$5.1 Mil. Awarded in Montco to Brain-Damaged Woman

, The Legal Intelligencer


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A $5.1 million verdict has been awarded by a Montgomery County jury to a woman who was injected with the wrong medication during nasal surgery, causing her to suffer cardiac arrest and sustain brain injuries as a result.

The Montgomery County jury handed up the $5.1 million verdict to Jacqueline DiTore and her husband in DiTore v. Zager. The jury found defendants Dr. Warren H. Zager and Abington Surgical Center (ASC) 38.5 percent and 61.5 percent negligent, respectively. All defendants other than Zager, his practice group and ASC were dismissed from the case before trial.

Andrew Youman, Jason Pearlman and Kristen Loerch Sipala of Philadelphia-based Kline & Specter represented the plaintiffs in the case. Youman said there was a high-low agreement in place, although he could not reveal the specific details.

Youman did note, "The low was every penny of insurance coverage in the case and the high was excess money out of people's pockets. ... And we ended up with the high—all of the insurance coverage plus money from the defendants in excess of the insurance coverage."

DiTore was awarded $4.6 million and her husband was separately awarded $500,000 for loss of consortium.

The case stems from a surgical procedure that DiTore underwent June 7, 2010, at ASC. According to the plaintiffs' pretrial memorandum, the surgery was an outpatient ear, nose and throat procedure to be performed by Zager.

Youman told The Legal that DiTore's injuries "occurred through a series of events that were the responsibility of everybody in the operating room, including the surgeon, the nurses and the CRNA. All of them failed to follow safe medication procedures and the surgeon in particular failed to halt surgery after finding that there was no upside in continuing what was an elective procedure and determining there had been a large medication error and overdose."

Prior to the procedure, Zager called for an injection of 1 percent lidocaine with epinephrine for local anesthesia. According to court papers, Zager also ordered that cotton balls soaked in Afrin (a topical vasoconstrictor) be prepared so they could be put in DiTore's nose to control bleeding during the surgery.

The circulating nurse poured the Afrin, a clear liquid, into an unlabeled cup. Court papers said the nurse did not communicate to others in the operating room that she was pouring Afrin into the cup.

According to court papers, a second nurse saw the cup of Afrin and drew it into an unmarked syringe, thinking it was the lidocaine.

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