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Jury ties doctors’ errors to boy’s death

Children’s specialists face huge damages

By Jonathan Saltzman and Liz Kowalczyk
Globe Staff / December 19, 2009

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A Suffolk County jury yesterday found that two doctors at Children’s Hospital Boston - one of them the hospital’s former physician in chief - had caused the death of a 3-year-old Pennsylvania boy and voted to award his parents $15 million in damages.

The actual damage award will be less because of an agreement reached by the parties before the verdict. But legal specialists said the amount voted by the jury was unusually large for a medical malpractice case involving a death. Awards of that size are more common in cases in which a patient is severely injured as a result of malpractice and requires years of costly treatment, they said.

After deliberating four days, the Superior Court jury found that Dr. James Lock, until last year the physician in chief, and Dr. James A. DiNardo, an anesthesiologist, caused the death of Jason Fox, said the child’s father, Brian Fox, of suburban Philadelphia.

The boy died in December 2004, a year and a half after undergoing a procedure at the hospital for a birth defect.

Fox said he and his wife, Andrea, believe doctors lied about their actions when treating Jason.

“The only protection individuals have when you go up against powerful Harvard, top-ranked physicians is the jury system, and that worked,’’ said Fox in a phone interview.

Jason went into Children’s “a playful and active little boy,’’ he said. “When he came out of the hospital, he was flown by air ambulance to a neurological rehabilitation facility near where we lived.’’

But William J. Dailey Jr., the Boston lawyer for Lock and DiNardo and two other doctors who were found negligent but not responsible for the death, said he was stunned by the verdict.

He said Jason had undergone eight unsuccessful procedures before his parents took him to Children’s in a desperate effort to save his life.

“He had as severe an underlying congenital heart disease as you could have,’’ Dailey said. “If something could have been done in Boston, it would have been extraordinary.’’

In an e-mail to Children’s staff about the verdict, Dr. James Mandell, chief executive of the hospital, wrote: “We are surprised and disappointed in this finding. We are confident that our clinicians provided outstanding care to this very sick child.’’

Michelle Davis, a hospital spokeswoman, said that the doctors will not appeal and that Lock’s stepping down as physician in chief was unrelated to the case.

“There is no doubt that he is an extremely important leader and continues to be an extremely important leader at Children’s Hospital Boston,’’ she said. “We have no doubts about his ability or his leadership.’’

Jason was born in July 2001 with Tetralogy of Fallot, a complex but usually treatable birth defect that affects the flow of blood through the heart. In his case, the defect was particularly serious and prevented his blood from carrying enough oxygen to his organs and limbs.

During the first two years of his life, Jason underwent open heart surgery and had seven cardiac catheterizations at Children’s Hospital of Philadelphia to try to widen the arteries that carry blood to his lungs.

Doctors in Philadelphia referred Jason to Lock, who pioneered the use of catheterization to repair cardiac birth defects. Lock agreed to try to widen more of the boy’s pulmonary arteries.

Hours after the child’s second catheterization, on April 18, 2003, Jason suffered a seizure. A CAT scan showed that contrast dye, which is injected during the procedure so doctors can better see the patient’s anatomy, had leaked into his brain.

After his seizure, Jason was transferred to the cardiac ICU and was given two MRIs to gauge the extent of his brain damage.

During the first MRI, doctors discovered a tiny piece of metal lodged in the boy’s brain, probably from a medical instrument, although it is uncertain whether it broke off during a procedure at Children’s or a previous procedure at another hospital.

At one point during the MRI, his heart rate plummeted, and doctors had to resuscitate him.

When he left the hospital, he was unable to walk or speak.

Brian Fox said the jury awarded damages of $5 million for his son’s pain and suffering, $5 million for Jason’s parents’ loss of their child, and $5 million for Jason’s wrongful death.

Andrew C. Meyer Jr., a prominent Boston medical malpractice lawyer who represents plaintiffs, said the $15 million was unusually large, given that the alleged malpractice did not lead to years of costly ongoing medical care.

However, the Foxes will not receive $15 million. Dailey said the defendants in the case agreed during jury deliberations to guarantee plaintiffs a minimum amount of damages, regardless of the verdict, in exchange for a cap on possible damages. Dailey declined to specify what the cap was.

Brian Fox’s trial lawyer, James Fox, a cousin who practices in California, would not confirm that such an agreement was reached.

The Board of Registration in Medicine is still investigating Lock and one of the physicians who was found negligent, Dr. Peter Laussen, who directed the cardiac intensive care unit, a board spokesman said yesterday.

The board reopened the investigation last year after learning that the hospital may not have provided complete information about the treatment the doctors gave Jason.

Brian Fox said yesterday that the board initiated an investigation this summer into DiNardo’s actions, as well.

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