Near-Record Boston Medical Malpractice Award: $15 Milion In Boy’s Death

2009 ended with a big bang when it comes to Massachusetts injury law, specifically, Massachusetts medical malpractice. A lot of legal specialists such as me are paying close attention to a jury verdict that was handed down last month in a Suffolk County medical malpractice case: A $15 million award to the parents of a boy who died after being treated at Children’s Hospital in Boston.

The case, brought by the parents of a 3 year-old boy who died in December 2004 after undergoing surgery for a birth defect at Children’s Hospital, has caught the attention of both plaintiffs lawyers as well as insurance defense attorneys. The boy’s parents, Brian and Andrea Fox of Philadelphia, said they brought the suit because they believed that doctors at Children’s Hospital had lied to them about the treatment their son received at the hospital. After four days of deliberations in Suffolk Superior Court, the jury found that two doctors at the hospital caused the boy’s death: Dr. James Lock, and Dr. James A. DiNardo, an anesthesiologist. Dr. Lock had until last year been the physician in chief at Children’s Hospital.

Massachusetts juries have awarded medical malpractice awards of this size before (awards this high don’t happen often, but they have happened.) What’s unusual about this jury award is not only its amount, but the fact that most jury awards, and non-jury settlements, of this amount, are given when the victim is still alive, and will require several or many years of specialized medical and custodial care. Awards and settlements of that size are designed to pay for the future expenses of such care, which over time can easily cost millions. So when a jury awards damages that are this high, in a case where the victim is deceased, it’s very noteworthy. Also important: The boy’s parents will not receive the full $15 million, but an un- unspecified, lesser sum. This is because the attorneys for the plaintiffs and the defendants entered into an agreement before the case went to the jury, informally called a “High-Low Agreement.” This agreement is designed to guarantee the plaintiffs a minimum amount of damages, regardless of the jury’s verdict, in exchange for a cap on a possibly higher damages figure that the jury may award. Lawyers for both parties would not reveal what this figure is, and that too is standard procedure: These agreements are under seal. The jury did not know this, however, and what’s outstanding here is, not knowing this, how much they awarded the plaintiffs.

The case had an interesting history: The patient, Jason Fox, was born in July 2001 with a medical condition known as “Tetralogy of Fallot”, a complicated but usually treatable birth defect, which restricts the flow of blood through the heart. Jason’s case was particularly serious, and prevented oxygen from being transported to his organs and limbs. During his first two years, the boy was treated at Children’s Hospital of Philadelphia, where he underwent open heart surgery and seven separate cardiac catheterizations, all to widen the arteries that transported blood to the lungs. When the boy’s condition did not improve, his Philadelphia doctors referred Jason to Dr. Lock in Boston, who had pioneered the use of cardiac catheterization to repair these kinds of birth defects. Dr. Lock agreed to try to undertake this procedure with Jason. However, on April 18 2003, just hours after the second catheterization, the boy suffered a seizure. A CAT scan revealed that contrast dye, which is injected during the procedure to better highlight the cardiac anatomy, had leaked into his brain. Bad went to worse: Following his seizure, Jason had two MRIs to gauge the extent of his brain damage – and it was discovered that a tiny fragment of metal had become lodged in the boy’s brain. Though his doctors concluded the fragment probably originated from a medical instrument, no one could determine whether it happened during a procedure at Children’s in Boston, or previously at another hospital.

When the boy left Children’s Hospital in Boston, he was unable to walk or speak. He died shortly thereafter. His father, Brian Fox, testified that Jason entered Children’s “A playful and active little boy.” “When he came out of the hospital, he was flown by air ambulance to a neurological rehabilitation facility near where we lived.” But William J. Dailey Jr., the Boston lawyer for Lock and DiNardo and two other doctors, who were found negligent but not responsible for the death, said he was stunned by the verdict. “If something could have been done in Boston, it would have been extraordinary,” Dailey said. As a Boston medical malpractice lawyer viewing this jury award, I can sense even from a distance, that this jury felt there was some type of effort either by these doctors, or the hospital, to tell less than the full story of what happened here. This sense if reinforced that the Massachusetts Board of Registration in Medicine (which investigates complaints aganst doctors,) is still investigating Dr. Lock and one of the other physicians who was found negligent, a Dr. Peter Laussen, who directed the cardiac intensive care unit. The Board reopened the investigation last year, after learning that the hospital may not have provided complete information about the treatment doctors gave Jason.

Not a happy ending for anyone. As a Boston injury attormey, I can assure you that none of these cases are. But if this case can serve as a lesson about anything, it is that doctors and hospitals must – no matter how compromising they think the information might be – reveal everything and anything that may have caused a patient’s injuries or death. I think this jury sensed that such full disclosure wasn’t forthcoming to the parents of this boy, and whether phrased as “punitive” damages or not (and none were,) they decided to inflict some punishment here.

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