April 19, 2014

Elyria
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13-year-old’s dental death settled for $1 million

ELYRIA — The insurance company representing Lorain dentist Henry Mazorow has agreed to pay nearly $1 million to the parents of 13-year-old Marissa Kingery, who died after intravenous sedation before dental surgery.

Kingery

Kingery

Marissa’s parents, Amber McEwen of Elyria and Jason Kingery of Sheffield Lake, each will receive $331,056, and their attorney Michael Czack will receive $318,000 and about $4,000 in expenses, according to documents filed in Lorain County Common Pleas Court on Thursday.

McEwen and Kingery declined to comment, but the child’s paternal grandmother, Judy Kingery, said she hopes that regulations about administering anesthesia to children will be changed to avoid future deaths.

“It just breaks our hearts,” Judy Kingery said of Marissa’s death.

Mazorow said that his insurer, CNA Insurance Company, settled the case against his wishes.

“If there was a settlement, it was not done by me, because I demanded an investigation,” Mazorow said.

Following Marissa’s death, Mazorow, 81, stopped giving intravenous sedation, and he agreed to retire Sept. 1 after consultation with the Ohio Dental Board.

The settlement documents stated that Marissa died on Jan. 3 from diffuse hypoxic-ischemic encephalopathy due to respiratory arrest caused by complications associated with intravenous sedation during the surgery, performed on Dec. 21, 2010, by Mazorow.

Hypoxic-ischemic encephalopathy is damage to the brain that also occurs in carbon-monoxide poisoning and many cases of shaken baby syndrome.

Marissa’s death was ruled accidental by the Cuyahoga County coroner. The coroner’s report stated that the drugs propofol — an anesthetic that was listed as a “contributing factor” in pop star Michael Jackson’s death — ketamine, remifentanil and Versed, or midazolam, were administered in Mazorow’s office to Marissa in what is commonly known as “twilight sleep,” or light sedation.

Court documents stated that Marissa “never regained consciousness” and was taken by paramedics to Mercy Regional Medical Center and later transferred to Rainbow Babies and Children’s Hospital in Cleveland, where she was on life support until her death.

Based on a “lengthy and comprehensive investigation into the facts” and consultation with experts, a wrongful death claim was made with Mazorow’s insurer, which retained counsel to oversee the claim, the documents stated.

The doctor and his practice have a $1 million liability insurance “wasting” policy, which means that the policy limits “waste” or are reduced with every dollar the insurance company spent on legal fees and case expenses, court records stated.

The settlement of $984,080 was reached “after extensive research, investigation, on scene inspections, measurements, videotaping and photographing and extensive discussions and negotiations,” the court documents stated.

The documents called it “a partial settlement,” and stated the estate will remain open pending a continued investigation into circumstances surrounding Marissa’s death and the potential for additional litigation against other parties or entities.

Czack did not return phone calls seeking comment.

The attorneys had sought to keep the settlement confidential, but Lorain County Probate Judge James Walther rejected the request, citing a 2004 Ohio Supreme Court decision in a similar case involving a child killed by a hockey puck during a pro hockey game in Columbus.

A television station had sought release of that settlement, which had been sealed by a judge, and the high court ruled 6-1 that a judge cannot create a new exception to the Ohio Public Records Act.

Walther asked attorneys in the Marissa Kingery case to cite any other cases to be considered in favor of sealing the records.

They did not respond, and the settlement documents were filed a short time later, he said.

An insurance company representing Mazorow previously settled another wrongful-death claim for $550,000, according to court records.

A Grafton woman, Rosemary T. Johnson, who was 57, died on Oct. 21, 1997, while having six teeth removed by Mazorow, according to the documents.

Records indicate that Johnson, a retired automaker and mother of five, had a reaction to halothane, a general anesthetic, and suffered a fatal cardiac arrhythmia.

The lawsuit filed by her husband, Craig, on behalf of her estate contended that Mazorow did not have a continuous EKG, which would have detected the arrhythmia, or a defibrillator, which the suit contended could have saved her life.

Two expert witnesses for her family, an oral surgeon and an anesthesiologist, supported the contention that Mazorow violated certain standards of care, according to court documents.

Contact Cindy Leise at 329-7245 or cleise@chroniclet.com.