Jury selected in malpractice suit Monday

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JANE STEBBINS
summit daily news
January 24, 2005

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BRECKENRIDGE - A Silverthorne man is asking a jury to find a former Frisco doctor guilty of negligence in the death of his wife and unborn baby girl almost five years ago.

The medical malpractice case against Dr. Patricia Duletsky began Monday in Summit District Court and is expected to last 13 days.

The plaintiff, Rob Small, is asking for $1.5 million in damages for the pain and suffering he incurred from the loss of his wife, Susanna Martens, and their unborn baby.

Martens was 36-and-a-half weeks along in her pregnancy when she became ill, developing a fever, diarrhea and vomiting in the evening of March 14, 2000, court documents say.

Normal pregnancies last 40 weeks before birth.

The suit alleges Martens suffered from a bacterial infection of her uterus, and Duletsky failed to diagnose it when Martens saw her first in her office and later that night at the Summit Medical Center.

According to court documents, Small drove his wife to Duletsky's medical office in Frisco, where the doctor said Martens had the flu, gave her some anti-nausea medicine and sent her home.

Martens, then 39, still felt ill, the lawsuit contends, and fearing the illness would bring on an early delivery, the couple called Duletsky at the Summit Medical Center where she was working later that evening.

Martens checked into the clinic to see the doctor who had helped her deliver her other daughter, Shannon, now 6.

Small's attorney, Hollynd Hoskins of Leventhal, Brown and Puga of Denver, said the symptoms were all indicative of a bacterial infection, but Duletsky allegedly failed to call in another obstetrician or nurse.

The nurse who was monitoring Martens is expected to testify that she wasn't experienced in attaching fetal heart monitors, and kept giving the patient Tylenol to keep the fever down, Hoskins said. The nurse, at the time, was concerned about Martens' 103-degree temperature despite the Tylenol.

When Martens' condition was stabilized around midnight, she told her husband to go home, but doctors summoned him back at 1:30 a.m., saying his unborn baby - to be named Sara - was dead and Martens was in critical condition.

Less than an hour later, Martens died of cardiac arrest.

The plaintiffs will argue that the cardiac arrest was brought on by a drug given to Martens that stops contractions, but whose side effects include pulmonary edema. That, combined with the infection, caused the cardiac arrest, according to court papers and Hoskins.

The defense will likely argue that Martens died from an abnormal heart condition that's not usually diagnosed until an autopsy and that was exacerbated by the infection, Hoskins said.

Neither Duletsky nor her attorney, Paul Cooper of Cooper and Clough of Denver, were available to comment after the first day in court.

An ensuing autopsy of Martens determined that she was suffering from a strep A infection in her uterus.

Duletsky was licensed as a family practitioner in July 1986 and left Summit County shortly after the incident. She now practices in Salida.

This is not the first time Duletsky has been under the spotlight for patient care. She was admonished by the Colorado Medical Board in connection with the deaths of two other women and their unborn babies in 1997 and in January 2000.

The medical board said if Duletsky had another such incident, it would consider revoking her medical license, which expires this year.

Four men and three women in the jury box are scheduled to hear testimony for the next 13 days. Before going into deliberations, presiding Judge Terry Ruckriegle will dismiss one, and six people will decide the fate of the case.

The seven were culled from more than 250 prospective jurors in a process that took all day Monday.

Because it is a civil case, the plaintiffs will merely have to prove there is a "preponderance of evidence" pointing "more likely than not" to Duletsky's negligence.

That compares to a criminal case, in which the prosecution must prove "beyond a reasonable doubt" that someone is guilty of a crime.

Hoskins also must prove that Duletsky failed to operate with reasonable care and under standards of care accepted in the medical field.

Throughout the jury selection, Duletsky, a trim, short-haired woman, studied the 17 prospective jurors in the jury box, often resting her index finger against her mouth and consulting with her attorney.

Dozens of experts are scheduled to be brought to the stand, including pathologists, obstetricians, nurses who were at Summit Medical Center that night and infectious disease doctors, among others.

Issues likely to be brought up during the trial include whether the 6.6-pound baby could have survived outside the womb at 36- to 36-and-a-half weeks along and if it was the disease and not the doctor to be blamed for Martens' death.

Some jurors indicated their discomfort at being asked to place - if Duletsky is found to be guilty - a monetary value on an infant that hadn't yet been born.

State statutes, however, say the survivors can sue for the emotional pain and suffering brought on by the death of an unborn baby, said Ruckriegle, the chief judge for the 5th Judicial District, which includes Summit County.

Ruckriegle dismissed two prospective jurors who said they could not abide by the law that would award money in the baby's death because they disagreed with it in principle.

Other issues that could come up include the accepted medical standard of care and whether antibiotics should have been issued immediately instead of waiting for clinical results of the tests.

The case was to continue today at 9 a.m. at the Summit County Justice Center on Airport Road.



Jane Stebbins can be reached at (970) 668-3998, ext. 228, or jstebbins@summitdaily.com.