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Dauphin County Jury Sides With Parents of 5-Year-Old With Brain Injury

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Below is a verdict summary on a recent verdict in Dauphin County, Pennsylvania from today's Pennsylvania Law Weekly. What are your thoughts and opinions on the verdicts with regards to patient safety and compensating the injured child?

Graham v. Shapiro

A Dauphin County jury has awarded a $1.2 million verdict to the parents of a 5-year-old who had an anoxic brain injury and stopped breathing after he had a tonsillectomy.

2012-06-26 10:00:00 AM

Date of Verdict:

June 19.

Court and Case No.:

C.P. Dauphin County No. 2009-CV-14003-MM.

Judge:

Scott Evans.

Type of Action:

Medical malpractice.

Injuries:

Anoxic brain injury.

Plaintiffs Counsel:

Terry S. Hyman, Schmidt Kramer, Harrisburg.

Plaintiffs Experts:

Dr. Anna H. Messner, liability; Lucille Packer, Pediatric Otolaryngology, Palo Alto, Calif.; Terry P. Leslie, vocations and earning capacity, Lancaster; Dr. Hilary B. Berlin, pediatric psychiatry, Great Neck, N.Y.

Defense Counsel:

Andrew H. Foulkrod, Darlene K. King, Foulkrod Ellis, Camp Hill, Pa.

Defense Experts:

James C. Reilly, Pediatric Otolaryngology, Wilmington, Del.

Comment:

A Dauphin County jury has awarded a $1.2 million verdict to the parents of a 5-year-old who had an anoxic brain injury and stopped breathing after he had a tonsillectomy.

The entire verdict came against Dr. Andrew M. Shapiro, the doctor who plaintiffs Reginald Graham and Tykeisha Metz alleged chose to have the boy monitored at a pediatric ward. The plaintiffs argued Shapiro failed to tell nurses caring for the baby about, and how to care for, the boy's enhanced risk for respiratory failure.

The jury came back on June 19 and awarded Reginald Graham and Tykeisha Mets $500,000 in non-economic damages and $686,170 in loss of future earning capacity, according to the plaintiffs counsel.

According to the statement, the baby's mother brought him to Shapiro because she was "'afraid that he might stop breathing during his sleep,'" the plaintiffs' pretrial statement said. Shapiro performed a sleep study and observed the baby's Apnea Hypopnea Index to be 43 — four times higher than what's considered severe. A tonsillectomy and adenoidectomy were performed.

According to the plaintiffs, the baby's sleep study results put him at an increased risk for post-operative respiratory complications. Despite this, they argued in the statement, Shapiro ordered the pediatric nurses at the Harrisburg Hospital general pediatric ward to observe the boy as they would any other patients — about once every four hours.

The pretrial statement said that one in four children who have an AHI in the 40s and oxygen desaturation below 80 have some type of respiratory problem. The younger the child, the greater the risk of a respiratory problem, the statement said.

According to the statement, Shapiro took off the child's pulse oximeter, the finger-mounted device used to measure blood oxygen, and ordered a heart and respiratory rate monitor. The child was 11 months old at the time.

The plaintiffs pled that the baby was last seen at 4 a.m. There was no record of his oxygen saturation for the next hour and 45 minutes. He stopped breathing a 6:40 a.m., and his brain was without oxygen long enough to cause demonstrable injury on an MRI.

"Immediately prior to his surgery, [the child] was a normal child, who could say mama, eat finger foods, and was just on the verge of walking," the statement said. "After his code, [he] was like a newborn. He could not lift his head or sit up. He could not talk. He could not move."

In his pretrial statement, Shapiro argued that he recognized the child's pre-operative sleep study showed he was driven to breath by decreased blood oxygen saturation, which he said was typical in patients with obstructive sleep apnea.

He argued the American Academy of Otolaryngology dictates that admission to the intensive care unit is not the standard of care. In the statement, he said nurses did not observe signs of respiratory distress. No alarms sounded until the child arrested, the statement said.

He said the baby likely arrested as a result of hypoglycemia and/or an acute aspiration, which he argued would not have been identified by blood oxygen saturation.

— Ben Present, of the Law Weekly