Jennifer R. Wickersham
Special to the Legal

 Pennsylvania Superior Court has affirmed an $18.66 million judgment against Dr. Howard M. Snyder, the urologist held responsible for negligent treatment of a boy who underwent a kidney transplant after termination of his antibiotic regimen.

"It is clear that Malcolm [Graham's] suffering will continue into the future. Therefore, we will not substitute our judgment for that that of the jury in this case," said the three-judge panel of Judges Michael T. Joyce, Maureen Lally-Green and Phyllis W. Beck in a memorandum opinion in M.G. v. Children's Hospital, et al.

Snyder was represented by Michael McGilvery of Wright Young & McGilvery.

"Dr. Synder has always been disappointed in the verdict," McGilvery said. "He believes it was a medical judgment."

On appeal, Snyder asserted that the trial court erred in denying his request for a new trial based on the fact that plaintiff's counsel allegedly made references to possible award amounts during closing arguments. The court agreed that during closing argument, counsel "discussed the amount of damages to award, gave a range of numbers and then pointed to a figure." The trial judge then gave instructions to the jury on the applicable law. The Superior Court said the instructions were sufficient to negate any possible prejudice and denied the claim.

Snyder also asserted that the trial court erred in denying his request for new trial which claimed Graham's counsel made references to a breach of the standard of care by Snyder which expert testimony did not support. Plaintiff's counsel presented testimony that it was not proper to take Graham off Bactrim without having performed a particular diagnostic test. The Superior Court concluded that testimonial evidence supported references to this test made by plaintiff's counsel in closing arguments and denied Snyder's claim.

The court also rejected Snyder's contention that the trial court erred in denying a new trial when testimony of several witnesses constituted improper opinion evidence. The court found the testimony, which was given by Graham's mother and one of his close friends, acceptable as personal observation.

Snyder also lost his bed for a new trial on the grounds of excessive verdict.

The court employed the Kemp factors in determining whether or not the verdict was against the weight of the evidence. The Kemp factors include severity of the injury, whether the injury is manifested by objective physical evidence, whether the injury will affect the plaintiff permanently, whether plaintiff can continue with his employment, the amount of out-of-pocket expenses and the amount the plaintiff demanded in the original complaint.

From the time of his birth in 1984, Graham was at high risk for infection. A defective urinary tract left him with a serious decrease in kidney function. Graham was subject to reflux, which meant he needed a steady regimen of Bactrim to prevent the development of urinary tract infections.

Snyder examined Graham in 1992 and determined that due to a lack of infection, Graham should discontinue the use of Bactrim. Later that same year, Graham developed a urinary tract infection; and Snyder performed anti-reflux surgery. Additional complications resulted in Graham undergoing a kidney transplant in 1997.

Graham's attorney, Kenneth M. Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C., said that because of the young man's age, he will likely have to undergo at least two more kidney transplants in the course of his life.

Snyder argued that Graham's chronic renal failure was a pre-existing condition and that Graham would have needed two kidney transplants over the course of his life regardless of whether or not he had been taken off of Bactrim.

"We note that none of the testimony elicited at trial reflected that Malcolm would have needed a kidney transplant absent the discontinuance of the Bactrim," the court said. "Malcolm suffered considerable harm, culminating in a kidney transplant in 1997, justifying the considerable award by the jury."

Despite the fact that the verdict has now been affirmed, the issue of who exactly will pay the $18.66 million has yet to be determined.

Rothweiler contended that Snyder was employed by either the clinical practices department of the Hospital of the University of Pennsylvania or by the Children's Surgical Association, a practice jgroup of Children's Hospital of Philadelphia.

CSA was dismissed from the action by the trial court, and that decision was affirmed on appeal.

"My position is that the University of Pennsylvania Hospital was and is his employer," Rothweiler said.

There is a motion before Judge Bernard Goodheart concerning the issue of whether or not HUP was the doctor's employer, said McGilvery.

Rothweiler said he still expects payment to come from Snyder's employer, whomever the court deems that to be.

Source: The Legal Intelligencer