$3 million awarded over deadly surgical error by a doctor later killed in motorcycle crash

by Julie Kay

The Daily Business Review
Copyright 2004

MEDICAL MALPRACTICE

A jury has awarded $3 million to the family of a West Palm Beach mother ot two who died after a surgeon nicked her lung during a routine procedure to insert a chest tube.

But it’s unclear how much the husband and two teenage children of Kimberly Dawn Kennedy will be able to collect, since the negligent surgeon died in a motorcycle accident within a year of his patient’s death.

Kennedy, 38, had just been diagnosed with leukemia. There was no dispute that the surgeon, Dr. John Kearney, erred by puncturing Kennedy’s lung during the operation at JFK Medical Center in West Palm Beach in September 2001. But the defense contended that the patient was dying anyway from leukemia and so any damages were minimal.

After a five-week trial, the jurors in the Palm Beach Circuit Court case deliberated for a day-and-a-half before delivering the judgment in favor of Kennedy’s family on April 1.

The jurors ascribed 90 percent liability to deceased surgeon Dr. John Kearney and 10 percent liability to Dr. William Caskey, and anesthesiologist, who also was a defendant in the case. A number of other defendants, including several doctors and the hospital, were found not liable.

The jury awarded Kennedy’s husband, Bryan, $1.5 million, her 19-year old son, Bryan Kennedy Jr., $750,000, and her 15-year old daughter, Kristin Danielle Kennedy, $750,000. All damages were noneconomic, for loss of companionship and, in the children’s cases, instruction and guidance, and for the family’s pain and suffering.

Both plaintiff and defense attorneys declared victory. The plaintiffs had sought $30 million in damages.

“Certainly we would have liked a larger verdict, but we do consider this a victory, particularly in this medical malpractice climate,” said Rebecca Larson, of Montgomery & Larson in West Palm Beach who handled the case with her partner, Bob Montgomery Jr.

Mike Mittlemark, a partner at Michaud Buschmann Mittlemark Millian Blitz & Shendell in Boca Raton, who represented Dr. Kearney’s estate, said he is considering an appeal. “The jurors were swayed by sympathy and not by the facts,” he said.

Mittlemark said he did not know whether the verdict was collectable. Jay Chimpoulis, a partner at Chimpoulis & Hunter of Fort Lauderdale who represented two other doctors in the case, said Kearney’s liability policy limit was $500,000.

Larson said that if the negligence had occurred after the new statutory caps on noneconomic damages in med mal cases took effect last year, the Kennedy family would have received only about $1million total.

Kennedy, a dental hygienist who had been married for 20 years, had just been diagnosed with leukemia and was admitted to the JFK Medical Center on Sept. 27, 2001, to have a chest tube surgically implanted. The tube was to administer chemotherapy drugs through her body.

But after the surgeon nicked her lung, Kennedy’s condition rapidly deteriorated. Then more mistakes were made, Larson said in an interview. Her lungs filled with blood, her blood pressure fell to 70/49 and she went into shock. A chest X-ray showed an abnormality. But instead of ordering a follow-up X-ray an hour later, doctors waited until the next morning, Larson said. Kennedy died Oct. 5.

The plaintiffs’ star witness was Palm Beach County Medical Examiner Peter Gillespie, who disputed the defense’s assertion that an autopsy report showed that the cancer had spread through Kennedy’s body and that she would have died soon anyway. Gillespie argued that the defense could not justify that prediction.

Chimpoulis said that the fact that Kearney was not there to defend himself hurt the defense. “When the client’s not there to assist in the defense, the lawyer’s hands are tied,” he said.

 

 

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