Cherrylaw.com

By Douglas Herbert, Inquirer Correspondent  – Friday, August 1, 1997

A former dishwasher from Chester was awarded $2.75 million Wednesday by Delaware County jurors, who found that a Philadelphia doctor and hospital were negligent in canceling surgery after the man’s insurer balked at the cost.

The award to Donald Blunt, who used to work at the Bennigan’s res-taurant in King of Prussia, was one of the region’s largest in a medical malpractice suit this year. It came almost seven years to the day after Blunt slipped and fractured a joint in his left foot while mopping down the premises on August 1, 1990.

Two days after the injury, Blunt consulted with Dr. Pekka Mooar, chief of sports medicine at the Medical College of Pennsylvania Hospital, now Allegheny University Hospitals/MCP. In his suit, Blunt alleged that Mooar advised him that he should undergo immediate surgery to prevent a worsening of his condition. But soon after scheduling the surgery, Blunt alleged Mooar abruptly called it off.

The suit contended that Mooar reversed course only after learning that Liberty Mutual Insurance Co., Bennigan’s worker’s compensation carrier, had declined to cover the cost of the surgery.

At Blunt’s three-day trial, Mooar argued through his attorney, Charles B. Burr 2d, that he had never pressed for immediate surgery during the initial consultation. He also disputed Blunt’s contention that Mooar was responsible for a subsequent aggravation of Blunt’scondition, which required him to have two bone fusions by another doctor in 1991.

“Not only was that fracture treated properly, but when the patient continued to complain of pain, we probed to determine what the cause of that pain might be.” Burr said yesterday, noting that his client was considering “all available options” – including an appeal – in the wake of the verdict.

Burr insisted that Blunt had fractured – not dislocated – the LisFrank joint in his left foot. He said this was an important distinction because if effectively placed Blunt’s injury in a category of nonemergency cases in which surgery is an“elective” choice.

“This was a little fleck of bone we’re talking about,” Burr said of the fracture. Blunt’s attorney, Garland D.Cherry, Jr., called a podiatrist and an orthopedic surgeon, who both testified that it was standard to treat an injury of Blunt’s nature with surgery.

Cherry maintained at the trial that Mooar’s failure to operate on his client, or at least refer him to another doctor, amounted to “abandonment.” Had surgery been performed in a timely manner, Cherry told jurors, Blunt would likely have been able to avoid two “salvage procedures,” in February and April 1991. In those cases, an orthopedic surgeon at Thomas Jefferson University Hospital fused several fractured bones using surgical pins.

But Burr countered that such surgery would have been not only impractical but impossible at the time that Blunt first consulted with Mooar.

“Their claim was that he should have immediately gone in and pinned this thing up, but the fact is that there was nothing to pin,” Burr said.

Blunt, who now works as a nurse’s aide, could not be reached for comment.

Yesterday, Cherry sought to portray the verdict as a broadside against callous physicians.

“It sends a pretty strong and clear message to doctors and hospitals that when you have a patient, any patient, whether they’re indigent or not, and you accept them for surgery, you have to proceed with the surgery,” he said.

Burr took aim at the jury’s finding that Mooar had been negligent. He asserted that Blunt, who stopped his visits to Mooar after the cancellation of the surgery, had reneged on his responsibility as a patient.

“He never called, he never returned to the hospital.” he said, referring to Blunt’s “disappearance” after Oct. 10. “It seems to me that if this man was in such pain, how could he have gone around for four months without being treated by anyone?”

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