New York Jury Returns Defense Verdict in Nerve Injury Trial

Shawnee Mission, Kansas – December 2, 2009 – Preferred Physicians Medical (PPM), industry leading provider of professional liability insurance for anesthesia practices, announced today that a jury recently returned a defense verdict in favor of a PPM insured anesthesiologist and his anesthesia practice group in Saratoga County, New York.

A 47 year-old female presented for right shoulder arthroscopy.  Prior to the procedure and after obtaining informed consent, the PPM insured anesthesiologist attempted to place an interscalene brachial plexus block.  The block included a total of 3 ml of injected mepivacaine and bupivicaine with a nerve stimulator needle at the C6 level.  After receiving the appropriate response with the nerve stimulator and 1 cc test dose, the nurse was told to aspirate again and inject the local anesthetic.  At this point the patient complained of shortness of breath. The block was discontinued.  The patient was oxygenated and ultimately intubated.  She remained on the ventilator for approximately four hours.  At the time of extubation she complained of numbness in her right arm and hand.  A neurology consult was ordered and a MRI was performed.  The MRI showed a syrinx, which the radiologist did not think was related to the procedure.  The patient was ultimately diagnosed with a brachial plexus injury and permanent injury to her right arm and hand.

The patient filed a lawsuit against the PPM insured anesthesiologist, the anesthesia practice group and the hospital.  Plaintiff alleged she was not provided with adequate informed consent and that her spinal cord was pierced by the needle during administration of the interscalene block resulting in a permanent brachial plexus injury.

Plaintiff's anesthesiology expert, Steven Schrenzel, M.D., testified that although the procedure note indicated the block was performed appropriately, it was his opinion that is not what transpired and the PPM insured anesthesiologist entered the spinal cord with the needle.  Dr. Schrenzel testified further that the needle entering the spinal cord caused the syrinx, which led to the permanent brachial plexus injury.  Dr. Schrenzel also testified that based on plaintiff's testimony she was not given adequate informed consent regarding the risks, benefits and alternatives.

Defense anesthesiology expert testified that the interscalene block was performed appropriately and nerve injury was a known risk of the procedure.  The defense anesthesiology expert also testified that the patient was given adequate informed consent including the risks, benefits and alternatives.

Plaintiff's last settlement demand prior to trial was $1.9 million.  The PPM insured anesthesiologist consented to settlement and requested that the case be settled based on the plaintiffs' high economic damages claim.  With the PPM insured anesthesiologist's consent, PPM offered $425,000 prior to trial.  Plaintiff rejected PPM's settlement offer and the case proceeded to trial.

During trial, defense counsel recommended entering into a high/low agreement to protect the PPM insured anesthesiologist from exposure to his personal assets.  The high/low agreement capped the PPM insured anesthesiologist's liability exposure under his available insurance policy limits so there was no risk to his personal assets.  However, the high/low agreement also guaranteed payment to plaintiff even if the jury returned a defense verdict.

The hospital was dismissed from the lawsuit mid-way through trial.  In closing arguments, Plaintiff's counsel asked the jury to return a verdict for $3.95 million.  Following a two-week jury trial, the jury returned a defense verdict finding no negligence against the PPM insured anesthesiologist or the anesthesia practice group.  As a result of the defense verdict, PPM paid plaintiff the confidential low amount of the high/low agreement that was reached during trial.

The PPM policyholders were represented by Mae D'Agostino, Esq. of the law firm D'Agostino, Krackeler, Baynes & Maguire, PC, Menands, NY.  The file was manged on behalf of PPM by Shelley Strome, Senior Claims Specialist.