PITTSBURGH – Counsel for the parents of a 33-year-old man who died of a pulmonary embolism at the University of Pittsburgh McKeesport hospital one year ago recently finalized the settlement of wrongful death litigation brought in connection with that event for $1 million.
Wade S. Lewis II of Pittsburgh and Ruth Anne White (Administrators of the Estate of Tremon Desmond White, deceased) of Duquesne first filed suit in the Allegheny County Court of Common Pleas on Jan. 18 versus UPMC McKeesport of McKeesport and University of Pittsburgh Physicians, of Pittsburgh.
“On July 25, 2022, decedent, 33 years old at the time, presented to the UPMC McKeesport emergency department at 7:52 p.m., due to shortness of breath and difficulty breathing. Decedent was initially triaged by Asia Strader at 8:32 p.m. Ms. Strader noted that decedent had been having shortness of breath for the past two weeks and that his difficulty breathing had gotten acutely worse that day. Decedent also reported experiencing what he believed was severe kidney pain that he rated as an 8 out of 10 located bilaterally in his abdomen. Ms. Strader obtained decedent’s vitals and documented tachycardia (124 bpm) and oxygen saturation of 94%, but failed to measure his respirations,” the suit said.
“The defendants never again obtained decedent’s vital signs, a span of more than eight hours leading up to the time of decedent’s death. The defendants also failed to timely obtain an adequate history from decedent which (as was learned by the defendants many hours later) would have revealed that decedent had recently experienced right leg swelling, a sign of deep vein thrombosis, a condition that portends pulmonary embolism. At 9:49 p.m., Sarah Kate Flaherty, M.D., ordered a chest x-ray for decedent to be performed STAT due to shortness of breath. A ‘STAT’ order is defined as a quick turnaround time and is done when the result is needed quickly for a decision regarding patient management. A chest x-ray was performed on decedent at 9:49 p.m. The reason for the chest x-ray was ‘sob, dyspnea, shortness of breath.”
The suit added that the defendants knew or should have known that the decedent was potentially suffering from a life-threatening pulmonary embolism and should have thus ordered a STAT CT angiogram, EKG and/or empiric anticoagulation, to diagnose that condition.
“Instead, for the next several hours, the defendants did nothing for decedent, and upon information and belief, caused decedent to sit in the waiting room without any additional medical intervention or treatment. At 1:38 a.m., 3.5 hours after decedent’s chest x-ray had been reported, Natalie Gaudy, CRNP, ordered a STAT 12-lead EKG. Despite a STAT order for a simple diagnostic test, decedent’s EKG was not performed until 4:28 a.m., nearly three hours later. Decedent’s EKG – when it was finally performed – was abnormal and revealed right heart strain, yet another sign he was suffering from pulmonary embolism,” the suit stated.
“At 1:38 a.m., nurse Gaudy ordered another STAT chest x-ray for decedent’s chest pain but cancelled it two minutes later, presumably because she discovered a chest x-ray had already been performed several hours earlier. At 1:55 a.m., nurse Gaudy ordered D-Dimer and Troponin blood tests, STAT. At 2:33 a.m., decedent’s D-Dimer and Troponin resulted and revealed abnormally elevated values indicative of pulmonary embolism. Notwithstanding, the overwhelming evidence that decedent was suffering from a life-threatening pulmonary embolism, the defendants failed to provide any care, treatment, or further workup of decedent and his life-threatening condition for the next 1.5 hours.”
The decedent was taken for his CT angiogram, to rule out pulmonary embolism, just before 5 a.m. and reported not feeling well on arriving to the CT angiogram room.
“On arrival to the CT scanner room, decedent reported he was not feeling well. Decedent got up from his litter, fell backward, and became unresponsive. A code was called at approximately 4:58 a.m. Upon arrival by the rapid response team, decedent was found unresponsive with visible secretions in his mouth. Decedent did not have a pulse and CPR was begun. Decedent was found to have pulseless electrical activity on cardiac monitor and was intubated,” the suit added.
“Because the defendants’ agents/employees caring for decedent knew he was suffering from pulmonary embolism, they administered 100 mg of tPA. Unfortunately, the care provided at this time was too late and decedent was declared dead at 5:42 a.m. Following his death, an autopsy was performed on decedent, which revealed that decedent died due to bilateral pulmonary thromboembolism wherein thromboembolus was discovered in the right and left main pulmonary arteries respectively.”
