South Florida medical malpractice cases difficult for both sides

By Patty Pensa

It’s been nine years since Rita Wax’s son died on the operating room table, yet the lawsuit alleging malpractice continues.

Wax hasn’t lost any resolve. She’s as convinced as she was on Day 1: Gary Wax shouldn’t have died. At age 37, he was healthy and the procedure, a hernia repair, was simple.

“I was devastated,” said Rita Wax, 72, of Boca Raton. “I really still haven’t recovered. It’s something that will never go away.”

Medical malpractice cases can drag on for years, exacting an emotional toll on both plaintiff and defendant. No matter the outcome, attorneys say, neither side really feels like the winner. About three-fourths of cases that go to trial end in the doctor’s favor. Still, lawsuits are costly and physicians blame their patients’ propensity to sue for changing how they practice.

Total payouts from malpractice claims have fluctuated in the past three years, according to data from the state Office of Insurance Regulation. In 2006, insurers paid about $600 million.

The anesthesiologist in the Wax case, Dr. Peter Warheit, was part of the surgical team for popular cheerleader Stephanie Kuleba. Since the 18-year-old died after surgery in a Boca Raton doctor’s office, lawyers have lined up on both sides. A lawsuit is likely, according to the family’s attorney, though he is awaiting autopsy results to confirm the cause of death.

Doctors diagnosed Kuleba, 18, with malignant hyperthermia, a rare genetic disease triggered by anesthesia. Kuleba’s reaction occurred more than an hour into corrective breast surgery on March 21.

Like the Wax family, the Kulebas never imagined their daughter wouldn’t make it out of surgery. They say Warheit and plastic surgeon Dr. Steven Schuster were ill-prepared to save her and their attorney questioned how much antidote was available and given.

Attorneys for Kuleba’s plastic surgeon and anesthesiologist declined to discuss some specifics of the case, though they said the doctors took appropriate action. Bad outcomes, deaths or injuries do not equate with wrongdoing by a doctor, attorneys and physicians say.

“What needs to come out is whether or not there was negligence,” said Dr. Jeff Jacobs, staff anesthesiologist at Cleveland Clinic in Weston and a member of the American Society of Anesthesiologists. “These aren’t fly-by-night doctors. I can guarantee that both of them lost tons of sleep over this, not about being sued but because of what happened to this poor girl.”

Many times, families file lawsuits simply because they want to know what happened, said Lindsey Chepke, researcher at Duke University and co-author of the book Medical Malpractice. Medical records become available in the process, providing valuable insight.

Most cases, though, are dropped early because the death or bad outcome couldn’t be pinned on the doctor. Of those that go to trial, 27 percent to 29 percent nationwide result in a verdict against the doctors. Those numbers, Chepke argued, suggest the courts are weeding out frivolous lawsuits, contrary to doctors’ claims.

In response to a flurry of medical malpractice cases, the Florida Legislature in 2003 capped “pain-and-suffering” damages at $150,000 for emergency room patients and $500,000 for all others. When patients die, plaintiffs can get $1 million to $1.5 million, depending on the case.

Since then, one-third fewer cases have been filed, several insurance companies have returned to Florida and premiums have dropped. Chepke, though, says reforms often are a tug of war among trial lawyers, medical groups and insurers. They ignore patient safety, which should be the focus.

Medical malpractice cases can wind through the legal system, sometimes gaining new life in appeals even after settlements with doctors involved. On average, the life span of a malpractice case is three to five years.

In 2004, five years after Gary Wax died, a jury decided his doctors were not negligent. The family appealed the decision, and Warheit’s insurance settled for $500,000. Warheit’s attorney on the case, Dennis Vandenberg of West Palm Beach, declined to comment.

Dr. Robert Topper, the surgeon, had barely begun the operation when Wax went into cardiac arrest. He could not be resuscitated after 45 minutes, according to court documents.

Topper’s attorney, Jonathon Lynn, of Fort Lauderdale, said the surgeon’s insurance company decided to settle last year for $40,000 for what it considered a “nuisance lawsuit.” The company had left the state and no longer wanted to pay for litigation, which can cost more than $100,000.

The Wax lawsuit continues against West Boca Medical Center, where the surgery was under way. The next hearing is scheduled for August.

Even when a case ends, it lingers with doctors: They see their reputations tarnished, their decisions dissected and they begin to practice defensive medicine, seeing patients as potential plaintiffs.

For the families, medical malpractice cases are the most difficult, said Gary Cohen, a Boca Raton plaintiff’s attorney who specializes in these lawsuits.

“I’ve had $300 million in settlements over my career,” said the 28-year trial lawyer, “but I never see anyone walk out happy. They feel they’ve stood up and gotten justice but they’re very rarely happy. If they lose, they’re no more devastated than when they win.”

In the Kuleba case, the family’s attorney, Roberto Stanziale, of Fort Lauderdale, said medical records show the West Boca High School senior received only two vials of the antidote drug dantrolene. At 140 pounds, she needed seven vials, he said.

Ice saline should have been given through an IV and the anesthesia should have been stopped, said Stanziale. Stephanie Kuleba’s parents, overcome with grief and anger, say their daughter would have survived if her surgery were in a different setting. Her father, Tom Kuleba, though, said a lawsuit is not the family’s first priority.

“What are they going to do to train people to make sure this doesn’t happen?” he asked.

Patty Pensa can be reached at or 561-243-6609.

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