Pennsylvania court upholds $14.2 million malpractice verdict over abscess misdiagnosed as a brain tumor

by Charles Miller

Michael Rettger, then twenty-four years old, sought medical treatment after suffering sustained, severe headaches. Diagnostic imaging revealed a mass in the left side of Mr. Rettger’s brain, which doctors diagnosed as glioblastoma multiforme, an aggressive type of brain tumor, with a differential diagnosis of brain abscess. Thereafter, Mr. Rettger was transferred to University of Pittsburgh Medical Center Shadyside Hospital and commenced treatment with Dr. Eugene Bonaroti.

Dr. Bonaroti concurred in the earlier diagnosis of glioblastoma and retained the differential diagnosis of brain abscess. After a consult with a neuro–oncologist, who determined that Rettger’s condition was not amenable to his treatment protocol, Dr. Bonaroti scheduled Rettger for a surgical procedure to take place on November 19, 2003.

Pending surgery, Mr. Rettger was placed in a neurosurgical unit at the hospital and assigned as a patient to nurse Kirsten Stalder. On November 18, the day prior to the scheduled surgery, Rettger displayed uneven pupil size and experienced substantial pain, for which he received narcotic pain medications and an anti-seizure medication.

On November 19, shortly after 1 a.m., Nurse Stalder documented on Rettger’s chart that the pupil of his left eye was fixed and dilated, indicating escalating pressure on the brain which, if not treated on an emergency basis, could lead to brain herniation and, ultimately, death. The hospital’s policies included the imperative that a nurse invoke the nursing chain of command to obtain proper care for a patient if the attending physician failed to render such care or to call a “Condition C” to obtain immediate critical care for a patient whose condition appeared emergent.

Nurse Stalder’s notes indicate that she telephoned Dr. Bonaroti at home to report Rettger’s condition. However. Nurse Stalder’s account of the conversation differed sharply from Dr. Bonaroti’s. While Stalder asserted that she told Dr. Bonaroti that Rettger’s pupil was fixed and dilated, Bonaroti contended that she told him only that Rettger’s pupils were uneven, essentially indicating that his condition was unchanged. Dr. Bonaroti did not report to the hospital or order emergency treatment and Nurse Stalder did not invoke the nursing chain of command or call a Condition C.

Rettger’s condition continued to deteriorate until, at 6:00 a.m., both pupils were fixed and dilated. When Nurse Stalder telephoned Dr. Bonaroti on that occasion he indicated that he was on his way to the Hospital. Prior to surgery, Rettger lost consciousness and hospital personnel placed him on life support. Although Dr. Bonaroti conducted two emergency surgical procedures that day to relieve the pressure on his brain, Rettger never recovered consciousness and died within twenty-four hours.

Evaluation during surgery established that Rettger did not suffer from a glioblastoma but rather from a fast growing brain abscess and that as a result of inattention to his worsening condition, he had suffered brain herniation.

Mr. Rettger’s estate filed suit asserting causes of action for wrongful death and survival and alleging professional negligence by Dr. Bonaroti and hospital staff, among them Nurse Stalder. Following deliberations, the jury returned a verdict and awarded $2.5 million in damages for the wrongful death claim. However, the jury awarded no damages on the estate’s survival claim despite uncontroverted testimony that Mr. Rettger was a talented and ambitious young accountant who would have achieved the rank of partner at a national accounting firm or, in private industry, would become controller or chief financial officer.

A new trial was granted, limited to the question of damages on the survival claim. In the second trial, the jury awarded $10 million for income Mr. Rettger would have earned during his lifetime.

On appeal, the Superior Court noted that it had already determined, in an appeal following the first trial, that the uncontroverted evidence in the first trial established that if Rettger had been properly treated, he would have survived and been able to return to work as an accountant. Thus, the grant of a new trial was strictly to determine the amount of survival damages, not to allow the Hospital to claim that Rettger would not have recovered or been able to work as an accountant. Therefore, the court of appeals rejected complaints by the defendant that they should have been able to present evidence that Mr. Rettger’s condition would have limited his ability to work as an accountant even if the condition had been properly treated.

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by Charles Miller

Charles Miller is a licensed attorney and a partner at Heygood, Orr & Pearson. Charles focuses his practice on areas of complex commercial litigation and personal injury litigation.