Trial report as published by Vermont Lawyer.
St. Albans, VT — On October 30, 2008, a Franklin County jury returned an eight-hundred thousand dollar verdict in a medical malpractice wrongful death case. The Estate of Mary Stone was represented by Attorney Christopher J. Maley, Burlington, VT.
Medical Malpractice Trial Report
In 2005, John Nicholson, M.D. was Mary Stone's primary care doctor. Mrs. Stone was on the blood thinner Coumadin for a history of deep vein thrombosis and a heart condition. The goal of the Coumadin was to prevent unnecessary and dangerous blood clots. Patients on Coumadin require close monitoring of their blood's ability to clot by a test called an INR. In late October and November, 2005, Dr. Nicholson was responsible for monitoring Mrs. Stone's INR values. He failed to properly monitor the values and as a result, Mrs. Stone's blood became too thin, depleted of clotting factors, and susceptible to uncontrolled bleeding. On November 18, 2005 Mrs. Stone grazed her ear while being helped out of her wheelchair and into a car. In the early morning of November 19, 2005, she became unresponsive and was taken by ambulance to Northwestern Medical Center. At the hospital, her INR was found to be 12.29, a dangerously high level. The target therapeutic range was 2 to 3. A CT scan revealed that she had suffered a massive intracranial hemorrhage which caused herniation of her brain. She remained in a coma at Northwestern Medical Center until her death on November 22, 2005.
She was fifty-six years old and left a spouse of thirty-seven years and four adult children.
Prior to the cerebral bleed, Mrs. Stone suffered from health problems that significantly impacted her life expectancy. She had cancer, significant cardiac problems, diabetes, depression, hypertension, high cholesterol, and elevated blood pressure. She also had thromboembolic disease that required the placement of a Greenfield filter.
In late 2004, Mrs. Stone's cardiac condition resulted in multiple hospital visits. She was hospitalized in May 2005 and doctors confirmed a prior heart attack, coronary artery disease, congestive heart failure, and atrial fibrillation. Testing revealed an ejection fraction of 25% which showed a significantly reduced capacity for her heart to pump. Physicians performed bypass surgery, placing a stent in one of her arteries. They also placed a defibrillator.
Mrs. Stone also suffered from plasmacytoma, a rare blood cancer that originates from plasma cells in the bone marrow. In the majority of cases plasmacytoma progresses to a fatal cancer called multiple myeloma. Mrs. Stone's plasmacytoma was originally diagnosed in 1988 as a solitary tumor on her lower back. Surgery was performed in 1989 to remove the tumor. After receiving radiation and undergoing physical therapy, Mrs. Stone enjoyed good health until late 2002, early 2003, when the tumor returned in the same location in her lower back. She received chemotherapy for two years, but by 2005 the tumor grew to the point that it was pressing against the nerves of her spine causing her back and leg pain and weakness in her legs. By the Spring of 2005, Mrs. Stone was wheelchair bound and in significant pain.
On July 29, 2005, Mrs. Stone underwent surgery to remove the tumor from her spine. The hope of the surgery was to lessen her pain and improve her mobility, not to cure her plasmacytoma. The surgeons were unable to remove all of the tumor. Due to life-threatening complications, Mrs.Stone was hospitalized for eighty-five days at Fletcher Allen Health Care and Fanny Allen Rehabilitation Center. She underwent a second major surgery to stabilize her spine on September 15, 2005. After extensive rehabilitation, she was discharged home on October 21, 2005 under the care of visiting nurses. During the final month of her life Mrs. Stone was confined to bed or a wheelchair and in significant pain, but her health, mobility, and spirits slowly improved.
Approximately three weeks before trial, Defendant decided to admit liability. As a result of the admission, Plaintiff was precluded from introducing evidence regarding what Defendant Dr. Nicholson did or failed to do and the trial was limited to a determination of damages. The Estate made no claims for economic damages. The damages were limited to the loss of the deceased's love and companionship and her conscious pain resulting from her cerebral bleed.
Trial took place from October 27-30, 2008.
Mrs. Stone's life expectancy was disputed at trial. Also at issue was the extent to which her health problems would have prevented her from providing support and companionship for her spouse and children during her limited life expectancy. The parties called competing medical experts on these issues.
