Case Results
Gordon & Silber Obtains Dismissal During Trial of Doctor in Wrongful Death Case Alleging Failure to Diagnose and Treat Pulmonary Embolism and Deep Vein Thrombosis February — 2009.
Type of Case: Wrongful Death, Medical Malpractice. Failure to Treat Pulmonary Embolism and Deep Vein Thrombosis.
Venue: New York Supreme Court, Queens County.
Background Facts: In February 2002, the decedent was admitted to the hospital after presenting with shortness of breath and chest pain. She was subsequently diagnosed with pulmonary emboli and varicose veins for which she was treated with anticoagulation therapy. She was discharged home seven days later. She returned to the hospital on the day of discharge complaining of fever and malaise and was readmitted. She expired nine days later after suffering a saddle embolism.
Our client, served as a hematology consult during both of the decedent's admissions. During the first admission, he was asked to assess the decedent's condition to rule out a hyper-coaguable state. He determined that further hyper-coaguable work-up was not required. During the decedent's second admission, he was asked to determine if the continuation of anti-coagulation medication was warranted. The decedent's overall care was managed by the attending physicians, in conjunction with other specialists.
Claimant's Theories: Plaintiffs claimed that our client failed to perform a complete and thorough initial physical examination and failed to heed the significance of her thrombosed varicose veins and complaints of left calf tenderness. That he failed to communicate to the attending physicians the possibility/likelihood of a pulmonary embolism. That as a hematologist, he failed to ensure the decedent was properly and fully anti-coagulated and failed to sufficiently monitor the decedent's PTT/INR levels. That he failed to timely and properly diagnose and treat the decedent's new pulmonary embolism. That he incorrectly concluded during the second admission, her previous thrombosis had dissolved, when in fact it had traveled to her lungs resulting in the embolism which caused her death. Finally, plaintiffs claimed that our client failed to ensure a timely placement of a Greenfield filter which would have prevented the pulmonary embolism that caused her death.
Plaintiffs also asserted claims against the decedent's primary care and attending physician, the covering physician for plaintiff's primary and attending physician, the pulmunologist, and the hospital for its residents and interns' roll in delaying the placement of the filter and for failing to timely read and report the results of the Doppler testing.
Special Problems: We anticipated plaintiff's expert putting in a case against our client for allowing an insufficient period of overlap of Heparin and Coumadin therapy as well as for the period of time he took her off Coumadin and administered Vitamin K leaving the decedent in a state wherein she was not adequately coagulated and susceptible to the formation a new clot.
Our Strategy: At trial argued 1) that our client's initial consultation was merely to comment on whether the decedent was pre-disposed to the development of pulmonary embolism; 2) that he appropriately recommended three months of coumadin therapy and vascular surgeon referral for further evaluation and treatment of her varicose veins; 3) that there was no evidence to indicate the decedent had a deep vein thrombosis during her initial admission; 4) that it was not the role of the consulting hematologist to monitor the administration of the medication and her DVT which was the job of her primary attending; 5) that our client was not responsible for her initial discharge; 6) that his second consultation was for the limited purpose of determining whether continued anticoagulation medication was warranted; and 7) the decision of whether and when to insert a filter into the patient was not within the purview of a consulting hematologist.
When plaintiff's expert took the stand he was nonspecific when he asked what our client should have done to ensure that the filter placement be performed. As a result, the judge sustained every objection thereafter when plaintiff attempted to place this departure against our client. Plaintiffs attempted to get the departure in by reading deposition testimony and then asking his expert to assume certain facts. However, we continued to object on the basis that plaintiff's expert admission that he had not read the deposition of our client in forming the basis of his opinion. Thus, we argued that no question could be formulated using prior deposition testimony. The court agreed and sustained these objections. Although plaintiffs tried establishing a departure by other means, he never obtained a clear statement from his expert as to any departure. Thus, we made a strategic decision not to ask any questions on cross, to avoid opening the door to having the expert provide the departure on cross examination.
Result: We made an oral application for dismissal of the case for plaintiff's failure to make out a prima facie case against our client, which the court granted with prejudice. The case proceeded against the other defendants on March 6, 2009 and culminated in a $3 million verdict.
|