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Civil suit unfolded like nothing Trumbull judge had seen in 18 years on the bench
By Ed Runyan
WARREN
A medical malpractice suit that resulted in a $28.7 million judgment in favor of a Warren family was unlike anything Judge Peter Kontos of Trumbull County Common Pleas Court has seen in 18 years on the bench.
When he heard evidence during a half-day trial without a jury early last month, the defense attorney for ValleyCare Trumbull Memorial Hospital nurse Nicole R. Prusky presented no evidence to dispute her negligence.
Her attorneys also didn’t argue that the amount of damages should be limited.
All of the evidence presented came from attorneys for Nathan Wolcott and his parents, Matthew and Jennifer Wolcott of Warren. They said it would cost $24.9 million to care for Nathan, who has cerebral palsy, for the rest of his life.
Nathan’s attorneys also testified that Nathan’s earning capacity has been reduced by $2.9 million, and the noneconomic loss to Nathan’s parents is $500,000 each.
“All of the findings of the experts regarding costs were uncontested or uncontradicted,” said Judge Kontos.
That limited his role, because in the absence of arguments by the defense indicating a different point of view, there was only one choice to be made: to award the amounts presented by the Wolcotts, Judge Kontos said.
What resulted was a record judgment in a Trumbull County civil case.
One local attorney, however, says the unusual nature of the case could mean there might be an agreement among the parties that calls for something less than $28.7 million.
Samuel Bluedorn, a Warren criminal-defense attorney who also has experience in civil litigation, said he doubts there is any way for the Wolcotts to collect on the entire $28.7 million judgment.
There may be insurance that will pay up to $1 million, but beyond that, Prusky is “probably on the hook for the rest,” Bluedorn said.
Neither Prusky, her attorney nor the attorney for the Wolcotts returned calls seeking an explanation. Matthew Wolcott declined to be interviewed.
Other local legal experts say it might be misleading to say that the Wolcott judgment is for a record amount — because it appears there is little that the Wolcotts and their attorney can do to collect on it.
A judgment entry from Judge Kontos in August said the insurance that began covering Trumbull Memorial Hospital after its ownership transferred from Forum Health to Community Health Systems in 2010 covers events dating back to Oct. 1, 2010.
The hospital’s current owner, Community Health Systems, purchased Forum Health’s assets in bankruptcy court in 2010.
Because Nathan was born Feb. 24, 2010, the Community Health Systems insurance isn’t required to defend Prusky or the other nurses in the lawsuit, Judge Kontos ruled.
Furthermore, claims to be paid by Community Health Systems for matters dealing with Trumbull Memorial while it was owned by Forum Health had to be filed by June 1, 2011, to be valid, Judge Kontos ruled. The Wolcott lawsuit was filed July 12, 2011.
“Anything else they [the parties in the lawsuit] would have done, I have no idea, because that’s beyond my duty and obligation in this case,” the judge said.
This case, like others involving money being paid to juveniles or other individuals unable to handle their own financial affairs, ultimately will involve a review by the Trumbull County Probate Court of any money to be distributed to Nathan Wolcott, said Probate Judge Thomas A. Swift.
In fact, a special-needs trust was established in probate court for Nathan Wolcott in 2011. That trust handled an earlier $1 million payout by the insurance for the obstetrician who cared for Jennifer Wolcott and Nathan Wolcott, Dr. Jean Cairns, and the medical group Cairns & Mondary OB/GYN Inc. of Warren.
Documents in Nathan Wolcott’s probate-court cases say Nathan’s brain was deprived of oxygen during labor and delivery, “and signs that this was happening went unheeded by the attending medical staff charged with monitoring Jennifer and Nathan.”
A fetal heart monitor was in place to monitor Jennifer’s contractions and Nathan’s condition, the filing says. “Initially, the fetal heart-rate strips were reassuring, but after time, they deteriorated as labor progressed. Eventually the information portrayed by the fetal heart rate demanded intervention, but neither the doctor nor the nurses intervened,” the filing says.
The boy required resuscitation just after he was born because he was not breathing. He was transferred to St. Elizabeth Health Center (now St. Elizabeth Youngstown Hospital) and then to Akron Children’s Hospital.
The $1 million settlement represents the limit of the insurance policy for the doctor and the medical group, the filing says.
Of the $1 million, attorneys were awarded $400,000. Of the remaining $600,000, Jennifer and Michael Wolcott were awarded $117,000 to pay off a $52,000 mortgage, buy a $45,000 special-needs van and pay off a $20,000 lien resulting from medical bills and a decrease in the family’s income when Jennifer quit working to care for Nathan.
An additional $133,000 went into a special-needs trust for Nathan’s current needs; and $350,000 went into an annuity that will provide Nathan with $1,103.50 per month for life. It guarantees a yield of $529,000 to Nathan or his estate and up to $940,182 if he would live to be 71.