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Jury Award in PA Case Questioned

October 15, 2004
A question about whether a jury in a medical malpractice case was aware of a debate concerning caps on damage awards came up when the jury awarded $825,000 to a Harrisburg, Pa. man earlier this month.

Elmer Varner, 63, was disabled in 1997 by complications from heart surgery that went unnoticed for hours by a doctor at Polyclinic Hospital.

Jurors awarded him $500,000 for non-economic damages, or pain and suffering, after a five-day trial. He was also awarded $250,000 for future damages and $75,000 for past medical costs. Physicians' groups statewide have argued that jury awards for non-economic damages should be capped at the $250,000 amount.

Jurors were questioned in detail before the trial about their knowledge and position on the debate about capping medical malpractice awards. "Certainly, there were no caps involved here," said Stephen R. Pedersen, Varner's attorney, in published accounts.

Pedersen explained that after heart valve surgery in April 1997, Varner, a softball and baseball umpire, suffered a "heart bleed" that filled the lining around his heart, known as the pericardium. The bleed, Pedersen alleged, caused pressure to build around the heart. Pedersen said it caused long-range health problems for his client -- weakness, poor sense of balance and restrictions on his ability to stand and walk.

Varner has also said he suffers from depression, confusion and a loss of memory since his surgery. Pedersen alleged during trial that Varner's physician, Dr. Craig Wisman, failed to administer the proper standard of medical care by not giving Varner an electrocardiogram, which he and an expert witness he had called alleged would have discovered the bleeding around Varner's heart.

Varner sued Wisman, Polyclinic Medical Center and another physician, Dr. John P. Judson, in March 1999 but Polyclinic and Judson were later dropped from the case. Katherine Kravitz, an attorney for Wisman, maintained that her client's care not only adhered to but exceeded generally accepted standards of medical care.

Kravitz pointed out that Wisman stayed with Varner for more than 18 hours when Varner took a turn for the worse after the initial valve surgery, and then brought him back down to the operating room after bleeding around his heart developed. Kravitz said that Wisman believed that Varner's initial problems resulted from what is known as a "pump failure," a condition commonly treated with medication.

Pedersen maintained at trial that Wisman's belief that Varner's heart bleeding had been caused by pump failure accounted for a more than six-hour delay in returning Varner to the operating room.

Kravitz said she did not believe that jurors deliberately selected the $250,000 non-economic damages amount as a result of influence from media accounts on the ongoing medical malpractice debate. Kravitz said there was no indication "that these people who we chose had a particular bias or even a leaning or that they even were specifically aware of those numbers that were thrown around. I suppose they could have been," she said.

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May 17 2008

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