Case Results
Gordon & Silber Obtains Defense Verdict for Infectious Disease Doctor in Wrongful
Death Case Alleging Failure to Diagnose Fungal Infection December — 2008.
Type of Case: Wrongful Death, Medical Malpractice. Failure to Diagnose Fungal
Infection.
Venue: New York Supreme Court, Kings County.
Background Facts: On January 20, 2002, the 74 year old decedent presented with
complaints of shortness of breath and a past medical history of asthma, non-insulin
dependent diabetes and obesity. She was initially treated with steroids for her COPD and
later with antibiotics, when bronchitis was identified. The decedent developed
pneumonia, and a sputum culture grew out Methicillin Resistant Staph Aureus
("MRSA"). The patient's care was managed by co-defendant internist, who requested a
pulmonary consult from another co-defendant. The assured, an infectious disease expert
was asked to render consult and continued to be involved in her care until she left the
hospital against medical advice on February 18, 2002. The decedent was subsequently
admitted at another hospital where she developed metabolic alkalosis and hypoxemia and
died on February 22, 2002. An autopsy revealed her lungs showed multiple abscesses
and large areas of necrosis with angioinvasive fungal forms consistent with aspergillosis,
colonies present in the esophagus, stomach, rectum, kidneys, adrenals and thyroid gland.
Plaintiff alleges that an earlier diagnosis would have resulted in a CT scan of the lungs
and/or a lung biopsy which would have provided a greater opportunity to save the
decedent's life.
Special Problems: Our assured testified he considered aspergillosis as part of a
differential diagnosis, but never formally diagnosed it nor was his consideration ever
documented. The trial judge would not allow the admission of the subsequent hospital
records which would have allowed the jury to see that aspergillosis was not timely
diagnosed there either.
Our Strategy: We argued that none of the several sputum cultures taken of the patient
during her hospitalization showed aspergillosis, other than the final culture which isolated
a mold but had to be sent outside the hospital in order to identify it as aspergillosis, by
which time the decedent had been dead for a week. Our infectious disease expert
explained to the jury that aspergillosis is extremely difficult to diagnose because it has
very subtle risk factors, and is so rare that most doctors, even those that specialize in
infectious diseases, do not see it during the course of their careers. He also testified that
once aspergillosis becomes invasive, a patient has an 80 percent chance of dying even
with medication, which is itself extremely harmful to the kidneys and so is not
administered lightly. We further argued that it was not until approximately 24 hours
before her death that she began to show any clinical signs of a possible fungal infection.
Our expert further testified that the decedent had a 30 percent chance of dying from
MRSA alone.
Result: The jury returned a defense verdict finding no departure.
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