Tuesday, October 04, 2005
Chicago Tribune
by Mickey Ciokajlo and Tom Rybarczyk

Cook County is set to approve a $35 million medical malpractice settlement with a woman who suffered severe brain damage after undergoing a botched procedure at a county-run hospital.

The woman, a 30-year-old mother of two, was subjected to the failed procedure at Oak Forest Hospital only because physicians there had misdiagnosed a viral infection as appendicitis, according to the lawyers involved.

The case is one of the largest settlements in Cook County and matches a $35 million settlement reached last year in a case involving an anesthesiologist at Northwestern Memorial Hospital that left a boy brain damaged. That case did not involve the county.

"The facts in the case are horrible," said Cook County Commissioner Peter Silvestri, chairman of the board's Litigation Subcommittee, which approved the settlement last month. "The settlement is justified and certainly should be paid."

At its meeting Wednesday, the County Board will be asked to approve the settlement, a record for it in medical malpractice cases. William Maddux, the presiding judge of the Law Division, approved the settlement last week.

Under the terms, the county would pay $20 million, with insurance carriers funding the remainder.

The case involves Neveen Morkos, a Christian who immigrated to the United States to avoid religious discrimination in Egypt, and Dr. Gustavo Albear, an anesthesiologist.

Morkos and her husband, Hany, moved to Tinley Park in February 2004 to live near family members, who had immigrated a few years earlier, said Eugene Pavalon, the Morkos' lawyer.

They did not have health insurance, so when Neveen Morkos experienced acute stomach pain on May 19, 2004, an ambulance drove her to Oak Forest Hospital, which has a small emergency room.

Cook County runs three hospitals that provide health care regardless of a person's ability to pay.

Problem misdiagnosed

Doctors told Morkos she needed an emergency appendectomy. It was later determined that she had a viral infection that did not require surgery.

Albear, who was 78 at the time, was called to prepare Morkos for surgery.

Albear medicated Morkos to get her muscles to relax. Since Morkos would not be able to breathe on her own while medicated, Albear then inserted a tube through her nose to provide oxygen to her lungs.

However, Albear did not secure the tube properly, Pavalon said. When the tube became dislodged, Albear was unable to reinsert it, depriving Morkos of oxygen.

By the time surgeons were able to perform an emergency tracheostomy to provide oxygen to Morkos, 10 to 12 minutes had passed. She then went into cardiac arrest.

"There was no doubt that the negligence in this case caused this tragic occurrence and Neveen's irreversible brain damage," said Pavalon, a lawyer with the Chicago firm Pavalon, Gifford, Laatsch & Marino. "So not only do the circumstances justify this record settlement, but this is one of those traumatic occurrences that simply should not have happened."

After the incident, Morkos initially was in a vegetative state, but she has improved. Though she requires round-the-clock care and cannot walk, she can now say her husband's name and recognizes her children, Halana, 6, and Victor, 3, Pavalon said. She also can write in Arabic.

Morkos is in a Burbank nursing, but her family desperately wants her home, Pavalon said. The money from the settlement will allow them to build or buy and modify a house and provide in-home care.

Morkos was not working at the time of the incident because the family was newly arrived in the country and she was caring for the children. She was college-educated and had taught computer science in Egypt.

"She was always looking for a better place," said Nermeen Morkos, Neveen's older sister.

Nermeen Morkos said she visits her sister every day and looks forward to bringing her home.

"We hope she can walk someday," Nermeen Morkos said. "We are praying to God; we are waiting for a miracle for her."

Albear could not be reached for comment.

When asked in the deposition he gave for the lawsuit if he remembered the episode, Albear said, "I will recall for the rest of my life."

Albear retired in 2004 after the incident, said Patrick Driscoll, head of the Civil Actions Bureau of the Cook County state's attorney's office.

Oak Forest Hospital did not discipline Albear and state records do not show any previous disciplinary issues. He renewed his license with the state last summer, but Driscoll said he understands that Albear, who turns 80 on Wednesday, is no longer practicing.

Although no parties in the case directly blame his age, Pavalon said he thinks it was a factor. Albear also had arthritis in his hands.

"I think probably he never should have been in that [operating] room," Pavalon said.

No age restrictions

Silvestri said the county does not have age restrictions for its doctors. He said when this case was discussed in committee, commissioners asked county officials to research the issue after they were told that some hospitals impose work limitations based upon age.

Through a spokeswoman, officials of Cook County's Bureau of Health Services and County Board President John Stroger's office declined to comment before the board's approval.

Albear worked for 23 years at Palos Community Hospital before retiring in 1994. In his deposition, Albear said he got a job at Oak Forest Hospital six months later, noting he enjoyed his work and wasn't ready for retirement.

Commissioner Mike Quigley, vice chairman of the Litigation Subcommittee, said Albear's age was not so much the issue but rather his overall ability to perform.

"The more you hear about the case, the worse it gets," Quigley said. "Someone should have been able to determine that this physician was incapable of performing critical procedures. He shouldn't have been in a position to fail."