Anesthesia Wrongful Death Case Appealing a Previous Award for Punitive Damages*

This is an appeal of a lower court’s decision to let stand a jury verdict which the Defendant thought to be excessive, especially in light of the facts of the case. In the appeal the Defendant attempted to convince the appellate court to substantially reduce the jury’s verdict of 5 million dollars in an anesthesia wrongful death case.

Statement of Facts...

On July 13th, 2010, John Cymbalt voluntarily entered a medical clinic to undergo a cosmetic liposuction procedure. At the time, he was 31 years old and in excellent health. He was driven to the clinic by his wife, Mary Cymbalt Bowen. From the evidence presented at trial in the lower court, Cymbalt decided to have his procedure performed at Laroche Medical Associates because their fees were about a third less than any of the other clinics he had checked.

Cymbalt’s procedure was scheduled for 7:00 a.m. He and his wife Mary arrived about 15 minutes earlier at 6:45. Soon thereafter, Cymbalt was prepped for the procedure. Bowen was permitted to stay in the operating room while Cymbalt was being prepped. The woman doing the prepping was the same woman who had greeted them earlier in the reception area.

Bowen would later testify during the anesthesia wrongful death trial that she thought it was strange that the same woman who greeted them earlier was doing the prepping. Bowen said the woman was wearing what appeared to be a nurse’s white uniform. Bowen recalls asking the woman if she was the nurse. The woman said she was.

Bowen also testified that the woman who identified herself as the nurse told her the anesthesiologist would be in shortly to explain the procedure and to answer any questions.

After waiting for about 30 minutes the nurse came back in and said they were ready to begin the procedure. With that Bowen was asked to leave the room. Bowen said she remembered wishing her husband good luck and then kissing him on his forehead. As she was about to leave the room Cymbalt called to her and gave her the “thumbs up” sign. That was the last time Bowen saw Cymbalt alive.

During the anesthesia wrongful death trial the evidence showed that the woman claiming to be a nurse was not; she was the receptionist for the clinic. She sometimes “helped out” when the regular nurse called in sick or had the day off.

Further evidence showed the anesthesiologist never discussed the procedure with her nor, she speculated, with her husband. She testified neither the anesthesiologist nor anyone else reviewed with her a Medical Consent Form as required by state law. As a result Cymbalt never signed the Form.

The anesthesiologist involved in the procedure worked part-time at the clinic. Although she worked independently at the clinic, evidence at the trial showed her medical license was restricted, and as such she was not permitted to administer without appropriate supervision from a fully certified anesthesiologist.

The anesthesiologist had not been scheduled to work the day of the procedure. The testimony showed at about 5:30 a.m. on the day of the procedure the anesthesiologist was called by the doctor who had been scheduled to perform the procedure. He told her he wouldn’t be able to make it in and asked her if she would fill in for him.

Further evidence showed although there was no evidence the anesthesiologist was intoxicated, she did admit on cross-examination she had been out the night before with friends and had consumed 4 or 5 glasses of wine.

During the procedure Cymbalt’s blood pressure and heart rate dropped dramatically. It was later determined the anesthesiologist had given Cymbalt more anesthesia than was appropriate for his age and weight.

Normally, in a situation where the patient's blood pressure and heart rate were dropping, the medical staff would use an instrument called a Laryngoscope to insert a tube into the patient's airway. This tube would prevent the airway from being blocked if the unconscious patient vomited.

Unfortunately, the clinic didn’t have a Laryngoscope in the operating room. Cymbalt’s blood pressure and pulse continued to drop dramatically. Suddenly Cymbalt began to vomit. Although the anesthesiologist tried valiantly to clear the vomitus, too much of it had already gone down Cymbalt’s airway. Cymbalt died on the table. The official cause of death was later determined by the coroner to be “Death by Asphyxiation”.

A wrongful death trial by its very nature can be very emotional to those in attendance. This anesthesia wrongful death case was no different. Many of the jurors appeared visibly upset at the trial. The tearful testimony of Bowen and Cymbalt’s other close family and friends portrayed him as a good husband and father of three children.

After deliberating for 4 hours, the jury returned a verdict of $5 million. Laroche appealed.

The Appeal...

Although the facts were not in dispute, Laroche appealed on several grounds. He argued it would have been impossible for the jury to have reviewed even a small percentage of the evidence in such a short amount of time. He further claimed that their verdict was based on emotion and retribution, and as such was unjust.

He submitted to the Court numerous state and federal cases from over the last 10 years in which men of similar age who had died in hospitals or clinics as a result of medical negligence received settlements or jury verdicts of anywhere from $800,000 to $3 million.

Laroche argued that jury verdicts were supposed to be based on “properly admitted evidence,” and when a trial court judge allows evidence which should be excluded, the court in effect “panders” to the jury’s emotions. Doing so can often result in jury verdicts based on “retribution” rather than on the evidence before them.

Larcoche also argued the trial court erred when, over Laroche’s repeated objections the trial judge continued to permit one witness after another to testify about facts not in evidence. The judge, he argued, permitted the Plaintiff to “bolster” its anesthesia wrongful death case by “inflaming” the jury’s emotions.

Outcome...

After hearing the arguments of counsel and reviewing the memoranda and briefs of law submitted by both sides the Court found as follows:

Although the unnecessary death of any individual diminishes us all, the trial court’s decision to allow bolstered testimony during the trial phase of the proceedings was an error. 

Jury verdicts are supposed to be rendered upon a review of the admitted evidence. Although the intervention of an appellate court is necessary in some cases, it is always with great reluctance do we invade the province of the jury. The jury system in our country must be respected at all times. 

There are those times though, when a jury fails to perform its sacred duty properly. In the case before us we find difficulty in assessing blame on this jury. They heard the evidence the trial court judge allowed in and rendered their verdict accordingly. We do though find the trial court erred in permitting the Plaintiff to bolster her anesthesia wrongful death case by inflaming the jury’s emotions. 

We take into account the very short amount of time it took the jury to reach their verdict. We believed they could not have reviewed all of the evidence before them in just 4 hours. 

We find in this case the trial court erred, and that the jury verdict therefore, was excessive. We thereby reduce the verdict to $2.5 million.