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Case of the Month July 2009
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Case of the Month July 2009

Jury Awards Patient $10M for Post-procedure Brain Damage

Schultz v. Continental Cas. Co.

Type of Case:
Medical Malpractice-Procedures & Treatment - Brain
Medical Malpractice-Procedures & Treatment - Medication
Medical Malpractice-Procedures & Treatment - Other
Medical Malpractice-Physicians & Health Professionals - Resident/Intern/Fellow
Medical Malpractice-Physicians & Health Professionals - Other Physicians & Health Professionals
Medical Malpractice-Facility - Hospital

Specific Liability:
Injecting patient's L2-L3 intervertebral space with improper material caused neurological injuries

General Injury:
Brain damage, bilateral hip fractures, compression fractures in spine, coma, medical expenses

Jurisdiction:
State: Wisconsin
Court: Circuit Court of Wisconsin, First Judicial District, Milwaukee County.

Related Court Documents:
Plaintiff's second amended complaint: 2008 WL 5707782
Defendants Case and Continental's answer: 2007 WL 6098223
Defendant Wisconsin Injured Patients & Families Compensation Fund's third-party complaint: 2007 WL 6098222
Plaintiff's pretrial memorandum: 2008 WL 5707769
Defendants Case and Continental's pretrial memorandum: 2008 WL 5707770
Defendant Wisconsin Injured Patients & Families Compensation Fund's pretrial memorandum: 2008 WL 5707767
Verdict form: 2008 WL 5707312
Judgment: 2008 WL 57193292008 WL 5719329

Case Name:
Larry A. Schultz, by his guardians, Candace Sullivan and the U.S. Bank Trust Department, plaintiff; and Michael O. Leavitt, secretary of the U.S. Department of Health & Human Services, involuntary plaintiff v. Continental Casualty Co. and Graham R. Case, M.D., defendants; and Wisconsin Injured Patients & Families Compensation Fund, defendant and third-party plaintiff v. Aurora Health Care Metro Inc. d/b/a St. Luke's Medical Center, third-party defendant

Docket/File Number:
07CV296

Verdict:
Plaintiff, $10,084,981.88

Verdict Date:
June 5, 2008

Judge:
David A. Hansher

Attorneys:
Plaintiff: Daniel A. Rottier, James M. Fergal and Linda V. Meagher, Habush Habush & Rottier, Waukesha, Wis.
Defendants (Case and Continental): Mary K. Wolverton, Peterson, Johnson & Murray, Milwaukee, Wis.
Defendant (Continental): Michael J. Cohen and Pamela J. Tillman, Meissner Tierney Fisher & Nichols, Milwaukee, Wis. Defendant (Wisconsin Injured Patients & Families Compensation Fund): David E. McFarlane, Bell, Gierhart & Moore, Madison, Wis. Third-party defendant: None mentioned

Trial Type:
Jury

Experts:
Plaintiff: Chad W. Brecher, MD, interventional radiologist, Crozer-Chester Medical Center, Upland, Pa.; Karl A. Egge, PhD, economist, Macalester College, St. Paul, Minn.; Christopher J. Evanich, MD, orthopedic surgeon, St. Luke's Medical Center, Milwaukee, Wis.; Nathan D. Glassman, PhD, psychologist, Glassman & Stanik, Milwaukee, Wis.; Scott Hardin, MD, physical rehabilitation, St. Luke's Medical Center, Milwaukee, Wis.; Bhupendra O. Khatri, MD, neurologist, St. Luke's Medical Center, Milwaukee, Wis.; Patricia C. Stanik, PhD, neuropsychologist, Glassman & Stanik, Milwaukee, Wis.; Robert H. Taylor, MS, LPC, CRC, CDMS, CLCP, life care planner, Vocational Diagnostics Inc., Phoenix, Ariz.; Timothy L. Vollmer, MD, neurologist, Barrow Neurological Institute, Phoenix, Ariz.
Defendants (Case and Continental): James Youker, MD, radiologist, Milwaukee, Wis. Defendant (Wisconsin Injured Patients & Families Compensation Fund): Ann Lovegrove, RN, life care planner, Madison, Wis.; John Porter, MD, neurologist, Winston Salem, N.C.; Robert L. Vogelzang, MD, radiologist, Northwestern University Hospital, Chicago, Ill. Third-party defendant: None mentioned
Unspecified: Joseph M. Cunningham, ESA, PhD, neuropsychologist, St. Luke's Medical Center, Milwaukee, Wis.; Cully O. White, DO, neurologist, Midwest Neurological Associates, Milwaukee, Wis.

