Court upholds $14.2 million judgment against UPMC

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A panel of Superior Court judges on Monday upheld what amounts to a nearly $14.2 million judgment against UPMC Shadyside, affirming Allegheny County's largest medical malpractice award in at least the past 13 years, an attorney for the plaintiff said.

The March 2012 judgment, which the hospital appealed, stemmed from the death of Michael Rettger, a 24-year-old accountant from Murrysville, Westmoreland County, who was taken to UPMC Shadyside on Nov. 15, 2003, after doctors in Cabell Huntington Hospital in Huntington, W.Va., where he was working, found a mass in his brain diagnosed as a potential brain tumor or abscess.

Mr. Rettger was scheduled for surgery at 7:30 a.m. Nov. 19, 2003, but his condition deteriorated the night before and he was on life support by the time he underwent a pair of emergency procedures later that day and died.

About 1 a.m. on the day Mr. Rettger was scheduled for surgery, a nurse noticed that the pupil of his left eye was "fixed and dilated, indicating escalating pressure on the brain, which, if not treated on an emergency basis, could lead to brain herniation and ultimately death," court documents say. The nurse, Kirsten Stalder, phoned the neurosurgeon, Eugene Bonaroti, though their accounts of what was said during the conversation differed. Dr. Bonaroti did not report to the hospital in response to the call or order emergency treatment, and the nurse did not report the issue to the nursing "chain of command" or call for immediate critical care, court documents say.

Paul Lagnese, a Pittsburgh attorney who represented Mr. Rettger's surviving relatives, said it was the central piece of the first trial, when a jury awarded Mr. Rettger's estate $2.5 million on a wrongful death claim against UPMC Shadyside.

"You believe who you want to believe, but somebody isn't telling the truth here," Mr. Lagnese said.

However, the jury in that trial made no award on a "survival action" filed on behalf of the family, which would base damages on the money Mr. Rettger could have expected to earn during what Mr. Lagnese said was a budding and promising career, and the court granted a new trial on that issue.

In November 2011, the jury awarded Mr. Rettger's estate $10 million, and the tab increased to nearly $13 million by March 2012 to include delay damages and post-judgment interest after UPMC filed post-trial motions.

"In the first trial, everyone agreed that if, at 1 a.m., he had been treated appropriately, he would have returned to work as an accountant," Mr. Lagnese said.

He added that with delay damages and interest, UPMC Shadyside will now owe close to $14.2 million.

The Superior Court shot down UPMC Shadyside's legal arguments, which included that trial court erred by concluding that Mr. Rettger's pre-existing condition was irrelevant to the determination of survival damages, that certain testimony was excluded, that the court should not have allowed a closing argument by the plaintiff that "exhorted the jury to punish" the hospital and that the court's instructions "probably misled" the jury, among others.

"The grant of a new trial was strictly to determine the amount of survival damages, not to allow the hospital to claim that Rettger would not have recovered or been able to work as an accountant," Superior Court Judge Anne E. Lazarus wrote in the decision.

In a concurring memorandum, Judge Mary Jane Bowes wrote that UPMC Shadyside attempted to reverse its own position in the second trial on the lost earnings in a "thinly veiled attempt to relitigate liability."

It attempted to argue through expert testimony that even if Mr. Rettger was treated expeditiously, he would have died or sustained permanent brain damage and would have been unable to return to work as an accountant.

"I submit that the hospital, having espoused at the first trial that Mr. Rettger was neurologically intact at 1 a.m. and having offered expert testimony in support of that proposition, is bound by that admission," she wrote.

John C. Conti, an attorney for UPMC, referred questions to the hospital's appellate counsel, Kim M. Watterson of Reed Smith. Ms. Watterson could not be reached for comment on the case.

Robert Zullo: or 412-263-3909.

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