Stoffer - JVR

C A S E S

Stoffer - JVR

KURT D. STOFFER vs. MAURICIO HERNANDEZ, M.D., MADGA PERES,M.D., YASMIN YUNUS, M.D., CHANDRAKANT S. SHAH, M.D., FAMILY FIRST MEDICAL CENTERS, INC., f/k/a PCA FAMILY MEDICAL CENTERS, INC., f/k/a CENTURY MEDICAL CENTERS, INC.

Copyright 1997 Florida Legal Periodicals, Inc.
FLORIDA JURY VERDICT REPORTER (FJVR)

Docket No. 96-17298 CA-01
FJVR Reference No. 97:5-35
Verdict Date: April 9, 1997
Publication Date: May 1997

TOPIC: Medical Malpractice - Crohn's Disease - Diagnosis And Treatment

RESULT: $ 750,000 for Plaintiff (verdict)
($ 375,000 - past pain and suffering; $ 375,000 - future pain and suffering).

Comment: Attorneys? fees were also awarded for a total award in excess of $1.3 Million Dollars
Defendant Family First's Negligence: 80%
Defendant Hernandez's Negligence: 20%

STATE: Florida
COUNTY: Dade
JUDGE: Robert Kaye

PLAINTIFF PROFILE:
Age: 26
Sex: Male
Occupation: Billing Clerk

PLAINTIFF ATTORNEY: Kenneth J. Schwartz, Mark R. Osherow, and Laura P. Riddle of Osherow & Schwartz, P.A., Boca Raton

DEFENDANT ATTORNEY: Hayes G. Wood and George F. Quintairos of Wood & Quintairos, P.A., Miami

CAUSE OF INJURY: Plaintiff had experienced intermittent pain in his abdomen for approximately six months. Towards the end of October 1993, the chronic pain became more frequent, waxing and waning several times a day. Plaintiff had medical insurance through an HMO which provided service through Defendant Family First Medical Centers. On November 2, 1993, Plaintiff went to Family First's Westchester Clinic. At the clinic, Plaintiff saw Defendant Dr. Peres, a family medicine practitioner, who referred him to the Urgent Care Center (part of the clinic), where he was seen by Defendants Drs. Yunus and Shah. Plaintiff was sent home with a diagnosis of constipation. Plaintiff returned to the clinic the next day, since the pain did not subside. Again, he saw Drs. Peres, Yunus, and Shah, who each either prescribed or suggested different medication or dietary changes. It is believed that a flat plate x-ray was taken at this time. However, this could not be substantiated due to the fact that the medical records were unavailable from the Westchester Clinic. Plaintiff took magnesium sulfate and another laxative, which had been prescribed to him at the clinic by one of the doctors, causing Plaintiff to have severe pain and diarrhea. Plaintiff returned to the clinic on November 8, 1993, at approximately noon, again seeing the same three doctors. This time, the doctors apparently referred Plaintiff to a surgeon for a possible appendicitis. Plaintiff waited approximately six to seven hours for Defendant Dr. Hernandez, a general surgeon, to see him. Dr. Hernandez ordered an appendectomy, and told Plaintiff to drive himself from the Westchester Clinic to Golden Glades Regional Medical Center, approximately thirty miles from the clinic, for the procedure. The informed consent form, although signed by Plaintiff, was not initialed in the relevant places. Plaintiff asserted at trial that Dr. Hernandez failed to obtain informed consent for the operation performed prior to surgery. At surgery, Dr. Hernandez discovered that Plaintiff did not have an appendicitis, but rather inflamed bowels. Believing the inflammation was a cecal tumor (an extremely rare condition), Dr. Hernandez removed approximately twelve inches of Plaintiff's intestines. Following the procedure, the pathologist determined that Plaintiff had active Crohn's disease, an inflammatory bowel disease which is primarily treated with medication. In Crohn's disease, surgery is generally only indicated for obstructions and strictures, once attempts have been made to bring the disease under control by medication. The testimony ofboth Plaintiff's and Defendants' experts demonstrated Plaintiff did not suffer from either an obstruction or strictures. Plaintiff presented evidence that many patients with Crohn's never require surgery, and surgeons rarely perform resection of affected bowel while the disease is active. Within a month of the surgery, Plaintiff developed a fistula (a canal that formed between Plaintiff's intestines at the point of the surgery and Plaintiff's skin), causing intestinal fluid, fecal material, and partially digested food to seep out onto Plaintiff's abdomen. This complication led to a second surgery and the removal of more of Plaintiff's bowel, including additional small intestine.

NATURE OF INJURY: Since the surgery, Plaintiff has experienced, on average, six or more episodes of explosive diarrhea per day. Dr. Clarke, Plaintiff's expert and Mr. Stoffer's treating gastroenterologist following the second surgery, and Dr. Martin Kalser, also a treating gastroenterologist retained by the Family First Clinic, testified that the diarrhea has been caused by malabsorption ofbile salts in the intestines due to the removal of Plaintiff's terminal ileum and ileo cecal valve, rather than by Crohn's disease. The evidence demonstrated that while Plaintiff's bowels continued to show some minor microscopic findings consistent with Crohn's disease, the disease is generally not active. Dr. Clarke also testified that had Plaintiff received medication instead of surgery, there is a high probability that Plaintiff would not have needed surgery.

PLAINTIFF EXPERT WITNESSES: Brian Clarke, M.D., Gastroenterology, Indianapolis, IN

DEFENDANT EXPERT WITNESSES: Lynn Carmichael, M.D., Family Medicine, Miami Malcolm Goldsmith, M.D., Surgery, Miami Chester Cassel, M.D., Gastroenterology, Miami Maria Munoz, M.D., Pathology, Miami

EDITOR'S NOTE: Defendants Drs. Peres, Yunus, and Shah were not held individually liable. Defendants offered $ 100,000; initially, Plaintiff's demand for judgment was $ 250,000 as to Family First Medical Centers and $ 300,000 as to Dr. Hernandez. Prior to trial, Plaintiff demanded $ 750,000 to $ 1,000,000. Golden Glades Regional Medical Center settled prior to trial for $ 5,000.

PLAINTIFF'S ATTORNEY'S COMMENTS: A significant theory of the case was that the doctors involved were mismanaged by Family First Medical Centers, which resulted in negligent care on the part of the doctors. Although much of the relevant evidence of mismanagement was excluded under the guise of confidential information (peer review and quality assurance) or never produced, there was significant deposition testimony of Defendant doctors as to the restraints placed upon them by Family First and its wholly owned clinic, as to how they were allowed to practice medicine, and care for patients. Also significant was the failure of Family First and its doctors to produce medical records of at least three visits to the Westchester Clinic prior to the surgery at Golden Glades Regional Medical Center.

OSHEROW, SHINER & ASSOCIATES, P.A., BOCA CORPORATE PLAZA, SUITE 650, 7900 GLADES ROAD, BOCA RATON, FLORIDA 33434
TELEPHONE: (561) 477-5054 FACSIMILE: (561) 477-3661 www.osherowlaw.com E-MAIL: mrosh@osherowlaw.com