Case Results
Gordon & Silber Wins Directed Verdict for a Hospital Alleged to Have Been Vicariously Liable for Failure to Diagnose Allergic Reaction Leading to Alleged Steven-Johnson Syndrome — July 2007.
Type of Case: Medical malpractice. Alleged failure to diagnose an allergic reaction leading to Steven-Johnson Syndrome.
Venue: New York Supreme Court, Queens County
Background Facts: In this medical malpractice action, the plaintiff presented to our assured hospital after a seizure. At her presentation, she was noted to have a rash and reported a history of allergies to Dilantin, a seizure medication as well as to Bactrim (sulfa). The co-defendant, an attending emergency room physician, determined the rash was secondary to the plaintiff's seizures. Therefore, co-defendant doctor did not cease ordering anti-seizure medications.
During the plaintiff's hospitalization, the rash worsened. The attending ordered a discontinuation of her medications and her condition subsequently improved. The plaintiff was discharged and was seen by a private attending doctor who continued to prescribe the anti-seizure medication phenobarbital. Plaintiff was later admitted to another hospital for treatment of Steven-Johnson Syndrome, a severe and potentially fatal condition that can be caused by an allergic reaction to medication. It was later determined that the plaintiff was allergic to Phenobarbital.
Plaintiff alleged the hospital and the treating physicians were negligent in continuing her on a course of Phenobarbital.
Special Problems: The plaintiff's rash was noted by EMS and the hospital nurses. The emergency room physician tesitified that he was aware of the rash when he saw the plaintiff for the first time and that he considered the rash to be a reaction to one of the anti-seizure medications. Notwithstanding, he failed to discontinue the phenobarbital or to a different anti-seizure medication.
Further, there was no written discharge instructions, other than a chart note, advising her to discontinue her medication. She was only instructed to see her primary care physician to get worked up. As a result, she continued to take phenobarbital.
Our Strategy: We presented an expert neurologist to testify that not discontinuing her anti-seizure medication immediately was not a departure. The first order of business was to control her life-threatening seizures. We also argued that the attending properly consulted with a neurologist, and his decision to discharge the plaintiff with instructions to see her primary care physician regarding her anti-seizure medication was reasonable in view of her improved condition.
Result: At the conclusion of the entire case, the Court granted our motion for a directed verdict on behalf of the hospital, on the grounds that plaintiff failed to establish any departure by the hospital. In addition, the jury's verdict absolved the treating hospital physician of any wrong doing, which had the effect of dismissing any claim of the hospital's vicarious liability as well. Plaintiff however, was successful in recovering against her primary care physician.
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