Parents Win First Verdict Against DuPont in Pediatric Death Cases

A federal jury in Philadelphia has returned a $650,000 verdict for parents who say a cardiac surgeon at A.I. duPont Hospital for Children committed malpractice when he performed experimental surgery on their infant son, causing his death.

The verdict was the first in favor of any plaintiffs in some 20 cases filed against the Delaware hospital and former chief cardiac surgeon William I. Norwood since 2004. Ten of the cases remain pending.

The plaintiffs allege either that Norwood improperly performed experimental surgery on critically ill children without obtaining informed consent from their parents or that he failed to cool the patients' bodies long enough during open-heart surgery to avoid serious, often fatal, postoperative complications.

In this case, Paul and Allison Svindland sued over the death of their son Ian, who underwent open-heart surgery June 25, 2003, when he was just 5 weeks old. He died of kidney failure three weeks later.

His parents alleged that during the surgery Norwood failed to cool Ian's body long enough to protect his organs, ultimately causing his death.

After a six-day trial in the U.S. District Court for the Eastern District of Pennsylvania, the jury decided June 19 that Norwood failed to meet "the standard of care commonly employed by members in good standing of his specialty and profession" in treating Ian and that the breach was the proximate cause of Ian's death.

The jury awarded $300,000 to Ian's estate and $350,000 to his parents as his survivors.

The trial was the second in the Svindlands' case. The first trial ended in a verdict in the defendants' favor. The Svindlands appealed, and the 3rd U.S. Circuit Court of Appeals granted them a new trial, finding that the judge in the first trial had made prejudicial errors.

U.S. District Judge Mary A. McLaughlin was assigned to the suit for the second trial. Just days before trial she refused to recuse herself for a potential conflict of interest because she had once indirectly represented Norwood when she had been corporate counsel for the Children's Hospital of Philadelphia before she became a judge.

On the first day of the retrial Judge McLaughlin declared a mistrial, saying the Svindlands' lead counsel in his opening statement had violated her order against discussing any mortality data. The trial resumed the next day with the picking of a new jury.

The duPont Cases

The 20 cases were filed after it was disclosed in 2004 that the duPont Hospital for Children had fired Norwood, then the chief of its cardiology unit and a world-famous pediatric heart surgeon, after his experimental surgeries to test a new cardiac stent came to light.

The patients in all of the cases were critically ill with severe heart problems, and all but three of the children died shortly after their surgeries.

Nine of the 10 remaining cases are proceeding in federal court, and the other is pending in a Delaware state court. Of the federal suits, one is set to go to trial July 6, one is scheduled for trial in September, one in November and one next January.

In two of the remaining unresolved federal cases, in which the children survived their surgeries, the court dismissed all of the claims but one for medical monitoring. The trial court rulings in those two cases are on appeal.

The duPont defendants have not indicated whether they intend to appeal the verdict for the Svindlands, but it has been their policy to vigorously defend against all the suits.

Of the resolved cases, one was settled in 2006 for a confidential amount, another ended in a defense verdict in 2007 and several have been dismissed over the last two years on statute-of-limitations grounds. All previous appeals except the Svindlands' bid for a retrial were decided in the defendants' favor.

The same attorneys have represented the parents in all 20 lawsuits, and they have said they intend to present the same expert testimony in the remaining cases.

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