Marietta Avetisian passed away from kidney transplant complications in 2000. Photo courtesy: Frank A. Delle Donne

After a month-long medical malpractice trial, a Brooklyn jury has awarded $5 million to the estate of a woman whose hospital and surgeon failed to diagnose an ongoing—and ultimately dangerous and damaging—urine leak that first developed during her 1999 kidney transplant operation.

According to one of the trial attorneys, the woman, Marietta Avetisian, died nearly a year and a half after the surgery, in 2000, due to a series of complications—including losing her new kidney and being forced back onto dialysis—that resulted from the urine leak going undiagnosed for weeks in 1999.

After immigrating to the United States and New York from the country of Georgia in 1992, Avetisian was only 39 when she died, according to one of the estate's two trial lawyers, Frank Delle Donne.

Earlier this month, on July 17—nearly 18 years after her estate's medical malpractice action was launched—a six-person Brooklyn Supreme Court jury handed down a liability verdict and the $5 million damages award in the estate's favor.

Delle Donne, a Monaco & Monaco senior associate, and his co-trial counsel, John Tumelty of Tumelty & Spier, had detailed for the jury how, from February 1999 until her July 8, 2000, death, Avetisian had suffered terribly due to the complications and loss of her transplanted kidney, Delle Donne said in a recent interview.

It appeared that those details had influenced the jury, as they returned a $5 million award for damages sustained by Avetisian for pain and suffering lasting from Feb. 9, 1999, to July 8, 2000, according to the trial's verdict sheet.

The defendants who remained in the case throughout the years—while some others were dismissed or settled out—were New York-Presbyterian Hospital/Weill Cornell Medical Center as successor to New York Hospital (the Manhattan hospital where Avetisian had her 1999 surgery), and the surgeon who performed the kidney transplant, Dr. William Stubenbord.

The lawyer for the two trial defendants, William Brady, a partner at Martin Clearwater & Bell in Manhattan, could not be reached for comment.

Delle Donne said, though, that Brady had informed him and Tumelty that the defense intends to file a post-trial motion challenging the verdict and damages. Moreover, the judge in the case and trial, Justice Lara Genovesi, had requested the parties to discuss damages at a settlement conference, which both parties intend to do, Delle Donne said.

Despite the jury's liability finding and award, its verdict was far from a clean sweep for the estate. In fact, the jury declined to find liability when it replied on the verdict sheet to two malpractice liability questions. (It did find liability, though, in regard to a third such theory and related question.)

Moreover, the jury rejected one causation theory relating to the type of malpractice it did say occurred. Specifically, the jurors—three men and three women—unanimously found that the defendants were liable for departing from accepted standards of medical practice by failing to diagnose, in a timely manner, Avetisian's urine leak after her transplant operation, which involved a cadaver kidney.

Then the jurors—this time, five out of six of them—said that malpractice had caused injury to Avetisian. (Five of six are needed under state law for a finding.)

But the plaintiff had also claimed at trial wrongful death, arguing that the hospital's and Stubenbord's departure from acceptable standards of medical practice regarding the urine leak ultimately caused Avetisian to die.

The five-member jury majority, though, found that such causation was not proven, answering “no” to that question.

Asked why the jurors may have found against causation of death, Delle Donne speculated that another Avetisian health problem may have been seen as a cause. Though he also said that he was not able to interview jurors after the trial.

According to Delle Donne, Avetisian had been taking anti-inflammatory medication for years—probably since before she came to the U.S.—because of arthritis, and physicians believed the drugs slowly killed her kidneys.

By 1996, he said, she reached end-stage renal disease and at some point after began dialysis treatments.

She went on a waiting list for a cadaver kidney, finally getting the call to come quickly to then-New York Hospital in February 1999 because one was available. The surgery must take place before the dead person's extracted kidney dies off itself.

It was during surgery, Delle Donne said, that a tube stitched to her bladder was not properly secured and, as a result, she began leaking urine into her body. A primary function of the kidneys is to clean blood and produce urine and keep people functioning and alive.

For more than three weeks after the operation, Avetisian continued to leak urine as the hospital failed to diagnose why—even failing to give her a planned follow-up sonogram at one point, according to Delle Donne.

Then during a March 1999 follow-up surgery, a doctor discovered the source of Avetisian's urine leak and corrected it. By that point, though, the urine had caused Avetisian to develop a dangerous and painful fungal infection of an abdomen organ sack, according to Delle Donne. And an antifungal medication treatment for that condition later killed the new kidney, he said.

Avetisian then went back onto dialysis, he said, while still in great pain, and died about a year later.

Delle Donne, who's been working the case since 2009, expects for all or most of the damages award to be paid to the estate and then to Avetisian's children.

The case—twice long delayed because of bankruptcies by a defendant, St. Vincent Hospital, that later settled—was hard-fought and gratifying, according to the veteran litigator.

“I think the urine fluid leaking from the wound that they [the hospital and surgeon] didn't investigate, and the failure to do a follow-up sonogram on the pelvic fluid, were key considerations in the jury's verdict,” he said, though it was only his best guess, he noted.

Tumelty, who handled opening and closing arguments and the examination of some witnesses, “was able to present the evidence to the jury in an understandable and comprehensible fashion, allowing the jury to focus on failures to do certain tests or to investigate the leaking fluid,” he added.

In the end, he said, emotions ran high as Avetisian's half-sister, Irene, looked on from the gallery and the jury read aloud the verdict.

His voice growing quiet as he choked up slightly, Delle Donne recalled how Irene came up to him and Tumelty in court and hugged them and thanked them. Her eyes welled with tears, he said.