Jones v. Berry; Kadlec Medical Center

Result – $8,500,000
Medical Malpractice / Anesthesia Error

Kim Jones was a vibrant 30-year-old woman, who came to Kadlec Medical Center for the labor and delivery of her third child, KaeDence who was born at 6:05 a.m. on November 12, 2002. Kim and her life partner, Christopher Mirisciotta, had previously decided that three children was enough for their family, so Kim consented to a tubal ligation which was scheduled for the afternoon of November 12, 2002.

Kim Jones was taken to the operating room at Kadlec for the tubal ligation at 2:56 p.m. on November 12, 2002. Her anesthesiologist was Dr. Robert Lee Berry, who determined that she would undergo general anesthesia. The tubal ligation surgery itself lasted 10 minutes, from 3:24 p.m. to 3:34 p.m., and was uneventful.

Following the surgery, Dr. Berry then prematurely extubated Kim (took out her breathing tube) while she was still paralyzed and stopped ventilating her with oxygen. He left her unmonitored, without the ability to breathe on her own, and without assisting her with supplemental oxygen. In the process of readying her for the recovery room, a nurse noticed that Kim’s fingernail beds were blue and that she was not breathing and was without a pulse. The nurse suggested that a CODE be called, but Dr. Berry declined, delaying further while he reconnected Kim’s monitoring equipment before he agreed that other personnel should be summoned to resuscitate Kim. A CODE was called at 3:41 p.m. and CPR was initiated with Dr. Berry leading the resuscitation. Though they did regain a normal heart rhythm after 8-10 minutes, Kim never regained consciousness, and required mechanical ventilation. She was transferred to Harborview Medical Center by airlift the next morning on November 13, 2002, where she was diagnosed with a severe anoxic brain injury.

After filing this lawsuit, lawyers for the Jones and Mirisciotta families learned that Dr. Berry was diverting (stealing) narcotic medications, mainly Demerol, from his patients at Kadlec Medical Center, including from Kim Jones, for his own personal use. Hospital administrators confronted Dr. Berry on November 14, 2002, two days after Kim’s injury, about diversion and misuse of narcotics and he signed a confession stating that he had in fact, been diverting Demerol from patients for his own use. He was escorted out of the hospital, entered a drug treatment center and has not returned to the practice of medicine. In fact, Dr. Berry testified at his deposition and took the 5th Amendment 30 times, refusing to answer questions under oath about his drug diversion and drug use. Dr. Berry presently resides in Louisiana and has an active, unrestricted license to practice medicine in Louisiana. After numerous letters were sent by plaintiffs’ lawyers to the Washington Department of Health, and other government officials demanding and investigation, Dr. Berry’s license to practice medicine was suspended in the State of Washington on March 18, 2004, over 15 months after Kim’s injury.

Judge Craig Matheson granted plaintiffs summary judgment on August 22, 2003, declaring that Kadlec Medical Center was vicariously liable for all negligent conduct of Dr. Berry. However, Kadlec Medical Center was a defendant in this lawsuit, not just for the vicarious liability of Dr. Berry, but also for its own corporate negligence. Kadlec Medical Center held a care conference with Kim Jones’ family, but did not tell them that Dr. Berry had admitted that he stole and used narcotics from the hospital. Kadlec Medical Center also did not report Dr. Berry’s drug diversion to any authorities, and was later cited by the Washington State Department of Health for failure to report this event. Although Kadlec representatives later admitted that its pharmacy control systems showed abnormally high use of Demerol by Dr. Berry as early as October 2002, it was not until November 14, 2002 (two days after Kim Jones injury) that the Pharmacy Director performed a “routine” printout of the software data alerting him to Dr. Berry’s abnormal drug use. Plaintiffs’ lawyers also learned that documents regarding Dr. Berry were “missing” from the hospitals’ previous paper system of monitoring drugs. Ultimately, over a year after the Kim Jones injury, the hospital admitted to the U.S. Drug Enforcement Agency that at least 155 units of the narcotic Demoral were stolen by Dr. Berry.

Additionally, prior to Kim Jones injury, several Kadlec Medical Center employees reported concerns about Dr. Berry to their supervisors, but hospital administrators took no steps to investigate Dr. Berry prior to Kim’s tragic injury. To the contrary, Kadlec Medical Center actually credentialed or recredentialed Dr. Berry seven times while he practiced at Kadlec Medical Center. Further, Kadlec Medical Center failed to follow proper credentialing procedures in initially granting hospital privileges to Dr. Berry. If Kadlec had done the appropriate investigation of Dr. Berry’s past medical practices it would have found that just months before beginning to work at Kadlec Hospital, Dr. Berry was terminated from his prior employment as a physician in Louisiana with Lakeview Anesthesia Associates and at Lakeview Medical Center because he had reported to work in an “impaired physical, mental and emotional state.” A letter written by Dr. Mark Dennis, Director of Lakeview Anesthesia Associates and Chairman of the Anesthesia Department at Lakeview Medical Center, stated that Dr. Berry’s impaired condition prevented him from properly performing his duties and put his patients at “significant risk.” Neither Lakeview Anesthesia Associates nor Lakeview Regional Medical Center reported the incident regarding Dr. Berry to any authorities or Kadlec Medical Center. The settlement with Robert Lee Berry, M.D., and Kadlec Medical Center, does not preclude plaintiffs from litigation against Lakeview Anesthesia Associates or Lakeview Regional Medical Center.