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Wrongful death surgery “blame game” results in verdict of over $8.75M

Gentry Locke for the Plaintiff

Fairfax County Circuit Court

Karen Ebersole was 55 years old when a right middle cerebral artery bifurcation aneurysm was incidentally found on MRI.  She was a candidate for both neurosurgical and neuro-endovascular intervention.  She ultimately chose to pursue a neuro-endovascular “coiling” procedure to be performed by Dr. Richard Pergolizzi.  Ironically, Dr. Pergolizzi was one of the partners at Fairfax Radiological Consultants, Ms. Ebersole’s long-time employer.  The procedure was performed on May 6, 2013 under general anesthesia.  The paralytic drug rocuronium was used for paralysis at the beginning of the procedure to facilitate intubation.  The plan was to place coils inside the aneurysm and use a balloon catheter as a scaffolding to prevent the coils from falling out of the aneurysm while they were being placed.

Up until 2:23pm everything went as expected.  However, at approximately 2:27pm, Karen “moved” on the table.  At 2:29pm, angiography revealed a massive MCA laceration outside of the aneurysm (not in the aneurysm).

Each of the two defendants in this matter, the surgeon and the anesthesiologist, blamed each other for Karen moving and for causing Karen’s death.

Dr. Richard Pergolizzi, the interventional neuroradiologist, testified that Karen “bucked and jerked, lifting her head at least 6-8 inches off the table.”  He told his partner  (who was observing the procedure) that Karen was “light on anesthesia.”  As evidence, he pointed to the fact that Dr. Nguyen (anesthesiologist) re-dosed the paralytic drug rocuronium immediately after the alleged bucking and jerking.  After the procedure, Pergolizzi told the family that Karen was “light on anesthesia” and that this caused his balloon catheter to ram forward through the MCA distal to the aneurysm, causing a massive laceration.

Dr. Dung Nguyen, the anesthesiologist, testified that Karen’s head was tightly taped to the table and could not have moved.  He testified “that head never moved one millimeter”, and “no one touched that head” (to re-tape it after she moved), and that Dr. Pergolizzi’s story was “fiction.”   He also testified that during the procedure after the MCA injury, he called his risk manager, Dr. Steven Lussos, to ask what he should do.  Dr. Lussos came to the cath lab and took a picture on his cell phone of Karen lying on the table during the procedure.  This photo showed that her head was “pristine,” and properly/tightly taped to the table such that it could not have moved 6-8 inches off the table.  After the procedure, Dr. Nguyen refused to ever work with Dr. Pergolizzi again.

Gentry Locke attorneys called every witness who was in the room during the procedure.  No one saw the alleged “bucking and jerking lifting her head at least 6-8 inches off the table.”  Everyone saw some minor movement of the legs.  Several witnesses testified that immediately prior to the movement of the legs, Dr. Pergolizzi was “test inflating” the balloon inside of Karen’s head.  Though he denied this, we had objective radiographic evidence showing that he had, in fact, done so.

It turned out that this was a brand new balloon that inflated/deflated differently than other balloons. This was Dr. Pergolizzi’s first time using this balloon on a human being, and it was brought to the cath lab by a Stryker product representative (who was present for the procedure but mysteriously vanished when it came time for depositions).

In his case, Dr. Nguyen called two anesthesiologists who testified that no one else saw what Dr. Pergolizzi claimed, and that “you would have to be blind, deaf, and an idiot to not see the patient buck and jerk 2-3 times lifting her head 6-8 inches off the table.”  They also testified that Dr. Pergolizzi’s story was scientifically unsupportable.

Dr. Nguyen also called interventional neuroradiologist Dr. Mary Jensen who ultimately conceded that Karen’s death was the result of overinflation of the balloon by Dr. Pergolizzi, and that Dr. Pergolizzi used the balloon contrary to the manufacturer’s clear warnings and instructions.

The jury deliberated for about 6 hours.  The jury awarded $3.37M to each of her adult children, plus medical expenses, funeral expenses, and interest from the date of death.  This amounted to $7,000,779.83 pre-interest, or roughly $8,767,776.66 with interest. Post-trial motions are pending.

Status of the case:

Verdict for our clients in excess of $8.75M.

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