No One Picks up Tab In $18.66 Million Med Mal Case by Jeff Blumenthal

A Philadelphia Common Pleas judge has added $3.66 million in delay damages to a $15 million verdict awarded to a boy who needed a kidney transplant after the cessation of antibiotic therapy to prevent urinary tract infections. But the boy's attorney said his client might not get paid because neither the University of Pennsylvania Hospital nor a Children's Hospital of Philadelphia practice group acknowledges that the defendant doctor is its employee.

Kenneth M. Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C. said after his client, Malcolm Graham, now 14 years old, received a $15 million verdict this past December, he expected payment to come from the defendant's employers' insurance policy. Yet, even after the decision awarding delay damages was handed down last week, payment seems no closer.

Attorneys for Dr. Harold Snyder are appealing the verdict that came from Judge Bernard Goodheart's courtroom. But even if that's resolved, the question of whether Snyder was employed by the clinical practices department of the Hospital of the University of Pennsylvania or by Children's Surgical Associates, a practice group located at CHOP, remains pivotal.

CSA was named as a co-defendant in the case originally but was dismissed from the case at the end of testimony, a decision Rothweiler is appealing. But Rothweiler said tax records clearly show HUP as Snyder's main employer, even though the work done on Graham's medical case was at CHOP.

"My position is that the University of Pennsylvania is the employer," Rothweiler said. "Snyder's paid W2 income comes from Penn. He also received payment from CSA, but not nearly as much as he did from Penn. So now we have a 14-year-old boy who will need a future kidney transplant, and I've got two entities both denying Snyder is their employee. Something's not right about that," Rothweiler said.

A spokesperson for HUP general counsel Mary Ellen Nepps said the hospital is not responsible for Snyder's treatment of the boy because he was not a HUP employee during that period.

Graham was born with a urological defect, a posterial urethral valve, in 1984, Rothweiler said. The defect caused urine reflux through the ureter, resulting in urinary tract infections.

The problem, if treated incorrectly, can lead to kidney damage, Rothweiler said. And that is what happened when Graham, at 8 years old, was taken off antibiotic therapy.

The antibiotic therapy was ceased by Snyder, a pediatric urologist, in 1992 because Graham had been infection-free for eight years. After age 8, the chance of infections is said to decrease.

But Graham did get an infection, along with reflux of urine, and as a result of the incident, he suffered kidney damage that required a transplant, which he finally received in 1997. After suffering the urosepsis infection, he was placed back on antibiotic therapy, Rothweiler said.

Defense lawyers challenged the plaintiff's theory that Snyder was negligent for taking the patient off antibiotics and also said that there was a break in the chain of causation between the treatment decision and the kidney failure.

Defense experts said that Snyder's decision to take the boy off antibiotics was justified because the boy was having no infections and because the urologist was loath to prescribe a life-long course of antibiotic therapy.

Rothweiler used the success of the antibiotic treatment as proof that it should have continued.

Graham lost time at school, was forced for a while to wear a bag into which his urine drained and faces probably two further kidney transplants over the course of his life, Rothweiler said.

"In the end, even if we have to litigate this issue, we'll prevail because we have proof that [Snyder] is an employee of Penn," Rothweiler said. "So I think it's just a matter of time."

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