The Battle Rages On for Malpractice Caps

Wayne J. Guglielmo, MA

Disclosures

November 16, 2016

In This Article

A Harsh Attorney Causes Med-Mal Mistrial

Can a plaintiff's attorney who bullies a defendant in a medical-malpractice suit jeopardize his own case? Yes, as a report in Pennsylvania's The Citizens' Voice makes clear.[2]

The dramatic and ultimately trial-ending scene unfolded in a suit brought against Geisinger Wyoming Valley Medical Center, in Plains Township, Pennsylvania, and members of its clinical staff, including then-Geisinger ob/gyn Lucinda S. Antosh, now married and using the surname Mirra.

The multimillion-dollar suit was filed by the husband of Candice L. Perrillo, who died in 2012, 3 days after giving birth to a premature but otherwise healthy baby. In his suit, the plaintiff claimed that Geisinger doctors had "ignored repeated warning signs and allowed [his wife's] urinary tract infection to run rampant, causing organ failure."

During the fourth day of trial, Antosh Mirra was subjected to particularly withering questioning from the plaintiff's attorney, Patrick Dougherty. Among other things, Dougherty got Antosh Mirra to acknowledge that, although she had acted clinically appropriately, she hadn't fully reviewed the patient's medical history. This review would have revealed that the patient had a history of antibiotic-resistant bacterial infections. Under intense questioning, Antosh Mirra also admitted that, after she had prescribed amoxicillin for Candice Perrillo to treat a previous infection, she failed to order a urine culture, which would have shown whether or not the patient's system was free of bacteria.

With this last admission, Dougherty pounced: "Are you playing Russian roulette with my client's life?" The comment caused Antosh Mirra to sob uncontrollably on the stand, prompting trial judge Thomas F. Burke Jr to call for a recess. Out of earshot of the jury, he reprimanded Dougherty for his comment, which, as the judge explained, implied a motive, was clearly inappropriate, and unsettled at least one jury member.

"There was at no point a conscious effort [on the part of the doctor] to inflict harm on the patient," said Burke, who ordered a mistrial.

The lead attorney for Geisinger said he was disappointed by the development, because it postponed jury deliberations. The hospital system had argued that Perrillo died as a result of preeclampsia, a known complication of pregnancy. For his part, Dougherty said he hadn't intended to make the comment he did, but was simply trying to suggest that Antosh Mirra was making "educated guesses" about how to proceed instead of ordering conclusive tests.

"You know, I don't prepare these things," he added. "I mean, I write the questions down, but that [question] was my instinct."

The trial is scheduled to restart at a later date with a new jury.

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