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Anesthsiologist successfully sued for $35M

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powermd

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Though I think the award is a tad high (oh, $30M too high..), this is a truly egregious case of medical malpractice. This case highlights, to me, how ridiculous it is to hand all that money over to one family. A better alternative, if judgments are going to be in the tens of millions, would be to compensate the family adequately for the measurable loss, plus a set, but reasonable, amount for suffering, and find a way to funnel the punitive portion of the award back into the health care system so more people can be helped. Imagine how many primary care visits $30M buys. Or immunizations. Or appendectomies. Etc, etc, etc.

Comments?

From Chicagotribune.com:

Family of boy disabled at birth to get $35 million

By Patrick Rucker
Tribune staff reporter
Published February 21, 2004

A 5-year-old boy who suffered a severe brain injury during birth while his mother's attending anesthesiologist was allegedly in the company of a hospital nurse was awarded $35 million in a record settlement Friday.

The settlement was ordered Friday by Judge Dennis Burke in Cook County Circuit Court on the advice of a court-appointed guardian for the child, Andrew "A.J." Arkebauer. Arguments in the three-week trial had ended a day earlier, and the jury had just begun deliberations when the settlement was announced.

"We're relieved to know that A.J. will be taken care of even when we're gone," his mother, Evelyn Arkebauer, said. "It gives us tremendous peace of mind not to have to worry about him when we're not here."

Friday's decision was Illinois' largest settlement or award in a lawsuit involving a brain injury at birth, said John Kirkton, editor of the Jury Verdict Reporter. "This is a huge medical malpractice settlement. Thirty-five million dollars is substantially higher than any other brain-injury-at-birth case," he said.

The child's injuries were sustained as doctors performed an emergency Caesarean section delivery at Northwestern Memorial Hospital on the evening of Oct. 4, 1998. Evelyn Arkebauer arrived at the hospital that morning experiencing labor pains.

But by the evening, after spending all day in a hospital birthing room she still had not given birth.

Just before 8 p.m., Dr. Stanley Friedell, Arkebauer's obstetrician ordered a Caesarean section and paged Dr. Edwin Lojeski, a senior attending anesthesiologist, according to Kevin Burke, an attorney for the Arkebauer family. Lojeski did not respond to that first page or a second, according to Burke. At 8:30, after having been paged a third time, Lojeski answered that he was on his way, but he did not arrive at the fifth-floor operating room until after 8:45 p.m.

Attorneys for the Arkebauer family said that an off-duty nurse testified she was alone with Lojeski in a private call room one floor below the operating room when he was being paged.

By the time Lojeski arrived at the operating room, Arkebauer's child was in fetal distress, the family said.

Andrew Arkebauer survived the birth, although Evelyn Arkebauer suffered a ruptured uterus. But her son cannot walk, talk or feed himself and will require full-time care for the rest of his life, the Arkebauers said.



Copyright ? 2004, Chicago Tribune
 

doc_strange2001

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This guy got nailed thinking with the wrong head. Poor kid is disabled forever because of it. Its alot of money but its hard to defend the doc in this situation
 

Thoinga Thoing

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The doc was definitely at fault. And thinking a bit too hard with his weener (pardon the pun). The interesting thing to me was, considering that this is a university hospital, where were the RESIDENTS????

Usually hospitals with a residency training program have several residents + 1 or 2 attendings on call each night. Moreover, in my home school at least, residents on OB call will page the attending with a special code specifically for a crash C-section--precisely to prevent this sort of thing from happening! In addition, senior residents take OB call, not inexperienced CA-1s. Yet another safeguard in place. On top of that, if the patient is truly crashing, the resident will go ahead and start the case even if the attending hasn't arrived.

Perhaps at that time Northwestern still had "private" attending anesthesiologists who didn't deal with residents, but that seems a little unusual. Even if this was a "private" patient, the remaining medical staff could have paged the OB anesthesia RESIDENT as a last resort.

I guess, then, I'll have to revise my previous statement: although the attending clearly should shoulder the bulk of the blame, the university must also share responsibility for the error. Additional (common-sense) safeguards should have already been in place to prevent this sort of situation (as noted above).
 

