Harford jury gives $958K in med mal case

A Harford County jury has awarded more than $958,000 to the estate and surviving family members of a woman who died after being given excessive pain medication following surgery at Upper Chesapeake Health Center, where she had gone for treatment of leg ulcers in February 2010.

Doctors at the Bel Air hospital administered morphine, oxycodone and other narcotics to Beverly Gargiulo under the mistaken belief they had permission from her husband and sons to provide hospice-like palliative care rather than to keep striving for a cure, the family’s attorney said Monday.

Gargiulo, 62, died a few days after receiving the narcotics, said attorney Mark T. Mixter.

Her husband and sons said they “had to think about it, talk about it,” when the doctors suggested palliative care, Mixter said.

But the hospital regarded that as consent, in violation of the acceptable standards of medical care that prohibit palliative treatment without a clear statement from the family.

“There was no clear directive given by the family or patient,” Mixter said. “I think it was a lack of clear communication between the hospital and the family that led to this.”

The jury on Wednesday found the hospital negligent and awarded $958,238.05 in damages.

The hospital denies the allegation of negligence and plans to appeal, said its attorney, Joan Cerniglia-Lowensen.

“The verdict was against the weight of the evidence,” added Cerniglia-Lowensen, of Pessin Katz Law P.A. in Towson.

Cerniglia-Lowensen declined to be more specific about issues for appeal, saying appellate papers are still being drafted.

Gargiulo was admitted to Upper Chesapeake on Feb. 12, 2010, with infected bilateral leg ulcers, according to the family’s lawsuit.

On Feb. 17, 2010, doctors debrided the ulcers down to the bone, and five days later they performed a diverting colostomy.

Doctors told the family on Feb. 26 that Gargiulo’s prognosis was bleak and that they should consider palliative care, Mixter said.

The day after that discussion, the doctors administered excessive amounts of pain medication while withdrawing antibiotic treatment, he added. Gargiulo lapsed into a coma and died on March 1, 2010, Mixter said.

The jury deliberated about four-and-a-half hours after a seven-day trial before Judge Christian M. Kahl, a retired Baltimore County judge presiding by designation in Harford County Circuit Court.

The jurors’ medical malpractice and wrongful death award included $50,000 in non-economic and $8,238.05 in economic damages to Gargiulo’s estate.

The jury also awarded $300,000 each in non-economic damages to her widower, Frank Gargiulo Sr., and two adult sons, Frank Gargiulo Jr. and Randy Gargiulo.

The awards do not exceed the state’s cap on non-economic damages in medical malpractice cases, said Mixter, founder of the Law Offices of Mark T. Mixter in Baltimore.

The family initially filed suit in Baltimore City Circuit Court on July 21, 2011. But the hospital successfully moved on April 30, 2012, to have the case heard in Harford County, where Upper Chesapeake is based and where the incidents occurred.

Mixter said he was initially concerned by the move, as juries in Baltimore are generally considered more receptive to plaintiffs than those in Harford County.

“I would have much preferred Baltimore city,” Mixter said. “But it worked out OK.”

FRANK GARGIULO SR. ET AL. V. UPPER CHESAPEAKE HEALTH CENTER

Court:

Harford County Circuit Court

Case No.:

12-C-12-001372

Judge:

Christian M. Kahl

Outcome:

$958,238.05 Verdict

Dates:

Event: March 1, 2010

Suit filed: July 21, 2011 in Baltimore City Circuit Court

Suit moved: April 30, 2012

Suit refiled: May 18, 2012 in Harford County Circuit Court

Trial: July 29, 2012-Aug. 6, 2012

Jury Verdict: Aug. 7, 2012 in Harford County Circuit Court

Plaintiffs’ Attorney:

Mark T. Mixter of the Law Offices of Mark T. Mixter in Baltimore.

Defendants’ Attorney:

Joan Cerniglia-Lowensen of Pessin Katz Law P.A. in Towson.

Counts:

Wrongful death and survival action.