Morgan v. Penhos, 02 CV 0532

Plaintiff: Chad M. Tuschman and Peter O. De Clark, Williams Jilek Lafferty Gallagher & Scott, Toledo

Defense: Paul A. Dzenitis and Jennifer L. Myers, Buckingham Doolittle & Burroughs, Cleveland

Verdict: $850,000 for plaintiff

Court: Seneca, Kelbley, 2-25-04

On 7-1-02, Heidi Morgan, then age 32, was taken to the ER at Tiffin Mercy Hospital with complaints of abdominal pain and vomiting. A surgeon, Dr. J.C. Penhos, was brought in for a consult. An appendicitis was suspected. Penhos promptly commenced a laparascopic appendectomy. It didn’t go well.

During the procedure and while inserting a second trocar, Penhos lacerated Morgan’s left external iliac vein. A serious condition, Penhos promptly converted to an open procedure. Instead of calling in a vascular surgery consult, Penhos elected to repair the injury himself -- it was the first time he had attempted this procedure. He utilized a large suture.

That suture ultimately constricted the vein and Morgan’s condition only got worse. A blood clot and deep vein thrombosis developed in her leg. Her admitting physician identified the problem and contacted a vascular surgeon in Toledo, Paul Clark. Morgan was promptly transferred to St. Vincent Mercy Hospital where a complex repair surgery was performed.

Morgan later underwent two repair procedures, incurring medical bills of over $111,000. Her proof developed that she is at risk for future venous complications. More acutely, the once active Morgan can no longer work out at the YMCA. She is also impaired from her vocation as an LPN.

It was Morgan’s allegation in this lawsuit that Penros departed from the standard of care in several regards. The comedy of errors began with the initial injury to the vein, the doctor exerting too much force. Having butchered Morgan, he further erred in attempting a repair that exceeded his abilities.

Plaintiff noted that a vascular surgeon was present at Tiffin Mercy and could have easily intervened. Then to the ill-fated repair, Penhos’ use of large sutures complicated the matter -- he should have instead used smaller sutures. In this regard, Penros explained that (1) no vascular consult was available and (2) he only had access to large sutures. He was contradicted both these regards by a nurse supervisor at Tiffin. Experts for Morgan were Clark as noted above and Dr. Leonard Mileweski, Philadelphia, PA.

Penros defended the case and called the initial injury a surgical complication -- he further denied any deviation regarding his attempt at repair, promptly commencing an open repair and then sending her to Toledo when an apparent edema developed. His experts were Dr. William Cheadle, Surgery, Louisville, KY and Dr. Thomas Klamer, Vascular Surgery, Louisville, KY.

The general verdict in Tiffin was for Morgan, the jury awarding her $850,000. A consistent judgment followed. Before a stay was entered, Morgan had sought to collect the judgment via garnishment.

Each party has pending motions. Morgan has sought pre-judgment interest predicated on defendant’s failure to make an offer before trial. In evincing bad faith, she noted that Penhos exercised a consent-to-settle clause not only to not make a settlement offer but to prohibit settlement negotiations. Before trial, Morgan demanded $500,000; Penhos, of course, offered nothing. Penhos has responded and explained that before trial, as plaintiff’s liability theories were shifting, it was difficult to stake out a liability position.

Penhos for his part has filed a lengthy JNOV motion. It has argued a double-shock Batson challenge, Morgan illegally seeking to stack the jury (1) with women and (2) to strike a Hispanic juror because Penros is Argentinean. When reviewed by JVO, Morgan had not replied to the motion.