Thoinga Thoing

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More food for thought--if that same attending had been in the middle of starting another case (though he was busy canoodling with a nurse), say a GSW trauma, who would they have paged then? There had to have been someone else available, most likely RESIDENTS. And that was what SHOULD have been done in this case if it was truly such an emergency.
 

powermd

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Originally posted by doc_strange2001
This guy got nailed thinking with the wrong head. Poor kid is disabled forever because of it. Its alot of money but its hard to defend the doc in this situation

Not sure what you may be implying, but just to be clear, I agree the doctor is completely defenseless. It's the amount of the award, and the fact that it is basically wasted money that I disagree with. No amount of money is going to make up for the injury sustained, and all anesthesiologists will pay for this one unprofessional doctor's mistakes when insurance rates are nudged upward. I doubt fear of litigation will appreciably improve quality of care. The only good that comes from this judgment is that the family will receive support for their disabled child. However, there is a huge loss in opportunity to do good with the money awarded to the family. Instead of going to help other victims of medical errors, or simply other people who can't afford needed health care, it will go to buying Hummers for the parents and all their relatives. God bless America!
 

doc_strange2001

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Yeah all of us will pay for this one. Im sure there are cases in which the doc doesnt deserve to be sued but this is not one of them. The amount is just to insure that the guy will never practice again.
 

minime

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I wonder where the other 34M will come from, since most only carry 1M in malpractice? In all likelihood, the family will only get the 1M and the doc will never practice again. Any other thoughts?
 

Galaxian

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That doctor is f*@&ed...He'll never dole out the gas again, and shouldn't, but I do think the award is too much. Just goes to show you--don't dip your pen in the company ink! Especially when there's a crash C-Section going on...
 

Tenesma

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i hate to point this out ---- but OB/GYNS know how to do an emergency c-section without an anesthesiologist around... they just provide local one layer at a time (and yes, it is uncomfortable for the patient) - that is how it used to be done a few decades ago...

it still doesn't excuse the anesthesiologist - he should pay every penny... and lose his license... but the system is sooo bad, i bet he gets to keep his license.
 

supahfresh

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Apparently this happened almost 6 years ago. He is no longer on faculty.
 

dukeybootie

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Took me five minutes to find Dr. Lojeski's current practice group, location, phone number, and what insurance policies he accepts (he does not take Iowa Health Solutions Medicaid, Iowa Health Solutions Hawk-I, or Tricare). So as predicted by Tenesma, yes he is still practicing. And yes, I should get a life if this is what I am doing on a Saturday night.

Some other food for thought: how much of the $35M went to the lawyers?
 

Tenesma

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oh ---- if you ask juddson, i am sure he/she will tell you that the lawyers did it for minimal cost as they are only there to provide justice for that victim... so i am guessing about 30,000 --- but i could be WAY off!!! ;)
 

Apollyon

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Originally posted by dukeybootie
Some other food for thought: how much of the $35M went to the lawyers?

If it's contingency like in other states, $11.6 million.

One thing that caught my eye - the "court-appointed guardian" appears to be the father (unless the unlikely occurrence is that he and the mother share the same, uncommon name). Is it the regular procedure to appoint the legal guardian as, well, the legal guardian?
 

Tenesma

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you know that contingency fee makes sense.... let's say the lawyers charge $ 300/hour (probably on the generous side), then that would equate 39,000 hours of work and they worked 60 hours per week only on this ONE case (with 2 weeks of vacation): then you are talking about 4 lawyers working non-stop on ONE case only for 3.5 years.... hmmm... somehow i think they hit a jackpot at a poor family's expense...
 

Lefty

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Look, I agree that the anesthesiologist was doing something he shouldn't have been doing--screwing around doing personal things while on the clock. However, what if he had been in another case? Or had some other emergency come up? What if he was in the middle of another emergency C-section? Where is the back up for that? It scares me that he can be sued for $35 million so easily. I think that $35 is a grossly absurd amount and is a huge blow to malpractice rates, not to mention setting a precedence for the rest of litigating loving America.

I guess the best we can do is avoid situations similar to that at all costs.
 

Thoinga Thoing

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Hooray, somebody finally (re)mentioned the lack of a contingency plan--something that I had referred to earlier.... And yes, I agree, $35million is an absurd amount!!!
 

apma77

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cost of providing anesthesia in a crash c section: $1200
cost of fu**ing a nurse= 35 million

i love america:clap:
 

juddson

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hmm.

The award:

It's high. But keep in mind that this is not a jury award. This is a negotiated settlement between the doctor's insurance carrier and the patient's family. It is based on what the two sides think the outcome from the jury might have been - it is NOT an indication of what the jury awarded (because they were not permitted to finish deliberation). I think the average jury award for a brain-damaged child is normally in the high $3 millions - which few would suggest is too high in this instance. Ordinarily, you would "expect" the jury to come back with an award in this neighborhood. But this is a special case - in that rather than being in the operating room, the MDA was having sex in the on-call room. Both the plaintiffs and defendants KNEW this was going to be extraordinarily prejudicial in the eyes of a jury. That's NO DOUBT why the settlement was so high, and why it wasn't settled but hours before the jury was going to come in with a verdict. Had the jury decided the case, they may very well have decided to award only $3 million. In that case, the doctor has no one to blaim for the settlement but himself (and his wee-wee ;) ;) )

The Defendants:

The defendants in this case were most certainly the MDA, the OB, the hospital and probably a few others. The hospital's liability is no doubt premised on the theories set forth above in this thread -lack of back-up, etc. Might explain some of the award.

