Jury Decides on No Award for Family of Malpractice Victim

By: Gerri L. Elder

Personal injury lawyers in Pittsburgh are seeking a new trial in a medical malpractice case in which the family of a patient who died was awarded $0 in survival damages. The 12-member jury found that the hospital was negligent in the patient's death but said that "no amount of damages will adequately punish" the hospital.

The Legal Intelligencer reported that 24-year-old Michael Rettger died after his brain abscess was allegedly not treated in time by hospital staff. On May 23, the jury in the case returned its verdict, finding that the care Rettger received at the University of Pittsburgh Medical Center at Shadyside was a factual cause of harm to him and fell below the standard of medical care. The jury awarded $2.5 million in Wrongful Death Act damages, but awarded Rettger's family nothing for Survival Act damages.

The jury statement attached to the verdict form said, "After eight days of testimony in the case of Rettger v. UPMC Shadyside, it is the unanimous opinion of the jury that no amount of damages will adequately punish UPMC. It is our belief that UPMC Shadyside's policies, culture, and lack of competent supervision resulted in the death of Michael Rettger."

Lawyers representing Rettger's family have filed a motion for a new trial limited to determining damages under the Survival Act because they believe that the lack of an award under the Survival Act is against the weight of the evidence.

Experts testified at the trial that Rettger's lost earning capacity was between $4 million and $15 million. Given that testimony, the plaintiff's lawyers believe that the jury disregarded the judge's instructions in the case and for whatever reason, decided to reject the loss of earning capacity evidence.

Rettger worked as an accountant with Ernst & Young. He was in West Virginia in November 2003 to conduct an audit of Cabell Huntington Hospital when he became ill. He was admitted to the hospital and a computerized topography scan and magnetic resonance imaging of his brain showed that he had a large, swelling mass in his brain.

He was transferred to UPMC Shadyside on November 15, 2003 in order to be closer to his home. The plaintiff's statement indicated that a number of medical personnel at UPMC failed to provide adequate care for him. In fact, according to the complaint, three days after Rettger was admitted to UPMC Shadyside, when he was showing signs of a potentially fatal brain herniation, medical staff failed to intervene in time to prevent his death.

At 1:05 a.m. on November 19, 2003, Kirsten Stalder, who was Rettger's night nurse, documented in his chart that his right pupil was fixed and dilated, which is a sign of impending brain herniation. Stalder said that she contacted neurosurgeon Eugene Bonaroti about the fixed pupil. Bonaroti said that Stalder only reported a sluggish pupil and if he had been informed that it was a fixed and dilated pupil, he would have come to the hospital immediately.

Stalder did not report Rettger's fixed and dilated pupil to anyone else at the hospital either. She failed to invoke the nursing chain of command or call an emergency "Condition C," according to the plaintiffs.

The following day, Rettger underwent surgery, including a partial lobectomy, but was pronounced dead at 9:03 a.m. on November 20, 2003. The plaintiffs say that Rettger died because the medical treatment and surgery came too late to prevent the brain herniation and that it could not be reversed.

The hospital argued in its defense pretrial statement that the nursed that cared for Rettger properly cared for and evaluated his condition and reported information to his physician. It also argued that survival damages were uncertain because it was unclear what path Rettger's career would have taken.

Lawyers for UPMC have filed a motion for a new trial on all issues.

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