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Case of the Month April 2010

Family Settles Med-Mal Suit for $17.3M After Minor's Brain Damage

S.B. v. Go

Medical Malpractice-Procedures & Treatment - Laparoscopy/Laparotomy; Other
Medical Malpractice-Physicians & Health Professionals - General Surgeon
Insurance - Other

Specific Liability:
Using unfamiliar surgical instrument without prior training caused minor patient's injuries during elective laparoscopic splenectomy

General Injury:
Internal injuries, blood loss, permanent brain damage, medical expenses

Jurisdiction:
State: Wisconsin
Court: Dane County.

Related Court Documents:
None.

Case Name:
S.B., Margaret Bomkamp and Douglas Bomkamp v. Leonard Go, M.D.; Physicians Insurance Co. of Wisconsin; Injured Patients & Families Compensation Fund

Docket/File Number:
2007CV4013

Settlement:
Plaintiffs, $17,300,000.00

Settlement Date:
April 15, 2009

Judge:
Maryann Sumi

Attorneys:
Plaintiffs: Daniel A. Rottier and James M. Fergal, Habush, Habush & Rottier, Madison, Wis.

Defendants (Go and Physicians Insurance): Barrett Corneille, Corneille Law Group, Madison, Wis.

Defendant (Injured Patients & Families Compensation Fund): David E. McFarlane and Kate Harrell, Bell, Gierhart & Moore, Madison, Wis.

Trial Type:
Settlement

Experts:
Plaintiffs: Karl A. Egge, PhD, economist, Macalister College, St. Paul, Minn.; Robert H. Taylor, MA, LPC, CRC, CDMS, CLCP, life care planner, Vocational Diagnostics Inc., Phoenix, Ariz.

Defendants: None mentioned

Breakdown of Settlement:
$13,298,000.00 to plaintiffs for S.B.'s future care needs
$1,602,000.00 to plaintiffs for S.B.'s future loss of earning capacity
$1,250,000.00 to plaintiffs for past medical expenses to June 8, 2009
$750,000.00 to plaintiffs for S.B.'s past and future pain, suffering and disability, and for the Bomkamps' past and future loss of S.B.'s society and companionship
$400,000.00 to plaintiffs for home modifications

Summary of Facts:
According to plaintiffs' counsel:

Minor S.B. suffered from a congenital problem with her spleen. The 6-year-old underwent an elective laparoscopic splenectomy in June 2007.

Leonard Go, MD of Dean Health Systems Inc. performed the surgery. Go used a morcellator in the procedure. The surgical instrument is a circulating blade. Go did not receive training on the device prior to S.B.'s surgery and had no experience with the instrument.

During the procedure, the general surgeon transected S.B.'s infra-renal aorta, partially cut through the patient's inferior vena cava (a large vein that carries blood from the lower extremities, abdomen and pelvis to the heart) and injured her small bowel.

The injuries caused S.B. to lose about 1,900 milliliters of blood, almost the total amount in her body. She suffered a cardiac arrest and anoxic brain injury during the procedure.

S.B. has permanent brain damage and is confined to a wheelchair. She cannot feed herself, roll over or speak. The child communicates by blinking her eyes. In addition to her physical disabilities, S.B. suffers from significant cognitive impairment.

The minor and her parents, Margaret and Douglas Bomkamp, sued Go and his insurer, Physicians Insurance Co. of Wisconsin, in the Dane County Circuit Court. The plaintiffs added Injured Patients & Families Compensation Fund as a defendant.

The Bomkamp family blamed Go's medical negligence for S.B.'s injuries. They asserted that if the surgery had been a success, S.B. would have had no residual problems.

They sought compensation for S.B.'s damages, medical expenses and lost earning, and the Bomkamps' loss of their daughter's society, plus damages for alterations to their home.

Go had a $1 million policy limit with Physicians Insurance. Injured Patients & Families Compensation Fund had insurance coverage starting at $1 million with no limit for compensatory damages.

After the plaintiffs disclosed their liability experts, all three defendants admitted Go's liability. Trial was scheduled for June 2009.

The parties announced a $17.3 million settlement in mid-April 2009. According to the agreement, approved by Judge Maryann Sumi, the plaintiffs received compensation for the entirety of their claimed damages.

The settlement included $1.25 million for past medical expenses to June 8, 2009; $750,000 for S.B.'s past and future pain, suffering and disability, and for the Bomkamps' past and future loss of their daughter's society and companionship; $1.6 million for S.B.'s future loss of earning capacity; and $400,000 for the home modifications.

The remaining settlement award, approximately $13.3 million, was slated for S.B.'s future care needs. More than $8.2 million of that amount was set aside in a future medical fund under Wis. Stat. 655.015 and the Wis. Admin. Code 17.26(4)(f).

According to the settlement, the plaintiffs sought to challenge the constitutionality and application of the statutes. The plaintiffs' counsel indicated that if the Bomkamp family is successful, the entire $13.3 million will be paid to S.B. forthwith.

Court: Circuit Court of Wisconsin, Fifth Judicial District, Dane County.

Westlaw Citation:
2009 WL 5220712

West's Jury Verdicts - Wisconsin Reports Citation:
West’s J.V. Wis. Rep., Vol. 5, Iss. 8, p. 8 (2009)