$2.5 Million Verdict for Failure to Diagnose Spinal Fracture

A Bucks County jury has awarded just over $2.5 million to a man whose family physicians allegedly failed to detect a spinal fracture in the weeks after he was injured in a car wreck.

According to court papers in Baxevane v. Lawless, Nicholas Baxevane, who was 45 at the time of the October 1997 accident, claims he can no longer work as a result of the spinal curvature that was able to form during the 10 weeks his fracture allegedly went undiagnosed by physicians John Lawless and Joseph Kipp.

Baxevane’s attorney, Mark W. Tanner of Feldman Shepherd Wohlgelernter & Tanner in Philadelphia, said that during voir dire, many of the potential jurors – including five who eventually sat on the 12-member panel – expressed support for some form of caps on awards in medical malpractice cases.

“We were told from the get-go in this case that we couldn’t win, because it was in Bucks County,” said Tanner, who tried the case with Daniel Mann.

Defense attorney Lynne Nahmani of Marshall Dennehey Warner Coleman & Goggin’s Cherry Hill, N.J., office did not immediately respond to calls seeking comment.

The jury voted 11-1 to attribute 65 percent causal negligence to Lawless and 35 percent to Kipp, Tanner said. The award consisted of $1.5 million in non-economic damages, $420,000 in past lost earnings and $603,000 in future lost earnings.

According to data collected by the Pennsylvania Supreme Court, of the 36 medical malpractice jury verdicts returned in Bucks County Common Pleas Court between January 2000 and July 2003, 33 were for the defense and none involved awards of more than $1 million.

Officials from the Bucks court Prothonotary’s Office said that similar data from 2004 and the latter half of 2003 have not yet been compiled.

The emergency room doctor who treated Baxevane after the accident ordered X-rays and CT scans of Baxevane’s head and body and told Baxevane to follow up with his family physician, according to his pretrial memorandum. The next day, Baxevane consulted with Lawless and Kipp and informed them of pain in his upper back. They ordered a bone scan of his upper spine, which was performed several days later.

Baxevane asserted in court papers that although that bone scan indicated a possible fracture, the defendants did not respond accordingly. The problem allegedly went unrecognized until the end of 1997, when CT scans and subsequent MRIs confirmed the fracture’s presence.

Baxevane further claimed in his pretrial memorandum that because of the 10-week delay, the injured area of his spine had repaired itself into a deformed position, causing him to be unable keep his head upright for sustained periods of time. Surgery is no longer an option, according to Baxevane, because the bone has already fused into its current, abnormal position.

In his pretrial memorandum, Baxevane put forward a demand of $950,000. Tanner said that the defense did not respond with an offer.

The jury was picked Dec. 7, and returned with its verdict Tuesday after approximately four-and-a-half hours deliberation, Tanner said. Judge Mitchell S. Goldberg presided at trial.

Tanner said that as the case was originally filed in 1999, he is filing for delay damages that amount to roughly 30 percent of the jury’s award.

Experts for Baxevane, according to Tanner, included Maris Ramsay, a family physician from Orlando, Fla.; orthopedic surgeon Robert Dunn of the Princeton Medical Center in Princeton, N.J.; and Baxevane’s treating neurosurgeon, Gregory Przybylski, of the JFK Medical Center in Edison, N.J.

Tanner said that as both his client and the defendants were from Bucks County, there was no question that the case would be tried in that county’s court system.

“I think what [the verdict] demonstrates is that, when asked about this issue in the abstract, it’s sort of easy for people to say arbitrarily that there should be some kind of limit on damages in medical malpractice cases,” Tanner said. “But when faced with actual evidence . . . they think about it a lot differently.”