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Delco Jury Awards $1.125M Over Med Mal Claims

Max Mitchell, Law Weekly

August 31, 2017

A Delaware County jury has awarded $1.125 million to a woman who had an extra bone removed during a foot surgery.

The verdict in Kline v. Hawley was handed up Aug. 25 after a week of trial before Delaware Court of Common Pleas Judge Michael Green. The jury had deliberated for 70 minutes before determining that the defendant doctor had been negligent and failed to obtain plaintiff Elena Benedetti Kline’s informed consent before the procedure.

The jury awarded Kline $562,500 in pain and suffering, $112,500 in embarrassment and humiliation, $325,000 in loss of enjoyment of life and $125,000 in disfigurement.

Gerald Baldino of Sacchetta and Baldino, who represented Kline, said testimony from the defendant doctor who performed the surgery was a turning point at trial.

“When trying to explain some contradictions from his in-court statement and his deposition, he blurted out that he didn’t think he would have to testify because he thought it would get settled,” Baldino said, noting that the defendant quickly added he did not think he had done anything wrong. “He was not his own best witness, and he made a lot of concessions.”

According to the plaintiff’s pretrial memo, Kline was being treated by Dr. Lee Cohen for complaints of pain in her left foot. She treated conservatively from July 2012 through February 2013, when Cohen referred Kline to his associate, Dr. Cory Hawley.

In March 2013, she underwent a tailor’s bunionectomy and procedure to remove a sesamoid bone. However, according to the pretrial memo, both of the sesamoid bones in Kline’s left foot were removed. Kline was 29 at the time of the surgery, and was a frequent runner.

The memo said that, as a result of having both sesamoid bones removed, Kline developed a claw toe deformity that required two corrective surgeries. The second surgery, according to Kline’s memo, resulted in a surgical infection, which required another procedure.

Kline sued Hawley and Cohen, alleging medical malpractice. She contended that removing both sesamoid bones was against the standard of care, and failing to undertake another procedure to protect against claw toe was another breach of the medical standards. She further contended that Hawley failed to obtain informed consent.

Along with the surgeries, Kline said in her memo that she has been left with permanent scarring and disfigurement as a result of the treatment. She also contended that she could no longer run.

An expert for Kline, Dr. Martin Pressman, opined in a report that additional imaging should have been done before the second sesamoid was removed, and having both removed at the same time is a “highly unusual procedure.”

The doctors denied the treatment was negligent, or that they caused Kline’s claimed injuries.

Dr. Edward Pellecchia said in a report for the defendants that Kline’s post-surgery problems appeared only after she underwent an aggressive course of physical therapy that had not been prescribed. He further opined that the doctors fully discussed the risks of the procedure.

Baldino said there were no settlement talks before the verdict, and the defendants were insured by Campmed Casualty & Indemnity Co.

Robert Dillon of Naulty, Scaricamazza & McDevitt represented the defendants. Dillon did not return a call for comment.

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