Breakdown of Award:
$5,000,000.00 to plaintiff for past and future pain and suffering
$584,981.88 to plaintiff for past medical expenses
$4,500,000.00 to plaintiff for future medical expenses
Jury found defendant St. Luke's 70 percent negligent.
Jury found defendant Case 10 percent negligent.
Jury found nonparty Zaleski 20 percent negligent.

Summary of Facts:
Larry Schultz was diagnosed with multiple sclerosis in 1989. Despite his condition, Schultz said he continued working as a nuclear pharmacist and lived an independent lifestyle. In October 2002 Schultz developed right-hand dexterity trouble and went on disability; he was able to maintain his independence.

Schultz said he traveled three hours to St. Luke's Medical Center in Milwaukee in February 2006 for an intrathecal Lioresal test dose and possible intrathecal Baclofen pump placement. According to the 53-year-old patient, the pump contained Baclofen, a muscle relaxant medication. The intrathecal space is the space surrounding a person's brain and spinal cord that contains cerebrospinal fluid.

Instead of injecting Baclofen, radiology technician Joseph Guidone reportedly handed resident Dr. Graham Case a bottle of ionic contrast dye Renografin-60 or Reno-60, which Case injected into the patient's intrathecal space, Schultz said. Dr. George Zaleski was the attending physician for the procedure. Warning labels on the dye indicated its toxicity and potentially lethal quality, the patient said. “Only non-ionic contrast media can be injected intrathecally,” he said.

Soon after receiving the injection, Schultz said he began suffering stiffness and body spasms. He lost consciousness and was intubated before he lapsed into a coma for about three weeks. When he woke, physicians discovered he had suffered bilateral hip fractures, requiring replacements, and acute compression fractures at T6, T7 and T8 during his spasms. Schultz said he spent 253 days at St. Luke's and left the hospital 100 percent dependent.

“He is now essentially a paraplegic in a wheelchair, who needs 24 hour care every day,” he said.

Seeking compensation for his brain damage and other injuries, Schultz's guardian ad litem and cousin filed a lawsuit on his behalf in the Milwaukee County Circuit Court against Case and his respective insurers: Continental Casualty Co. and Wisconsin Injured Patients & Families Compensation Fund.

The plaintiff argued Schultz's brain damage was solely caused by the injection and not his previous MS condition. Given the progression of his MS, the plaintiff said the patient would have continued living independently for another five years if the radiology procedure went according to plan.

According to the plaintiff, Continental made a $1 million advance payment on the hospital's behalf for Guidone's negligence.

Case and Continental answered together, denying the resident was negligent or a contributing factor to the patient's claimed injuries.

Case reportedly testified he was only taught by St. Luke's to check the expiration date before injecting contrast material into an intrathecal space; he did not need to read the label. The resident denying knowing the difference between ionic and nonionic materials, or whether Reno-60 was ionic or nonionic. Based on his training, Case said he believed it was appropriate to inject Reno-60 in a patient's intrathecal space.

Defendant Wisconsin Injured Patients & Families Compensation Fund filed a third-party complaint against St. Luke's, arguing the hospital did not properly train Case and Guidone. According to the Fund, the radiologist denied the hospital taught him the meaning of the word “intrathecal.” The hospital failed to keep Reno-60 in a place safe from potential intrathecal use, the Fund added.

The Fund sought compensation and indemnity from St. Luke's for Case's and Guidone's potential negligence.

The defendants also contested the cause of the plaintiff's claimed injuries, noting expert testimony that some of his problems resulted from the natural progression of his MS.

The case went before a jury in June 2008. Jurors found Case, Zaleski and St. Luke's liable for the plaintiff's injuries. The jury assigned the bulk of the fault, 70 percent, to the hospital for the negligence of employees other than Case.

The jury awarded Schultz $5 million for past and future pain and suffering; $4.5 million for future medical expenses; and about $585,000 for past medical expenses.

Judge David Hansher issued judgment the following month, saying Case and Continental were liable to Schultz for $1 million and Wisconsin Injured Patients & Families Compensation Fund owed $8,084,981.88. The judge dismissed the case in mid-August.


Court: Circuit Court of Wisconsin, First Judicial District, Milwaukee County.

Westlaw Citation:
2008 WL 5863377

West's Jury Verdicts - Wisconsin Reports Citation:
West’s J.V. Wis. Rep., Vol. 4, Iss. 11, p. 6 (2009)


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