Cheryl was a 47 year old social worker at the Curran Fromhold Correctional Facility and the mother of a 17 year old high school student. In May, 2004 she was admitted to the VA Medical Center in Philadelphia for gynecological surgery. The operation was successful and she was sent to recover in the hospital's surgical intensive care unit. Although she seemed to be comfortable and doing well, on May 29, 2004 Cheryl suffered cardiac arrest.
Almost ten minutes passed before hospital personnel administered a defibrillation shock to her, during which time she was hypotensive and anoxic. By the time that defibrillation started, Cheryl had already suffered significant and permanent cognitive loss and other impairment.
Cheryl remained at the VA hospital for several months after the incident. She was treated for prior heart-related problems as well as her cognitive deficits. She was then transferred to Moss Rehab for therapy and eventually discharged.
Cheryl was tested in late 2004 to determine her intellectual functioning. Doctors concluded that her general intelligence level had dropped from superior to average. In addition, her ability to form short-term memories was severely compromised and her personality was substantially altered.
She was allowed to return to her position at work, with several accommodations being made to assist her in a variety of daily tasks. By the summer of 2005, however, she was experiencing great difficulty doing her job and her performance had fallen off dramatically.
Because Cheryl's claim was against the federal government, she was required to proceed in her case in accordance with the Federal Tort Claims Act. Under the Act, suit may not be brought until the government has had notice of a claim and up to six months to decide whether or not to settle. Cheryl filed her claim in December, 2004 and, by agreement of counsel, settlement discussions extended beyond the six month deadline.
Hospital records in the case contained no explanation for the delay in treatment. The code sheet that would be expected to furnish the details was only partially completed and none of the notes in the patient's chart provided any insight into the cause of the delay. Plaintiff's liability expert, Dr. Lawrence Gessman of the Cooper Heart Institute in New Jersey, found that the delay was the cause of her injuries.
According to Mr. Bomstein, "Damages in the case were a potential problem in several respects. First, Cheryl was welcomed back to her former position with no pay cut. Even when she couldn't hold down her job, it wasn't clear that they would fire her, so an impairment of earning capacity claim was highly speculative. Second, the cognitive changes were not so obvious at first glance that you would necessarily conclude she had suffered a serious loss. In fact, there were many references in her chart to 'mild' brain injury."
The most substantial unknown in the case was Cheryl's life expectancy. Prior to her brain injury, Cheryl was already collecting a monthly disability benefit from the V.A. due to her poor heart condition. While negotiations were pending with V.A. counsel, she experienced congestive heart failure and was hospitalized for a month. Then, after Thanksgiving, she suffered cerebral hemorrhage and underwent brain surgery. Cheryl's family was told to expect the worst, and a few months later she died.
Despite Cheryl's death, the Firm was still able to resolve the case for $2 million. Her estate also benefited from a reduction in the statutory attorney's fee payable to the Pinnola & Bomstein Law Firm.
When Cheryl died, she left behind a nineteen-year old daughter. The settlement proceeds have enabled her to buy a home and enroll in school. She also will receive monthly annuity payments for many years to come.