The UPMC defendants individually filed answers along with new matter on April 27, which denied the plaintiffs’ allegations in their entirety.
“This defendant asserts those applicable defenses under the Medical Care Availability and Reduction of Error Act (MCARE Act) and/or the Health Care Services Malpractice Act. To the extent that the evidence reveals that the decedent had a pre-existing condition that caused or contributed to the claimed injury, this defendant pleads the existence of that pre-existing condition as an affirmative defense. To the extent that the evidence reveals any failure to mitigate, this defendant pleads this as an affirmative defense. This defendant pleads that, without admitting any liability, the alleged damages and injuries, if any, were not caused by this defendant but were instead caused by others not under this defendant's control or supervision,” the defendants’ new matter stated.
“This defendant pleads that, without admitting any liability, the alleged damages and injuries, if any, were caused by intervening and/or superseding causes. Plaintiffs are barred from recovering any past premiums, deductibles or other expenses related to the health insurance plan providing minimum essential coverage as required by law. Plaintiffs are barred from recovering any past medical expenses to the extent the decedent failed to obtain the minimum essential coverage as required by the Affordable Care Act.”
On July 17, the plaintiffs filed individual replies to the separate answers from the defendants and their new matter, which denied the material in its entirety.
“Paragraphs 68 through 74 of defendants’ new matter constitute legal conclusions to which no responsive pleading is required. To the extent a response is deemed to be required, these paragraphs are denied,” the replies stated.
Plaintiff counsel filed a petition for approval of a settlement in the wrongful death action on Sept. 7, in the total amount of $1 million.
“A settlement agreement was reached on or about Aug. 15, 2023, whereby defendants, by and through their respective liability insurance carriers and/or Medical Care Availability and Reduction of Error Fund (MCARE) agreed to pay the sum of $1,000,000 in exchange for a release of defendant and all claims arising from the death of Tremon White. Petitioner retained counsel on a 33.3% contingent fee basis. Petitioner’s counsel believes its fee is reasonable particularly in view of the work performed by counsel, the complex nature of the medical/legal issues raised in the present case, and the offer of settlement obtained. Pursuant to petitioner’s fee agreement, petitioner’s counsel also is to be reimbursed for costs advanced in the prosecution of this matter. Lupetin & Unatin, LLC advanced costs in this matter in the sum of $6,669.94,” the petition said.
“The record evidence demonstrates that decedent died in close proximity to the alleged negligence and thus experienced little conscious pain and suffering. Additionally, decedent had little in the way of work history and thus any claim for future income loss would have been small in comparison to what decedent meant to his mother and father. Because damages in this matter attributable to the survival action are less than those attributable to the wrongful death action, petitioner proposes that 20% of the proceeds of settlement be attributed to the survival action and 80% to the wrongful death action. It is agreed, as part of the settlement offer, that the defendant, its insurance carrier(s) and MCARE shall arrange promptly after the approval of the settlement, payment of $1,000,000 to petitioner and to petitioner’s counsel, keeping in mind that the MCARE fund shall issue its $500,000 portion of the settlement payment on or about Jan. 1, 2024.”
The proposed disbursement of the settlement funds would proceed as follows:
• To Lupetin & Unatin, LLC: The sum of $333,333.34 for attorney’s fees;
• To Lupetin & Unatin, LLC: The sum of $6,669.94, for reimbursement of costs advanced;
• To Wade S. Lewis, II and Ruth Anne White as wrongful death beneficiaries: The sum of $527,997.37, which represents an 80% allocation to the wrongful death claim; and
• To the Estate of Tremon Desmond White, deceased: The sum of $131,999.34, which represents a 20% allocation to the wrongful death claim.
UPDATE
On Sept. 21, Allegheny County Court of Common Pleas Judge Christine A. Ward approved the petition and gave the plaintiffs leave to settle the case under the above-directed terms.
Subsequently, on Oct. 6, plaintiff counsel filed a praecipe to mark the case as settled and discontinued.
The plaintiffs were represented by Brendan B. Lupetin of Lupetin & Unatin, in Pittsburgh.
The defendants were represented by John C. Conti, Lisa D. Dauer, Justin M. Gottwald and Grant W. Cannon of Dickie McCamey & Chilcote, also in Pittsburgh.
Allegheny County Court of Common Pleas case GD-23-000646
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com