Medical-malpractice award sets state record

By Barbara Tomovick

With a family history of breast cancer, Bonnie Welteroth had always been diligent about getting checkups. Tragically, those she trusted with her life weren't so careful, and the Macungie, Pa., woman and her husband recently won a record jury verdict in a lawsuit claiming negligence.

On Oct. 1, Lehigh County jurors awarded the couple $33.1 million in compensatory damages after hearing testimony about the mishandling of Welteroth's February 1995 mammogram results. It is the largest medical-malpractice jury award ever in Pennsylvania, the couple's attorney, Thomas R. Kline of Philadelphia, said in an interview with The Frankenfeld Report.

See a profile of Kline elsewhere in this newsletter.

Because of an administrative blunder, Welteroth was informed she was healthy when in fact she had a malignant tumor. Eight months later when she detected the lump herself, the disease had spread and her chance for a cure was gone. Despite treatment she is expected to die within a year.

Welteroth, 48, and her husband of 30 years, Scott, 49, claimed only $1.1 million in economic damages when the case went to trial. By then Welteroth's medical bills totaled $247,685. A certified lifecare planner, B.A. McGettigan of Chester Springs, Pa., projected $241,914 in future annual and one-time medical costs, bringing total medical expenses to $489,599.

The jury allowed all those costs plus approximately $600,00 for Welteroth's future lost wages, benefits and household services. That figure came from a report by David L. Hopkins, an actuarial-economic consultant in West Conshohoken, Pa.

Assuming death within a year, Hopkins figured lost productivity at between $462,378 and $747,883, depending on whether Welteroth would have retired at age 60, 65 or 70. Hopkins used the total-offset method, which assumes interest on a lump-sum payment offsets inflationary increases, then allowed for a 2.5 percent increase in productivity as a result of advances in technology, streamlined work methods and further training. Kline urged jurors to compensate Welteroth for increased productivity until age 65, and they apparently agreed.

But in addition to the full $1.1 million in economic damages, the panel of eight men and four women decided she deserved $27 million for pain and suffering, disfigurement, embarrassment and humiliation, and loss of life's pleasures. They determined Scott Welteroth should get $5 million for loss of consortium.

Such a large verdict wouldn't be too surprising in Philadelphia but is almost unheard of in the area's outlying counties, said Hopkins, who since 1981 has worked on and testified in thousands of cases in numerous states.

Kline said he believes the jury understood that Welteroth was the innocent victim of others' collective mistakes.

Welteroth's doctor, Gene Miller of Wescosville OB/GYN Associates Inc., testified at trial that he never received Welteroth's report from the technician who X-rayed her for Spectrascan Imaging Services Inc. of Windsor, Conn., the nation's largest provider of mammograms performed in doctors' offices. Yet Miller also admitted that his own office filing procedures were deficient.

Spectrascan, on the other hand, blamed Miller and even Welteroth herself for failing to read her copy of the report properly and seek further treatment.

That may help explain why the jury assigned 83 percent of the liability to Spectrascan and the remaining 17 percent to Miller and Wescosville OB/GYN.

"The jury clearly was determined to tell Spectrascan that its practices were not proper," said Kline.

The company's conduct was not outrageous and reckless, however, Judge Robert L. Steinberg determined in denying the Welteroths' motion to seek punitive damages.

Nevertheless, said Kline, the jury recognized that Welteroth's last years will amount to "a living nightmare."

"I think that the verdict was in line with the horror of the tragedy in this case," he said.

No appeal was filed.

Contact Thomas R. Kline at:
Kline & Specter, P.C.
1525 Locust St. - The Nineteenth Floor
Philadelphia, Pa. 19102
Phone: (215) 772-1000, Fax: (215) 772-1359
E-mail: Kline_Specter@msn.com

Contact David L. Hopkins at:
David L. Hopkins, ASA
15 Union Hill Rd. West
Conshohoken, Pa. 19428
Phone: (610) 940-6992, Fax: (610) 940-6998