In April, 2007, Patricia Kelly was a 62 year old operating room nurse who had been on disability for several years due to end-stage renal disease. By that time, she had had a complicated medical history, including congestive heart failure, an umbilical hernia, and a history of intestinal obstruction with prior surgeries. She was in dialysis three days a week and, although she was hopeful of getting a kidney transplant, as her health grew worse she was becoming less of a viable candidate.
On April 23, 2007, Patricia underwent a hernia repair procedure. The surgeon, Dr. Lucy Brown, was a professional colleague and friend of the patient, but she inadvertently cut Patricia's small bowel in two places. What occurred next is disputed, but it is likely that Dr. Brown placed a suture on each laceration and closed her patient back up. In her post-operative note, however, she wrote that there had been no complications.
Dr. Brown did not alert any hospital staff as to the mishap that occurred on April 23rd. Over the next several days, Patricia's condition grew worse and it is believed that her bowel contents were leaking into her abdominal cavity. She experienced a variety of abdominal symptoms and there also was a buildup of blood in her abdominal cavity. Except for admin-istering pain killers and antibiotics, no steps were taken to diagnose Patricia's deteriorating condition.
On April 30th, after Patricia's abdominal symptoms had grown worse, Dr. Brown performed exploratory surgery. She failed to find the cause of the bleeding but, during the surgery, she again lacerated Patricia's bowel in two places. Although the doctor removed the affected bowel segment, Patricia's condition continued to deteriorate. She developed a fistula, an opening in the abdomen from which green bile and other bowel contents leaked. Alarmed by these developments, the patient's family then had her transferred to Albert Einstein Medical Center where they hoped other surgeons would be able to help Patricia recover.
After the transfer, Patricia spent the rest of her life going back and forth between Willowcrest Rehabilitation Center and Albert Einstein Medical Center, undergoing multiple procedures and attempting to recover from those procedures. Despite these efforts, her vital organs deteriorated and she died of septic shock.
Deeply troubled by what had taken place, the family contacted attorney Mike Bomstein and retained their services. Mindful of the need to distinguish between inevitable medical mistakes and malpractice, Mike hired a medical expert, a surgeon with teaching responsibilities at a major medical center and substantial experience in abdominal surgery. Dr. David Barnes reviewed thousands and thousands of pages of medical records and concluded that Dr. Brown was negligent in failing to repair the damage done during the hernia surgery. He also believed that she later had covered up her negligence by furnishing incorrect and incomplete information in hospital records. As a result, an opportunity to intervene early on was missed and Patricia's condition became impossible to fix. At that point the Patricia's family decided to sue..
Claims were made both for compensatory and punitive damages. The suit was hard fought for more than two years. In essence, Dr. Brown's attorneys contended that her patient's injuries were the result of foreseeable complications, worsened by Patricia's already frail condition. Mike argued that the evidence was clear that Dr. Brown failed to repair the damage she did in the initial procedure and that her failure to alert other medical providers kept them from taking steps that could have saved her life.
The challenge for Mike in pressing forward was balancing the goal of obtaining a maximum recovery for Patricia's family against the very real possibility that a jury might conclude either that the doctor erred, but was not legally negligent or that Patricia's health was so poor that she might not have survived in any event. Over many months of depositions and intense negotiations an agreement was reached to pay Patricia's estate and survivors $850,000, which was 85% of the maximum possible recovery. As a result, Patricia's surviving daughter will be able to pay off the mortgage on the family home and receive a substantial monthly annuity for years to come.