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Personal Injury

Court to Consider Whether Doctor Concealing Cause of Death Extends Time to Bring Claim

In 2002, baby Ira Faustino died after having heart surgery performed by Dr. William I. Norwood at duPont Hospital for Children. In 2005 Ira's parents filed a medical malpractice suit after learning for the first time that Ira suffered brain damage as the result of allegedly negligent conduct by Dr. Norwood during the surgery. The Faustinos claim that it was not until Dr. Norwood was fired from duPont in 2005 amidst heavy media coverage that they learned that Dr. Norwood had allegedly been performing experimental surgeries on critically ill children in an attempt to develop a new surgical procedure for heart problems. Only after the media coverage revealed apparent problems with Dr. Norwood's techniques did the Faustinos learn that Dr. Norwood had used an unconventional cooling method on Ira to prepare him for surgery and then fraudulently concealed that fact from his parents after he died. It is alleged that Dr. Norwood used an untested cooling method that cooled the body more quickly than standard methods, but resulted in seizures and brain damage in some patients. Because Dr. Norwood allegedly did not tell the hospital or parents of patients that he was not cooling patients in a traditional manner, it was never suggested to the Faustinos that this aspect of the surgery could have been the cause of Ira's death. The Faustinos allege that if they had known at the time that Ira died that Dr. Norwood had used the unconventional cooling technique and that Ira suffered brain damage thereafter, they would have filed suit sooner and not allowed the 2 year statute of limitations to expire.

duPont and Dr. Norwood are asking the Court to punish the Faustinos' attorney for filing the lawsuit, arguing that she knew it was frivolous because the statute of limitations had clearly expired before it was filed. In support of their argument, duPont and Dr. Norwood allege that the Faustinos knew immediately after Ira's death that he died from fluid in the lungs, which is a common complication of the surgery he had. Further, duPont and Dr. Norwood argue that the Faustinos were told that Ira died from "complications of surgery," which they assert demonstrates there was no overt act of fraudulent concealment as required by Pennsylvania law to extend the statute of limitations. The Faustinos, on the other hand, argue that duPont and Dr. Norwood's failure to advise them that an unconventional cooling method was used on Ira during surgery was an overt act of fraudulent concealment.

This case demonstrates that complex issues, both legal and medical, that can arise in medical malpractice cases. The assistance of an experienced attorney who is willing to explore all available legal theories is crucial to success in this complicated area of the law.

From Philadelphia Medical Malpractice Lawyer Blog posted 2008-02-05.