Philadelphia Personal Injury Attorney Blog - Pomerantz Perlberger & Lewis LLP

Case Summary

The case was tried before the Honorable Frederica Massiah-Jackson and a twelve person jury. On Thursday, December 6, 2007 after deliberating for approximately 5 hours over two days, the twelve jurors unanimously found that Temple University Hospital had been negligent as a result of the actions of its nursing staff and had caused the death of Rufus Small. They awarded 1.7 million dollars. ($1,700,000) Norman Perlberger, Esquire was lead counsel, presenting plaintiff’s expert, cross examining all of the defendants and their expert, and arguing liability and damages to the jury. He was assisted at trial by his partner Eliot H. Lewis, Esquire. There was no offer of settlement by the defendants.

Basic Facts

On 9/23/2003, plaintiff’s decedent, Rufus Small, 77, a retired welder who did handy man work for his adult children and took daily care of his debilitated wife, made a visit to the Emergency Department of defendant Temple University Hospital with a complaint of tongue and throat swelling. He was diagnosed with angioedema. When his condition worsened he was intubated with a nasotracheal airway tube, admitted, and placed in intensive care. Mr. Small’s subsequent course was marked by agitation on 9/23 and 9/24 for which he was given IV sedation and at times placed in restraints. On the morning of 9/24, his chest examination revealed reduced breath sounds at the bases, a change from his initial exam when he was described as “clear bilaterally” and from 9/23, when he had reduced breath sounds only on the right. The angioedema that caused his hospitalization was noted to be improving on 9/24. Dr. Chatila considered removal of the tube that day, but this was changed to a plan to remove the tube on 9/25. Between 8 PM and 9 PM on 9/24, Mr. Small wrote two notes to his daughter Olivia that “hard to breathe.” Olivia gave this information to the on- duty nurse, who did attend to the patient after the first note. The second note came shortly before the family left. The nurse promised she would take care of Mr. Small.

There is no indication in the record that the doctors were told about either note. At about the same time, the nursing record shows weakness and confusion and that breath sounds were now decreased bilaterally throughout. He also now had bilateral rhonchi, indicative of lung secretions and a productive cough. No treatment was given to ease his difficulty breathing. Instead after 9 PM, an intern ordered restraints and more sedation. Although Albuterol was ordered, it was not given. His agitation continued into the early morning hours. At 2 AM on 9/25 he was again sedated. The resident and intern were informed of the agitation, but did not come see him.

At 2:40 AM it was noted that Mr. Small was using accessory muscles to breathe. His breath sounds were no longer audible. Only then did Dr. Agrama come to the bedside and order emergency measures to help Mr. Small breathe. Despite efforts to treat him, Mr. Small coded at 4:00 AM and was pronounced dead at 4:32 AM 9/25/2003. When the original tube was examined it showed mucous plugging with “concretized secretions” which would have taken hours to develop. This could have been avoided by regular suctioning, which was absent from the record.

When the decedent’s family returned to Temple University Hospital, after being informed of their father’s death, the same nurse who promised to take care of the breathing difficulties would not talk to them.

Trial

Trial occurred from Monday, November 26, 2007 through the verdict on Thursday December 6, 2007. Plaintiff called five live witnesses beginning with the resident defendant, Dr. Susan Agrama M.D. as of cross examination. Plaintiff also called the three adult children of the decedent, Emmanuel Small, Rosemary Small and Olivia Ayranci Small. After reading from the depositions of the decedent’s family physician, an ENT resident and a radiologist, plaintiff’s expert pulmonologist, Dr. William Fineman, testified there was not adequate recognition and communication about Rufus Small’s respiratory distress, which was occurring as early as 8 PM on September 24, 2003, when he wrote his first note to his family. He also testified that there was inadequate suctioning of the tube. It was his opinion to a reasonable degree of medical certainty that the doctors and nurses, and therefore Temple University Hospital, through its agents, deviated from the standard of care by failing to act in a timely manner to treat plaintiff’s decedent’s respiratory distress and decompensation. These deviations caused Mr. Small a prolonged period of overexertion to try to breathe, which resulted in his cardiovascular collapse and death.

During her examination in the plaintiff’s case, Dr. Agrama was qualified, by defense counsel, to testify as an expert for the defendants. Mr. Perlberger got her to admit that if the nurse did not communicate with her about the notes, it was a breach in the standard of care.
The defendants though stating before the jury they would recall Dr. Agrama in their case, did not do so, and called only their expert, Dr. Michael Grippi and the two other physician defendants. Mr Perlberger was able to get an admission from the defense expert that Mr. Small may have been in respiratory distress between 8 and 9 PM on 9/24, when he wrote the notes, and that a failure to give ordered medication after 9 by the nursing staff was a breach in the standard of care. The jury charge was made without objection that Temple was responsible for the actions of its nursing staff.