An Orange County jury awards a mom $30 million after medical complications led to her son’s death.

By Anthony Colarossi, Sentinel Staff Writer

Published in the Orlando Sentinel on July 31, 2004
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Nathan Oliver Swilley was hiding Easter eggs when he stepped on a nail in his yard in 2001.

Less than a month later, on Mother’s Day, the 10-year-old Apopka boy died from complications connected to his medical treatment for the wound.

This week an Orange County jury awarded his mother, Christina Marie Wallace, $30 million in what may be one of the largest wrongful-death medical-malpractice verdicts in Florida history. Jurors said $4 million was for past pain and suffering and $26 million for future pain and suffering.

Two pediatric doctors prescribed antibiotics to treat Nathan’s foot infection. But they didn’t tell his mother of their potential to damage the kidneys and liver, nor did they tell her the child’s blood needed to be monitored for signs of toxicity, Wallace and her attorneys said.

“My son should not have died the way he died. He suffered. There’s no excuse for it. I held him in my arms when he died on Mother’s Day,” a tearful Wallace said Friday, less than 24 hours after the jury returned the verdict following a two-week trial.

“I trusted they knew what they were doing, and it cost my son his life,” Wallace said. She advised other parents to “ask a lot more questions about the drugs their children are being administered. I regret that I never asked more, that I trusted them.”

The jury found Drs. Vivek S. Desai and Ayodeji B. Otegbeye negligent in Nathan’s death. The two doctors are with the Central Florida Pediatric Intensive Care Specialists practice in Orlando.

Neither the doctors nor their attorneys returned telephone calls Friday.

Wallace said Nathan had been hiding eggs the day before Easter with his sister when he stepped on the nail. His mother cleaned the wound with peroxide, but his foot continued to hurt, and she took him to Florida Hospital in Apopka on April 15 and 17 for treatment.

Doctors in Apopka suspected an infection, and Desai admitted Nathan to Florida Hospital in Orlando on April 18, four days after he stepped on the nail.

By April 25 he was released and placed on a regimen of antibiotics prescribed by Otegbeye and Desai at the hospital. Wallace’s lawyer, Anthony J. Caggiano, said the doctors ordered “excessive doses” of the antibiotics gentamicin and Zosyn, and of Motrin, an anti-inflammatory drug.

Wallace administered drugs, including gentamicin, at home through daily intravenous treatments. But Wallace said she was never told that the antibiotics’ effects needed to be monitored carefully.

All three drugs can be toxic to the kidneys, and Nathan should have had his blood work monitored every five to seven days, according to Caggiano and medical experts who testified during the trial.

But the lab work was not done. At one point when Nathan was suffering from a high fever and other symptoms, his mother called one of the two doctors, who “writes it off as the flu,” Caggiano said. Nathan lost 11 pounds and became dehydrated while on the medications.

He was readmitted to the Orlando hospital May 8 and was treated by Otegbeye and Desai. But by then his kidneys and liver were failing. He was placed on dialysis and developed complications. Nathan’s brain swelled, and he died.

“This was the most egregious case of malpractice I have ever witnessed,” said Caggiano, a board-certified civil-trial lawyer from Orlando.

Caggiano and Wallace said they offered to settle the case by accepting the doctors’ $2 million of insurance coverage. But the doctors and their attorneys refused, Caggiano said.

Jurors found Desai 33 percent at fault and Otegbeye 59 percent at fault. The remaining 8 percent was blamed on Children’s First Home Health Care, which provided home nursing services for Nathan.

Caggiano said the claim against Children’s First was resolved before the trial, so that portion of the $30 million award won’t apply.

He also said he had contacted the Florida Jury Verdict Reporter, which documents large jury verdicts. The Reporter indicated that this appeared to be one of the state’s largest wrongful-death awards involving a minor, he said.

But he acknowledged that the award amount is likely to be appealed and called excessive.

Thursday’s verdict comes at a time when Florida trial lawyers have placed two proposals dealing with medical malpractice on the November ballot.

The first would give patients the right to review records of “adverse medical incidents” by doctors or health-care facilities. The second would require revocation of a doctor’s license after a third malpractice judgment.

But the Florida Medical Association, has also placed an amendment on the ballot attempting to cap attorney fees.

Scott McMillen, another malpractice attorney in Orlando, called the $30 million sum a “jumbo verdict” Friday. But he said that an Orlando jury in 2002 awarded a stunning $78.5 million in a medical-malpractice case.

“That was also awarded by a jury, and no money has been paid yet,” said McMillen, who has represented both hospitals and patients.

“This one is outside the normal size, but like in most jumbo verdicts, it will probably be reversed on appeal. The actually payment will at least be substantially discounted.”

McMillen was disappointed in the timing of this week’s award.

“Now voters in November will say, ‘This is outrageous. This is way too much. Let’s rein this in.’ ”

But Wallace said her lawsuit wasn’t about the money; it was about getting some kind of justice for her son and proving the doctors were wrong. “If it was possible, I wish they would lose their licenses,” Wallace said. “He died horribly. He just loved life. That’s what kills me.”