Jurors Assess Florida’s “Three-Strikes” Rule on Doctors, Award $38.5 Million Verdict

A 33-year-old father of two was left in a vegetative state after undergoing a controversial “Manipulation Under Anesthesia” in December 2008.  Two South Florida doctors were assessed career-threatening “strikes” as a result of jury deliberations stemming from this incident.

Manipulation Under Anesthesia (MUA) is a procedure performed by both a medical doctor and a chiropractor, with the anesthesia being administered by an anesthesiologist. This procedure is used to break up scar tissue (adhesions) by vigorously flexing or stretching the body to treat pain and stiffness, which would be too painful without anesthesia. MUA only takes about 15 minutes to perform. The procedure is 75 percent stretching and 25 percent manipulation, performed under anesthesia. Stretching the patient while sedated breaks up scar tissue in and around muscles, discs and connective tissues. It is thought that the scar tissue prevents patients from improving with chiropractic or physical therapy treatments.

This is the first such verdict in Florida since the voters passed the “Three-Strikes” amendment to the Florida Constitution in 2004.  The jury awarded more than $28.5 million to the Lauderdale Lakes man and another $10 million to the man’s two young daughters.

In 2004, Florida voters passed Amendment 8, which calls for the termination of a doctor’s medical license if found guilty of “Three Strikes,” or three incidents of medical malpractice.

During the controversial procedure, which it is alleged Whyte never needed nor met the criteria to undergo, the anesthesiologist failed to heed the monitors warning of problems with Whyte during the procedure. Those problems resulted in loss of oxygen to his brain, cardiac arrest and permanent brain injuries.

Dale Whyte, 37, never awoke after going into cardiac arrest while undergoing the procedure at the Atlantic Surgical Center on December 4, 2008.  He is left in a vegetative state.  Whyte was a patient of Dr. Basil Mangra and Dr. Thomas Rodenberg administered the anesthesia for the procedure at the outpatient center. Whyte was an overweight diabetic who suffered from sore legs.

During the month-long trial, Dr. Mangra admitted for the first time, that the procedure should not have been performed on Whyte, and as a result, Dr. Rodenberg’s medical license has been suspended.

The jury found by “clear and convincing” evidence that both doctors were negligent, which called for the application of “strikes” against both doctors. Whyte’s lawyer considers this verdict a “victory for patient safety,” and plans to immediately bring this verdict in front of the Florida Board of Medicine in hopes that they will act quickly for the safety of the public.

Dr. Rodenberg is accused of keeping inadequate and inaccurate medical records and failed to properly respond when Dale Whyte went into cardiac arrest at the outpatient center in 2008.  It was reported by the Department of Health that Rodenberg refused to acknowledge anything was wrong, even as nurses came streaming into the operating room. The monitors sounded the alarms, but it was alleged that Rodenberg twice turned them off.

A third defendant, Dr. Steven Brown, was not held responsible in Whyte’s case.

Whyte’s family said he had had no serious pain before his MUA, just aches. Before a chauffeur came to take him to the Atlantic Surgical Center in Pompano Beach on December 4th, Whyte said his doctor, Dr. Basil Mangra, just wanted to test his legs.

According to records from the center, Dr. Rodenberg sedated Whyte while two practitioners, identified as ‘Dr. Brown and Dr. Petryk’ manipulated his legs, hips, spine, shoulders and arms while Mangra and five people learning MUA looked on.

Moments after doctors stretched Whyte’s neck, his heart rate plummeted, records show. No one knows why. He was deprived of oxygen and lost brain function. He still lies unresponsive in North Broward Medical Center.

Before trial, the family settled with other defendants. His mother and sister, as well as nurses, at their home in Lawrenceville, Georgia, are currently caring for Whyte.

“To see his kids grow up without a father is devastating,” said the girls’ mother Tina McGee, who was engaged to Whyte at the time of the procedure. That money could never replace having a loving father involved in their lives. They’d much rather have their father back.”

There are some who feel that MUA is often done needlessly and billed excessively.

Supporters of MUA say most patients improve dramatically. But many medical officials say there are some practitioners and surgery centers that view MUA as a profit center, performing it far too often and at times on high-risk patients and billing insurers as much as $50,000 for an hour of therapy over three days.

While no one tracks MUA deaths and complications, medical groups have linked the procedure to strokes and damage in blood vessels, the spine and nerves in some patients. Critics also say MUA has been done on patients with obesity, high blood pressure and other conditions that raise their risk for heart attacks and bad reactions to anesthesia.

“It’s absolutely unconscionable. They are doing it on almost anyone. It has really just become a method of billing for income,” said Charles A. Bender, former president of the New Jersey Chiropractic Board and a critic of MUA.

Even the leading supporter of MUA, Robert C. Gordon, a former Miramar chiropractor who travels the country teaching MUA, estimates that 20-40 percent of the cases are unnecessary, overbilled or done wrong.

“There are a lot of people out there abusing this procedure,” Gordon said. “Those of us who do this right are terribly, terribly upset with this. They make it hard for the rest of us.”

There are many patients who say MUA gave them their life back and call it miraculous.  As with any procedure, the doctor or surgical center must be experienced and in good standing before you take a chance with your life.

According to the SunSentinel, this was not Rodenberg’s first incident. In 2005, a 53-year-old woman died while under Rodenberg’s anesthesia treatment at Lakeland Regional Medical Center. He was fined and ordered to perform community service.

What do you think about Florida’s “Three Strikes” rule? If you do not live in Florida, do you wish that your state adopted a statute like this one? For more information, contact a Gacovino Lake attorney at 1-800-246-HURT (4878).

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