Plaintiff called Joseph Weinstein, M.D., a cardiologist and internist who practices in Brockton, Massachusetts. Dr. Weinstein testified that the placement of a stent and a defibrillator helped stabilize Mrs. Stone's cardiac condition. Dr. Weinstein testified that taking into account Mary's cardiac condition, and her other comorbidities, including her plasmacytoma, that Mary would have lived five years had she not died due to the cerebral bleed. Dr. Weinstein based his opinions in part upon a New England Journal of Medicine study of patients with defibrillators, prior heart attacks, and ejection fractions of less than thirty percent. The article was important to Dr. Weinstein because it demonstrated that patients with defibrillators were much less likely to suffer heart attacks and that the majority of patients in the study were projected to be alive five years after the placement of the defibrillator. Dr. Weinstein also testified that Mrs. Stone experienced conscious pain and suffering during the short time during the evening of November 19th when she complained of head pain prior to lapsing into a coma. Dr. Weinstein testified that her heart condition would not have caused a cognitive decline during her anticipated life expectancy.
Plaintiff also called Joel Schwartz, M.D., Director of Oncology at North Shore Medical Center in Peabody, Massachusetts. Dr. Schwartz testified that Mrs. Stone's plasmacytoma would have likely progressed to multiple myeloma. He testified that taking into account only her cancer, and not considering her other significant comorbidities, that Mrs. Stone would have lived five years. Dr. Schwartz testified that despite the likely progression to the fatal form of the cancer during her life expectancy that she would not have experienced a cognitive decline. Dr. Schwartz further testified that had Mrs. Stone lived that ultimately she would have needed further chemotherapy with its attendant side effects.
Defendant called Chris Elaine Holmes, M.D. Dr. Holmes is an oncologist, hematologist, and internist who practices at Fletcher Allen Health Care. She is the Director of Adult Hemophilia and Assistant Director of the Thrombosis and Hemostasis Program at the University of Vermont. She specializes in malignancies of the blood and treats patients with plasmacytoma and multiple myeloma.
Dr. Holmes testified that the combined effect of Mrs. Stone's comorbidities meant that she would have lived only three years. Dr. Holmes testified that because of Mrs. Stone's cancer that she would not have been a candidate for the New England Journal of Medicine cardiac study relied upon by Dr. Weinstein. Therefore, Dr. Holmes was of the opinion that the survival statistics in the study did not apply to Mrs. Stone. Dr. Holmes relied upon other medical literature to support her opinion of a three year life expectancy. She testified that had Mrs. Stone not died of a cerebral bleed that her health would have declined to the point where she would have suffered from debilitating bone pain due to her cancer. Dr. Holmes testified that Mary would require such significant narcotics that she was likely to suffer from confusion, lethargy, and other side effects. She testified that the location of Mrs. Stone's tumor in her lower spine was particularly problematic and predicted that as the tumor grew that the blood supply to Mrs. Stone's spine would have been choked off which would have proven to be fatal. She further testified that to the extent chemotherapy was available for Mrs. Stone's cancer that it was unlikely that she would respond favorably due to the refractory nature of her disease.
All experts agreed that whether Mrs. Stone lived three years or five years that she would have likely been confined to a wheelchair, that she would have continued to deal with significant pain, and that she would have needed heavy narcotics.
The deceased's spouse and the four children testified. Mr. Russell Stone testified about the history of the thirty-seven year marriage and the activities he continued to enjoy with his wife up until her death. Mr. Stone testified that he and Mrs. Stone spent most of their free time together and that most of that time involved visiting their children.
The four children are in their thirties and forties and all have families of their own. Their testimony revealed that they continued to maintain close contact with their mother. They all lived within a fifteen mile radius of her house and she was the social center for the family. Mrs. Stone helped raise the grandchildren and despite her health problems regularly attended family events until the time she died. The children enjoyed playing cards and going to bingo with their mother and regularly relied upon her for emotional support.
Defendant argued that Mrs. Stone's health problems would have significantly limited her ability to provide support for the family during the three years that he claimed that she would have lived. Defendant also argued that the adult surviving children had already benefitted from their mother's care, nurture and protection.
Plaintiff argued that despite Mrs. Stone's health problems, pain, and lack of mobility that she would have continued to provide love, companionship, advice and support for the family. Plaintiff highlighted examples of companionship and support that Mrs. Stone provided for the family in the midst of her serious health concerns during the last six months of her life.
Defendant objected to Judge Crawford's jury instruction that surviving adult children were entitled to receive damages for the loss of love and companionship of their mother under the wrongful death statute. An appeal on this issue is possible.
The parties attempted to mediate the case on August 20, 2008. Negotiations continued after the mediation, but Defendant's last offer was well less than half of the jury verdict.
Chris Maley told Vermont Lawyer that the Stones "are a special family and Mary was a wonderful woman. The family is very pleased that the jury recognized the significance of their loss."