This from Massachusetts Lawyers Weekly: http://www.masslawyersweekly.com/index.cfm/archive/view/id/443928#
Surgeon switch results in $4.3 million verdict
Published: June 27, 2008
A Suffolk Superior Court jury has returned a $4.3 million medical malpractice verdict against two Brigham & Women’s Hospital surgeons.This case has roused the interest of a powerful Chicago law firm for medical malfeasance, this is far from over.
The case revolves around an ablation procedure. The plaintiff maintained that, although she had contracted with the chief of the arrhythmia service to do the operation, the procedure was instead performed by a non-board- certified surgeon.
The plaintiff, who now requires use of a pacemaker, prevailed on counts of negligence, lack of conformed consent, and breach of contract, according to an account provided by her attorney, Annette Gonthier-Kiely of Salem.
The full Verdict & Settlement Report submitted by Gonthier-Kiely follows:
The plaintiff contracted with the defendant, chief of the arrhythmia service at Brigham & Women’s Hospital, to perform her AV Nodal Re-entrant Tachycardia ablation. The chief was board-certified in internal medicine, cardiology and electrophysiology and was highly skilled and experienced in performing radiofrequency catheter ablations of AVNRT, a non-life threatening arrhythmia.
The doctor explained that, with a procedure called “mapping”, he could “precisely” target the abnormal cells responsible for the arrhythmia and “selectively” kill only those cells through the use of radiofrequency — high-frequency radio waves that burn heart tissue.
The plaintiff had lived with her condition for more than 20 years and had been medicated successfully with beta blockers for seven years. Her desire to discontinue the medications so that she could have a baby, the virtually zero risk of “needing a pacemaker” as explained by the doctor, as well as the doctor’s agreement to perform the ablation himself compelled the woman to agree to undergo this elective procedure.
The literature clearly establishes that there is a lower rate of complications and a higher rate of success based on the experience and skill of the operator.
The EP study and ablation procedure was scheduled for May 30, 2002. Sometime during the week of May 30, the doctor booked another appointment in conflict with the plaintiff’s scheduled catheter ablation. The doctor failed to notify the plaintiff so that she could reschedule and failed to show up to perform the catheter ablation; rather, on May 30, at about the time the procedure was scheduled to begin, he asked an associate whom the plaintiff had never met to step in and perform the procedure. The associate, who had been educated in Japan and had just completed her electrophysiology fellowship, had no board certifications. The doctor assigned the associate to the surgery without the plaintiff’s knowledge or consent.
The evidence suggested that the plaintiff was already in the procedure room, ready to go and sedated at the time the associate stepped in, and that the associate deviated from the applicable standard of care by failing to stop “burning” in response to clear signs of impending heart block. Had the associate stopped burning in the face of clear signs of injury to the normal conduction, complete and permanent heart block would have been averted.
Of note is that the associate called the doctor after the EP study and reported that the AVNRT diagnosis was confirmed but that there also appeared to be another condition called Inappropriate Sinus Tachycardia. The doctor knew that the plaintiff would require treatment with beta blockers for the second condition. Although he knew that the plaintiff consented to the invasive heart procedure so that she would no longer have to take beta blockers, he failed to direct the associate to stop the procedure, allow the sedation to wear off and address the new development with the plaintiff.
Two weeks later, in addition to suffering complete heart block and undergoing implantation of a permanent pacemaker, the plaintiff was prescribed beta blockers by the doctor for her Inappropriate Sinus Tachycardia; she will require the beta blockers for the rest of her life. The pacemaker, which must work continuously to deliver the normal electrical impulse silenced by the negligently performed ablation, also requires regular monitoring and interrogation.
The plaintiff has already been worked up for “pacemaker-induced cardiomyopathy” by echocardiograms, which have demonstrated an abnormal ejection fraction since the incident.
Defendants contended that the Plaintiff consented to the change of physician and that complete heart block was a risk of the procedure which occurred without negligence on the part of the substitute electrophysiologist.
The jury found against both defendants on negligence and lack of informed consent and found against one of the defendants on breach of contract.
Type of action: Medical Malpractice
Injuries alleged: Complete heart block requiring permanent pacemaker in a 39-year-old wife and mother
Case name: Denyse Richter et al. v. Laurence Epstein, M.D. and Kyoko Soejima, M.D.
Court/case no. Suffolk Superior Court, No. 04-04653A, consolidated with No. 06-2226H
Tried before judge or jury: Jury
Name of judge: Regina L. Quinlan
Amount of verdict: $4,366,000
Date: June 25, 2008
Attorney: Annette Gonthier-Kiely, Annette Gonthier-Kiely & Associates, Salem (for the plaintiff)