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Two docs blame each other, jury awards $7M

Peter Vieth//July 26, 2017

Two docs blame each other, jury awards $7M

Peter Vieth//July 26, 2017

Doctor-Stethoscope-Pocket-MAINAfter hearing two doctors blame each other for a patient’s death, a Fairfax County jury delivered a $7 million verdict for the patient’s family July 19.

The jury tacked on interest from the 2013 date of surgery, making the verdict worth about $8.7 million if it were not for Virginia’s medical malpractice cap, the plaintiff ’s lawyers said.

The applicable limit on recovery is $2.05 million under the statute that provides for incremental increases in the cap through 2031.

The trial featured the unusual spectacle of two medical specialists directly accusing each other of malpractice. “It was a case where defendants were pointing the finger at each other,” one plaintiff ’s lawyer said.

Aneurysm surgery

Lawyers for the patient’s estate described the case.

The patient was Karen Ebersole, a 55-year-old mother of two adult children with a GED who had worked her way to accounts manager at Fairfax Radiological Consultants PC, one of the defendants in her case.

In 2013, she was discovered to have an intact cerebral aneurysm and was offered two treatment options. One involved open brain surgery and the other, less invasive, procedure involved the placement of metal coils in her vessels that would cause blood to clot and block off the aneurysm.

She selected the second, endovascular procedure because it promised to have her home the next day and back at work in a week, said Les S. Bowers of Roanoke, one of the plaintiff ’s team.

In the procedure she chose, the coils are placed in the blood vessels with the help of  a  balloon  that  is  temporarily  inflated inside the vessel to provide space for insertion of a coil.

During surgery, the balloon was manipulated by an interventional neuro-radiologist, Richard S. Pergolizzi, MD, while anesthesiologist Dung “Joseph” Nguyen managed the patient’s overall condition.

The balloon allegedly overinflated and led to rupture of the artery and to Ebersole’s death three days later from a brain bleed.

Blame game

Pergolizzi maintained the patient was “light on anesthesia” and had “bucked and jerked” during the procedure, lifting her head off the table. The sudden movement caused the balloon malfunction, the radiologist said.

Based on Pergolizzi’s account, blaming  Nguyen  for  insufficient  anesthesia, the  plaintiff ’s  lawyers  filed  suit  in  Fairfax County against only Nguyen and his group.

Keeping their options open, however, the plaintiff attorneys sued Pergolizzi in faraway Lee County in 2015 and did not request service.

Bowers said Pergolizzi, apparently unaware he was a potential defendant, told “an incredible story” at his deposition, describing the patient lifting her head six to eight inches off the operating table.

Others present said they never saw the patient lift her head or move about on the table. Nguyen, the anesthesiologist, was adamant that her head stayed in place.

A photo taken by a medical risk manager reportedly showed the patient with her head securely taped down on the table.

The suit against Pergolizzi was transferred  to  Fairfax  and  he  was added as a defendant in the wrongful death action.

As the trial played out, the specialist defendants, their experts and their lawyers turned on each other, according to the plaintiff ’s team.

Nguyen claimed Pergolizzi overinflated the balloon causing the vessel to rupture. The radiologist reportedly was using this type of balloon for the first time. If the patient moved, it was because of that trauma, the anesthesiologist contended.

“Not until trial did Dr. Nguyen’s full story come out,” Bowers said.

When the evidence was finished, it was clear that Nguyen was the more credible physician, Bowers said.

Jury asked to fix blame

The jury reportedly was asked to pick which doctor was responsible.

Tony Russell of Roanoke, lead counsel for the plaintiff ’s team, told jurors they should do justice for the patient’s beneficiaries – and also do justice for an unnamed third person, Bowers said.

Russell did not suggest by name which doctor should take the hit, but Bowers said the target was clear by that point.

“It really was an either-or situation,” he said.

Russell reportedly asked the jury for $3 million.

The jury was out about six hours before returning a verdict that awarded $3.37 million to each of two beneficiaries. With medical and funeral expenses, the verdict totaled $7,000,779.70.

Circuit Judge Richard E. Gardiner presided.

Post-trial motions are likely to include a challenge to the constitutionality of the medical malpractice cap, Bowers said.

If the verdict was a victory for the beneficiaries, it also was a win for Nguyen who avoided all liaibility.

“Dr. Nguyen doesn’t take any pleasure in this verdict. A woman died. But he does feel vindicated,” said Byron J. Mitchell of Fredericksburg. Mitchell, and Lynne C. Kemp of his firm, defended Dr. Nguyen and his group.

Mitchell said Nguyen was blamed by Pergolizzi from the beginning.

“The gauntlet was thrown down right at the door of the operating room,” Mitchell said.

Speaking about defending a case against a co-defendant at trial, Mitchell said, “I’ve never been in that situation before.”

“At the end of the day, the truth prevailed,” he added.

Besides Russell and Bowers, the patient’s estate was represented by Donald S. Culkin of Leesburg and S.D. Roberts Moore of Roanoke.

Stephen  L.  Altman  of  Fairfax  represented Pergolizzi and his practice group. Altman did not respond to a request for comment as of press time.

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