$3 Million Recovered for Hernia Patient Paralyzed in One Foot After Lovenox Given During Surgery
After trial: The surgeon's estate appealed the $1 million contribution judgment, and the D.C. Court of Appeals affirmed it in 2011.
Rosalee Blue was left with a paralyzed right foot, chronic leg pain and loss of bowel control after the anticoagulant Lovenox was given intravenously during hernia surgery at Sibley Hospital in Washington. The anesthesiologist settled for $2 million on the first day of trial and assigned his contribution claim against the surgeon to her side. The court then entered a $1 million contribution judgment against the surgeon, which the D.C. Court of Appeals affirmed in 2011. Her recovery came to $3 million.
What happened
Rosalee Blue went to Sibley Hospital in Washington, D.C., for an abdominal hernia repair performed by Dr. Ronald Kurstin, with Dr. John Lordan as the anesthesiologist. Blue was obese and at risk of deep venous thrombosis, and an internist had recommended Lovenox, a low molecular weight heparin, as a preventive measure.
The Court of Appeals recounts that Dr. Kurstin directed the anesthesiologist to give the Lovenox during the operation. Under the standard of care it was to be given hours after surgery. The drug went in intravenously right after a spinal block, and it caused bleeding around the spine. Blue was left with paralysis of her right foot, reduced sensation, chronic leg pain and loss of bowel control.
Blue sued both doctors in D.C. Superior Court in 2004 (Case No. 2004 CA 006251). On the first day of trial, Dr. Lordan settled. He agreed to pay Blue $2 million, and the settlement dismissed her claims against both doctors with prejudice.
The agreement was built in an unusual way. It expressly reserved Dr. Lordan's right to seek contribution or indemnification from Dr. Kurstin, the doctor who had directed the Lovenox. A separate letter agreement then had Blue's lawyer, Patrick A. Malone, switch hats and represent Lordan on that claim. Lordan paid no fees or costs, agreed to cooperate, kept no interest in the proceeds, and every dollar recovered went to Blue's counsel for her benefit.
With only the cross-claim left to decide, the judge heard it without a jury. The trial court found Dr. Kurstin liable as a joint tortfeasor and awarded Lordan $1 million from him as a pro rata contribution, half of what Lordan had paid Blue. That brought her total recovery to $3 million, $2 million from the anesthesiologist and $1 million from the surgeon.
Dr. Kurstin later died, and his estate appealed the contribution judgment. On July 21, 2011, the D.C. Court of Appeals affirmed in all respects (No. 07-CV-1221), holding that a settling defendant may assign a reserved contribution claim to the plaintiff, even through a separate document.
Sources
This account is drawn from contemporaneous public reporting and the court record.
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