Brain-Damaged Boy Awarded $2.25 Million in Negligence Lawsuit

A Santa Ana boy won a $2.25-million jury verdict Friday from Santa Ana-Tustin Community Hospital, which was found negligent for failing to monitor the competence of an anesthesiologist whose conduct during a 1979 tonsillectomy led to brain damage and other injuries.

Mark A. Flores, now 11, functions at the level of a 6-year-old because of the inadequate supply of oxygen he received during the Aug. 13, 1979, operation, said his lawyer, Steven J. Weinberg of Indio.

‘Should Send a Message’

“The jury verdict should send a message that not only is the hospital negligent but that other hospitals in the area had better have procedures to review the conduct of doctors and to restrict privileges only to competent doctors,” Weinberg said.

Hospital lawyer Richard E. Madory of Tustin was unavailable for comment after the verdict.

Weinberg said Mark’s mother, Dora T. Burruel, was “very pleased” with the verdict.

Mark only appeared for about 15 minutes of testimony during the trial, and neither he nor his mother was present when the verdict was read Friday afternoon.

Mark, who understands he is handicapped, was kept away from the trial, Weinberg said, because he is easily depressed and the testimony about his bleak future could seriously harm him emotionally.

“He knew how to swim and ride a bike and now he can’t do either,” the lawyer said. “He can’t turn a faucet on or off; he can’t tie his shoe laces anymore; and he can’t button his shirt.”

He said Mark, whose IQ ranges from 69 to 77 since the surgery, will never be able to function above the level of a 12-year-old.

Burruel said in an interview last September that she was following the advice of her doctors in bringing Mark to the hospital to remove his troublesome tonsils.

“I brought him in and they brought him back to me on a stretcher,” she said. In and out of a coma for a month in the hospital, the boy regained consciousness after he was brought home. But he was blind for four months and has since had difficulty seeing and learning, she said.

Weinberg said the hospital did not have any procedures for reviewing the work of physicians to prevent the potential for injury to patients.

While the jury found that the anesthesiologist, Dr. Jeanne E. Gannon, was incompetent and that her incompetence caused Mark’s injuries, it cleared of any wrongdoing the physician who was performing the tonsillectomy, Dr. Billie Reasoner.

Gannon settled out of court last Dec. 18 by paying Mark $150,000 in cash and buying two annuities that will pay him a total of about $2,500 a month for life and up to $2.32 million more in periodic payments.

Gannon’s settlement cost about $561,000, which will be deducted from Friday’s jury verdict. Because the jury awarded $50,000 more than the law allows for one area of damages that Mark sought, that amount also will be deducted from the total verdict, Weinberg said.

Weinberg and Reasoner’s lawyer, Louis DeHaas of Malibu, said the jury had to find that Gannon was incompetent before it could hold the hospital liable for failing to screen the abilities of its staff.

Testimony, they said, indicated that on at least 10 prior occasions, Gannon’s inattention to details of patients’ life signs during surgery led to serious problems, such as patients turning blue from lack of oxygen. All the patients, though, had recovered, they said.

Dr. David Sacks of Santa Ana testified that Gannon twice during the same type of surgery allowed a child to lose oxygen in his blood, Weinberg said.

Three anesthesiologists, he said, testified that Gannon’s prior conduct demonstrated a pattern of inattention to detail that created an unreasonable anesthetic hazard to patients and, by definition, made her incompetent.

Reasoner testified that he noticed blue blood, a sign of a lack of oxygen, during the surgery on Mark, and told Gannon, who he said should have known about such problems before they developed.

He also testified that he was the first to find that the boy had gone into a cardiac arrest, something he said Gannon also should have discovered first.

Reasoner said he began applying emergency cardiac resuscitation when Mark, then 5, stopped breathing. The boy did not respond until after a fourth electric shock to his chest, the physician said.

Gannon, who now lives and works in a Pittsburgh suburb, returned to testify about her procedures, including the use of a stethoscope to monitor Mark’s heartbeat. The lawyers said she told jurors she routinely did not use electrocardiograms (EKG).

But Weinberg said other physicians testified that the standard of care in such operations required the use of EKGs.

Gannon’s lawyer, Byron J. Beam of Santa Ana, has contended that Gannon was not negligent and that she maintained the standard of care followed by anesthesiologists in the area.

Burruel and her former husband, Rudy P. Flores, had also been plaintiffs in the lawsuit but were dismissed from the case by the defendants because state law does not allow parents who do not witness their child’s injury to collect for their child’s damages.

Gannon, meantime, was denied staff privileges at Santa Ana-Tustin Community Hospital for about a year, was reinstated and sued the hospital for denying her the opportunity to work. In December, 1983, she won a $2,244,660 jury verdict, which is on appeal.