Passion for justice compassion for people

Tell us about your case

Health-Care Industry, Heal Thyself

By LISA BELKIN

The Orlando Sentinel—July 27, 1997

Ben Kolb was scared when he arrived at Martin Memorial Hospital, in Stuart, Fla., in December 1995. This was to be the third ear operation on the seven-year-old Ben. His doctor wanted to remove scar tissue that was left from the prior surgeries, at ages 2 and 5.

So his mother Tammy, spent the time before surgery joking with her son, talking about soccer (he was the captain of his team) and Christmas (when he would be singing in the in the yearly pageant at school). By the time an orderly came to take the boy to surgery, he was calm.

"Give your mom a kiss," the nurse said, and he did.

"Have fun," his mother said, waving as he left.

Ben was given general anesthesia, and about 20 minutes later it took full effect. His surgeon was handed what everyone thought was a syringe of lidocaine, a local anesthetic, which reduces bleeding. He injected it inside and behind Ben's ear. Moments later, for no apparent reason, Ben's heart rate and blood pressure increased alarmingly. Dr. George McLain, an anesthesiologist on standby for emergencies, was summoned. McLain helped to stabilize the child, but a short time later, Ben's heart rate and blood pressure dropped precipitously. For an hour and 40 minutes, frantic doctors performed CPR on the boy, knowing it was futile.

More than a year later, the memories are fresh, and McLain sits at lunch, crying as he speaks. The other diners stare, but he makes no attempt to hide his tears.

How long would he have kept up the CPR?

"If it was my kid, I would want them to keep trying," he says. "I think we were never going to stop."

Ben's heart did begin to beat again, and he was transferred to Martin Memorial's intensive care unit. The surgeon, who knew Ben since he was a baby, we with McLain to talk to Tammy Kolb. "There has been a serious problem with your son," McLain remembers telling the woman. "His heart stopped. We had to restart his heart. He is extremely critical, in a coma-like state."

He winces at the memory: "You don't know how strong to be to get your point across. You want her to understand, but you can't stick a knife in her."

At first, Tammy Kolb did not seem to understand. "I know he's going to wake up just fine," she said.

"I don't," McLain said.

"I've seen this on TV. As soon as he wakes up I have a Christmas present for him. I brought it for him early," Tammy Kolb said.

Ben remained in a coma for nearly 24 hours. His parents and older sister remained at his bedside as their fog and denial slowly lifted. The next day, they agreed that his ventilator should be removed, and he was declared brain dead. As with the death of Jose Martinez, a lot can be learned by what happened after Ben Kolb died.

First, the hospital's risk manager, Doni Haas, had all the syringes and vials used on Ben, locked away, then sent to an independent laboratory for analysis. Second, Haas promised Ben's parents that she was going to find them an answer, if there was one."

There was. Tests showed that there had been a mix-up, a mistake, a human error in a system that made that error more likely. Ben Kolb, lab reports showed, was never injected with lidocaine at all. The syringe that was supposed to contain lidocaine actually contained adrenaline, a highly concentrated strength that was intended only for external use.

Procedure in the Martin Memorial operating room at the time was for topical adrenaline to be poured into one cup, made of plastic, and lidocaine to be poured into a cup nearby, made of metal. The lidocaine syringe was then filled by placing it in the metal cup. It was a procedure used all over the country, a way of getting drug from container to operating table. According to Richmond Harman, the hospital's C.E.O., "It has probably been done 100,000 times in our facility without error."

But it is a flawed procedure, the hospital learned. It allows for the possibility for the solution to be poured into or drawn out of the wrong cup. Instead, a cap, called a spike, could be put on the vial of lidocaine, allowing the drug to be drawn directly out of the labeled bottle and into a labeled syringe. The elimination of one step eliminates one opportunity for the human factor to get in the way.

Haas received the lab results three weeks after Ben died. The family had hired and attorney by then, and Haas and McLain drove two hours and met with the Kolbs at Krupnick, Campbell, Malone, Roselli, Buser, Slama & Hancock.

"It was very unusual," says Richard J. Roselli, one of Florida's most successful malpractice lawyers and the president of the Academy of Florida Trial Lawyers. "This is the first occasion where I ever had a hospital step forward, admitting their responsibility and seeking to do everything that they can to help the family."

A financial settlement was reached by nightfall, but neither side will confirm the amount paid to the Kolbs.

After the papers were signed, the family asked for a chance to talk to the doctors at the hospital. The first thing Ben's father, Tim, did when he entered the emotion-filled room was to hug his son's surgeon. Then came the torrent of questions, questions that had kept the Kolbs awake at night, questions they might never had been able to ask had the case spent years in court.

Was Ben scared when his heart rate started dropping? Was he in pain? How much did he suffer?

The doctors explained what the Kolbs did not know, that Ben had been put under general anesthesia long before anything went wrong.

"The decisions I made for him were the same I would have made if it were my child," McLain said.

Would the hospital promise to spread the word about how Ben died, so that the procedure in question could be changed in other places?

Haas promised.

With that, the Kolb case was closed, but it wasn't over. Tim Kolb still coaches his son's soccer team. The family still grieves.

The doctors in the operating room that day still have nightmares of their own. "I let that child's life slip through my fingers," McLain says. "They tell me there was nothing I could do. I know there was nothing I could do. But it's like I was a lifeguard and he died on my watch. There must have been something."

And the lawyers at Krupnick, Campbell are still searching, too.

"We're not done with this yet," Roselli says. Why, he asks, was it possible to mix up the lidocaine and the adrenaline? Did the two bottles look alike? "We're still investing the product liability aspect of it," he says. "The questions of packaging and labeling."

Area of practice
$22 Million Aviation Accident Settlement more
$8 Million Auto Accident Settlement more
$8.1 Million Premises Liability Settlement more