The Guardian:

The guardian's name was not mentioned in the article. But it would not have been the child's father. The suit was brought by the mother and father, in the name of the child, against the doctor. Normally, a court will appoint an independant "guardian" to represent the legal interests of the child (because even courts know that thier parents don't always have those interests in mind). That's why the judge ordered the settlement on approval of the guardian (ie, on approval of the child).

The Fee:

The standard contingency fee for a tort action is 1/3 the settlement + expenses. Patients almost never have any money (let alone, enough money) to prosecute any sort of meaningful lawsuit in th United State. If lawyers refused to take lawsuits on contingency, the courthouse doors would close to all but the wealthiest of injured patients. This case went the distance, which puts it at least three years between filing and trial. As mentioned by somebody above, it seems to have taken six years. Assuming that's true, I've not a shred of doubt in my mind that the lawyer representing the plaintiff has well over $100,000 into the suit from filing to trial (and probably a few multiples of that). These would include the actual out-of-pocket expenses of bringing a suit like this (fees paid to consultants, costs of discovery, etc.) as well as the cost of maintaining a staff to bring the suit (you don't think this is just one guy and his secretary, do you) with no guarantee of a payday.

Most malpractice suits this attorney would bring (assuming he's a run-of-the-mill attorney) are going to end in dismissal or verdict for the doctor. Accordingly, every dollar he fronts to finance something like this is at risk of total loss - not to mention the three to six years of uncompensated labor.

The contingency fee has two purposes: (1) to permit indigent plaintiffs to bring suits for which they could not ordinarily afford, and (2) to compensate the lawyer for (a) his labor and (b) the risk of loss of his investment in the suit.

Let's assume for the moment that this was not a particulary "prejudicial" case. Instead of shagging the nurse in the on-call room, let's pretend the MDA simply administered the wrong pharmaceutical. Assuming he was negligent, we would expect an award of somewhere in the ballpark of $3 million. Assuming our attorney put up $150,000 in expenses, three years of labor and the costs of his staff, is his $1,000,000 share of the award excessive? Think about it: risk $150,000 + payroll + labor to get $1,000,000. Couple that to the statistic that doctors almost always win malpractice cases and the typical award isn't so insane.

But this is a $35 Million award!!!! Perhaps the agreement between the patient and the lawyer should have said something like "33% for the first $5 million, and then 0% for every dollar after that." What interest, then, does the lawyer have to reject awards above $5 million even when he thinks a jury will award $35 million? The contingency fee is designed to allign the interests of the lawyer with that of his client - that is, to get his client the most compensation possible (for which the lawyer also participates to the tune of 1/3).

The point is, the contigency fee arrangement is a sound one. Occassionaly, however, the defendant's actions are so aggregious that the suit results in a windfall for the plaintiff AND the attorney. But, as I said, this is a particularly interesting case.

To be honest, I'm in favor of having ALL punative damage awards paid to the state. After all, we don't let private citizens punish people. Why would we let them keep punative damage awards? Of course, if the plaintiff cannot keep the award, what incentive is there to seek one in the first place?

And to Tenesma's stupid comments: The vast majority of Lawyers are just like the vast majority of doctors. They want to get paid as much as they can for the work that they do. Which is to say, there are JUST as many lawyers who consider a hard won "justice done" sufficient compensation at the end of the day as their are doctors who consider a healthy patient payment enough - which is to say virtually none at all.

Get off your high horse.

Judd
 

CambieMD

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The amount of the settlement may seem high. An injured child draws a huge amount of sympathy. I bet you a jury would have given the family even more.
The point to take away from this is that professional behavior is imperative. After the lawyer learned that the doctor was "entertaining" a female the case became a slam-dunk.(of course on pun intended). The child may have sustained brain damage prior to the anesthesiologist being called. That may be the case but the other facts over shadowed that.
This guy is not the first person to try that in a call room. We all can learn from this. Things like this happen in medicine all of the time. Usually no one gets hurt.
I am not in anesthesia but I agree that the coverage was obviously not sufficient.
Does anyone know what the percentages of blame were. I would think the doctor got the most then the hospital and lastly the ob.


CambieMD
 

Tenesma

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juddson

i was being sarcastic
 

apma77

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And the moral of the story is,,,,,,,,,,,,,,,,"aint no snatch worth 35 mil or a brain damaged child"

case closed+pissed+
 

scoobydum

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Hey Pinky,

If you don't mind my asking, I remember you used to post about UIC vs. Rush anesthesia programs. Where did u eventually end up signing-- UIC or Rush??
 
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