Family wins malpractice verdict

March 10, 1994|By David Michael Ettlin | David Michael Ettlin,Sun Staff Writer

The family of a man who died of anesthesia complications after skin cancer surgery on the tip of his nose has been awarded nearly $750,000 in a malpractice case -- despite his failure to inform medical personnel of an earlier hospitalization for serious lung problems.

The patient was John E. Winkler Jr., 78, a retired sugar refinery worker from Glen Burnie. He died at Johns Hopkins Hospital Jan. 2, 1991, nearly three weeks after what was to have been outpatient surgery to remove a cancerous lesion less than a half-inch in size.

"When you see the pimple on the end of his nose -- it's outrageous that a man died for that," said attorney Marvin Ellin, who represented Mr. Winkler's estate and widow in winning a jury verdict Monday against the hospital and a German anesthesiologist who was teaching and practicing there at the time.

Much of the testimony focused on the mutual choice by Towson surgeon Darrell A. Jaques and anesthesiologist Balthasar Eberle, with the consent of Mr. Winkler, to use a general anesthetic putting him to sleep rather than injecting a local painkiller for the approximately two-hour procedure.

"The verdict in the hospital's opinion was the result of the jury substitution of its judgment on the appropriate type of anesthesia for that of the doctors who were making the decision at the time," Hopkins spokeswoman Joann Rodgers said, "and the sympathy all of us felt for the Winklers' loss presumably played a part in that decision despite the court's instructions to the jury that it be disregarded."

Ms. Rodgers said hospital lawyers planned to file motions asking Baltimore Circuit Judge Hilary D. Caplan to set aside the jury's verdict, based on what they contended to be a lack of evidence. If that fails, the spokeswoman said, Hopkins would consider an appeal.

"The complication that Mr. Winkler suffered could not have been predicted in our opinion based on the information he provided and the testing and exams that were done," she said. "Indeed, none of the witnesses criticized the quality of the care provided by the anesthesiologist during surgery."

Judge Caplan dismissed the Winklers' case against Dr. Michael E. Rhodes, the resident who administered anesthesia to Mr. Winker under Dr. Eberle's supervision.

The jury did not find any malpractice by the surgeon, Dr. Jaques.

Mr. Winkler's left lung had been damaged in 1928 by what was likely tuberculosis and an infectious condition requiring surgery.

While he provided information on that condition and several other operations, the patient failed to mention his 1980 stay at South Baltimore General Hospital in which he was coughing up blood.

X-rays taken at Hopkins Dec. 12, 1990, during evaluation procedures the day before nose surgery, showed he had damaged lungs, but Mr. Winkler was classified as a suitable -- if not perfect -- candidate for general anesthesia.

Problems arose soon after he was put to sleep, but before the surgical incision, when Mr. Winkler had respiratory secretions that the anesthesia team removed by suction.

When the operation had ended, the doctors awakened Mr. Winkler to see if he was capable of lifting his head to cough or spit, and then removed the respiratory tube from his throat. But just after he was moved to a stretcher, the patient suffered cyanosis -- turned blue -- from an apparent breathing problem.

Instead of going home as planned, Mr. Winkler was moved to intensive care and ultimately died from complications of what the state medical examiner's office found in an autopsy to be aspiration pneumonia. Doctors said the pneumonia may have been caused by fluid passing from Mr. Winkler's most damaged lung into the right lung, which had calcification associated with aging.

Dr. Angelo DaSilva, a pulmonary specialist and associate professor of medicine at George Washington University testifying for the Winklers, said that complications "were foreseeable because the patient had basically only one lung. That lung probably was not even entirely normal."

The skin cancer "was not threatening his life," he said. "I think what happened here, everybody focused on the patient's nose and they overlooked the entire patient with all his medical problems, and that's why he died."

After a two-week trial, the jury deliberated about an hour and half before awarding $500,000 to Geneviene S. Winkler, the patient's wife of 46 years, and $245,967 to the estate whose personal representative is the couple's son, John E. Winkler of Catonsville.

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