given by a Philadelphia jury that found a plastic surgeon and a nurse anesthetist liable for an 18-year-old college student’s death after an elective liposuction procedure.
In a non-precedential decision issued by a three-judge panel Friday, Judges Mary Jane Bowes and Susan Peikes Gantman and Senior Judge John T.J. Kelly Jr. ruled in favor of almost all of the plaintiffs’ claims. Gantman concurred in the result only, according to the opinion in Fledderman v. Glunk.
Plaintiffs Daniel H. and Colleen M. Fledderman sued on behalf of their deceased daughter, Amy M. Fledderman, as well as on Colleen Fledderman’s claim of negligent infliction of emotional distress.
After a five-week trial in 2008 before Philadelphia Common Pleas Judge Sheldon C. Jelin, the jury unanimously found plastic surgeon Dr. Richard P. Glunk, as well as Main Line Plastic Surgery & Laser Associates, 75 percent responsible for Amy Fledderman’s death. The jury found nurse anesthetist Edward J. DeStefano Jr., as well as Ambulatory Anesthesia Associates Inc., 25 percent responsible.
Fledderman sought elective liposuction for her chin, abdomen and flanks May 23, 2001, the opinion said.
The jury awarded $15 million in punitive damages against Glunk, $2 million for Glunk negligently inflicting emotional distress on Colleen Fledderman, and $5,000 for Glunk’s failure to obtain Amy Fledderman’s informed consent, The Legal previously reported. The jury also awarded $3.5 million under the Survival Act and $20,000 under the Wrongful Death Act against both Glunk and DeStefano, The Legal previously reported.
During the liposuction on Amy Fledderman’s neck, Glunk ruptured a blood vessel, the opinion said. Her oxygen saturation dropped, her blood circulation became unstable, her heart rate rose, and DeStefano testified that “Amy’s neck suddenly bulged with blood, swelling to twice its normal size,” the opinion said.
DeStefano made Glunk stop the liposuction, and DeStefano reversed the anesthesia, according to the opinion. But Amy Fledderman did not awaken, and Glunk refused to let her mother see her in the operating room and he refused to send Amy Fledderman to a hospital emergency room for close to three hours, the opinion said.
When an ambulance crew finally was called and arrived at Glunk’s office, Amy Fledderman was in “critical condition” and in “severe respiratory distress,” the opinion said.
Amy Fledderman was diagnosed with respiratory failure and with a fat embolism entering her bloodstream, the opinion said. Amy Fledderman died two days later after she was transferred from Montgomery Hospital to the Hospital of the University of Pennsylvania, The Legal previously reported.
“The evidence in this case, taken in the light most favorable to the Fleddermans as the verdict winner, illustrates an appreciation of the risks and a conscious disregard for those risks on the part of Dr. Glunk that would support a claim for punitive damages,” the opinion said. “Dr. Glunk ignored both the warning signs of a medical emergency and a mother’s desperate pleas for transfer to a hospital.”
The opinion continued: “Despite respiratory distress, and the pleas of Mrs. Fledderman to transport her daughter to a hospital, Dr. Glunk maintained that hospitalization was unnecessary. Critical hours passed when Amy needed care only available at a hospital. Dr. Glunk failed to act. He did not have the protocols in place to swiftly arrange for emergency transport. Experts testified that the two-and-one-half hour delay in calling an ambulance increased the risk of Amy’s death.”
Glunk also wanted Amy Fledderman to be admitted on a non-emergency basis, he tried to get Colleen Fledderman to call their family doctor and have her daughter admitted under that physician’s authority, and he requested no lights and sirens when an ambulance was finally summoned, the opinion said.
Finally, the opinion said it was appropriate to instruct the jury that they could make an adverse inference against both defendants from the fact that Glunk did not keep track of Amy Fledderman’s vital signs in her medical chart and DeStefano had not printed off the data kept on an anesthesia monitoring machine before shutting off the machine.
The panel mainly ruled in favor of the Fleddermans’ appeal of Jelin’s ruling denying delay damages.
Plaintiffs’ attorney of The Beasley Firm said that he would ask the Superior Court to publish the opinion, particularly because of the court’s findings on the delay damages rule, Pennsylvania Rule of Civil Procedure 238.
The opinion said that Rule 238 has the goal of encouraging settlements and to compensate plaintiffs for the loss of the use of their money during the course of litigation.
Jelin ruled that the plaintiffs were not entitled to delay damages because the Fleddermans said they would not entertain settlements.
But the panel said that even when the plaintiffs are postured against settlement, defendants should make offers of all the assets available to them in order to avoid delay damages being levied against them.
The court remanded for the calculation of delay damages.
Under The Beasley Firm’s calculations, the $20.5 million verdict could be molded to include $522,000 in delay damages, or a little more than $21 million, firm attorney Maxwell S. Kennerly said in an e-mail.
Among other arguments, the court also ruled against Glunk’s argument that Colleen Fledderman’s claim for negligent infliction of emotional stress required that she contemporaneously observed the allegedly negligent surgery.
The court also ruled against Glunk’s argument that it should not have been admitted into evidence that his facility was not licensed as an ambulatory surgical facility.
DeStefano testified that he would not have provided anesthesia during Amy Fledderman’s liposuction if he had known Glunk “had no written emergency plan, no agreement with an ambulance company, and no admitting privileges at the nearest hospital,” the opinion said.
But DeStefano was liable for negligence under his “own professional standards,” which required him “to ascertain whether the facility was licensed and accredited and had a written transfer and emergency services agreement in place before administering anesthesia in the facility,” the opinion said.
The court also ruled against Glunk’s claim that, because of the legal protection peer review provides, it should not have been admitted into evidence that his privilege to conduct liposuction on patients at Main Line Health Hospitals required a physician proctor be present.
DeStefano’s counsel, Irving Steven “Steve” Levy, of White & Williams, said DeStefano is still deciding on whether to try to appeal.
Glunk’s counsel, Dean F. Murtagh of German Gallagher & Murtagh, could not be reached for comment.
Glunk’s primary insurance policy is through Clarendon National Insurance Co. and his secondary coverage is through state insurance provider MCARE, Kennerly wrote. DeStefano is insured by TIG Insurance, he wrote.
According to court papers, the Fleddermans argue Glunk’s debt “was obtained by false pretenses, a false representation, or actual fraud, and so is non-dischargeable.”