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$15 Million Awarded by Philadelphia Jury to Child who Suffered Kidney Damage

Attorneys Ken Rothweiler, Dan Jeck and Brian Hall secured a $15 million verdict for a boy who needed a kidney transplant after the cessation of antibiotic therapy to prevent...

Attorneys Ken Rothweiler, Dan Jeck and Brian Hall secured a $15 million verdict for a boy who needed a kidney transplant after the cessation of antibiotic therapy to prevent urinary tract infections.

A 12-person jury handed down the award after three hours of deliberation Friday afternoon following a five-day trial before Philadelphia Common Pleas Judge Bernard Goodheart, said plaintiff's attorney Kenneth M. Rothweiler of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C.

There were no defense offers to settle the case, and plaintiffs attorneys went to court yesterday to file a motion seeking $3.5 million in delay damages for their client.

Plaintiff Malcolm Graham was born with a urological defect, a posterior urethral valve, Rothweiler said. The defect caused urine to reflux through the ureter, and result in urinary tract infections.

The problem, if treated incorrectly, could lead to kidney damage, Rothweiler said. And that is what happened when Malcolm, at 8 years old, was taken off antibiotic therapy.

The antibiotic therapy was ceased by the defendant, a pediatric urologist Howard M. Snyder, in 1992 because Malcolm had been infection-free for eight years. After age 8, the chance of infections is said to decrease.

But Malcolm did get an infection, along with reflux of urine, and as a result of the incident, suffered kidney damage that required a transplant, which he finally received in 1997. After suffering the urosepsis infection, Malcolm was placed back on antibiotic therapy, Rothweiler said.

Defense lawyers challenged the plaintiff's theory that Snyder was negligent for taking the patient off antibiotics, and also said that there was a break in the chain of causation between the treatment decision and the kidney failure.

"They said that my client was destined to have a transplant from his date of birth," Rothweiler said. But plaintiff's counsel argued that the damage stemming from the infection could have been averted if the antibiotic therapy had never been abandoned by Snyder.

"Their causation argument was that the child was destined to have a kidney transplant because of the abnormality," Rothweiler said. "We disputed that, and said that over the years 1984 to 1992, his kidneys were doing fine.

Defense experts said that Snyder's decision to take Malcolm off antibiotics was justified because the boy was having no infections and because the urologist was loathe to prescribe a life-long course of antibiotic therapy.

Rothweiler used the success of the antibiotic treatments as proof that it should gave continued.

"They said that since he was on antibiotics and healthy and maturing that it was time to take him off the treatment," Rothweiler said. "But we argued that because of the dangers of reflux, Snyder had to keep him on a course of antibiotic treatment for an indefinite length of time."

The nine-woman, three-man jury rejected the defense suggestion that Snyder's treatment decision was within the standard of professional care.

Malcolm lost time at school, was forced for a while to wear a bag into which his urine drained, and faces probably two further kidney transplants over the course of the rest of his life, Rothweiler said. The condition seriously limits the physical activity of the boy, who is now 14.

"He faces a life of future surgeries and uncertainty," Rothweiler said yesterday.

Defense Counsel Michael McGilvery of Wright Young & McGilvery was in a trial yesterday and not available for comment, according to his office.

Snyder was the sole defendant to be hit with the verdict, as his practice group was dismissed from the case at the end of testimony.

Rothweiler said his firm is planning to use part of the recovery, once collected, to fund a contribution to legal services to the indigent, and another portion to provide seed money for a charitable foundation for children's issues.

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