In the Medical Malpractice arena, Plaintiffs routinely face an uphill battle. From inception, the defendants always seek to limit our claims, and create defenses in hope of proving that the conduct of the doctor/hospital/staff was within the accepted Standard of Care. When all discovery is complete, we find that defendants and their counsel are making Summary Judgment motions. A motion for Summary Judgment is a motion before a trial that is made before the assigned Judge. The defendant submits legal papers and expert affidavits stating that based upon all the evidence the Court should dismiss the case as Plaintiff can not prove that the case has meritorious arguments and should go before the jury.
The Plaintiff’s bar face these motions more and more frequently. We vigorously oppose these motions with our own experts and affidavits.
This past month, the Medical Malpractice Unit at Leav & Steinberg, LLP was successful in defeating two motions for Summary Judgment on significant cases.
CASE #1: WRONGFUL DEATH FAILURE TO DIAGNOSE EMBOLISM
The first case involved allegations that during plaintiff’s decedent JOSHUS BLAU’s two admissions to the emergency room of GOOD SAMARITAN on November 3, 2012 and November 4, 2012, the defendants negligently failed to timely diagnose and treat decedent’s pulmonary embolism. As a result of this negligent treatment, as spelled out in detail below, decedent JOSHUA BLAU, at the age of twenty-seven (27) years old, suffered a fatal cardiac arrest secondary to multiple bilateral pulmonary infarcts due to pulmonary thrombo-emboli due to deep venous thrombosis of the left lower extremity
It is alleged, and the records document, that decedent was suffering from the effects of deep vein thrombosis of the left lower extremity and the progression of multiple bilateral pulmonary infarcts when he arrived at the emergency room of defendant GOOD SAMARITAN at approximately 6:30 PM on the evening of November 3, 2012.
After being seen and treated by the emergency room staff, which included the ordering and interpretation of an abdominal CT scan, decedent was released with a diagnosis of pneumonia. No further work up or testing was instituted.
After a re-reading of the November 3, 2012 CT scan, decedent was called back to the emergency room the following day for further work up to rule out pulmonary emboli, among other potentially life threatening conditions. Decedent returned to the emergency room as directed and underwent a CTA on November 4, 2012. Following the CTA procedure and interpretation by Dr. Hertford, Dr. Hertford testified that he called the emergency room and spoke to defendant EVANS, the physician’s assistant who was treating decedent in the emergency room. Dr. Hertford testified that the CTA contained worrisome findings and he recommended to defendant EVANS that further testing should be performed to rule out, among other possible conditions, a pulmonary embolism
The record documents that decedent, unfortunately, was discharged a second time from the emergency room with no further testing or work-up. Decedent thereafter died at home on November 5, 2012 from the effects of a pulmonary embolism.
The defendants argued that the defendants had read the films correctly and could not have done anything else that would have avoided the unfortunate untimely death of the decedent. The court found that Plaintiff had clearly raised issues of fact and that Plaintiff’s experts had shown by sworn affidavits that the Defendants should have known of the decedent’s deteriorating condition and would have had to treat him differently under the present Standard of Care. Thankfully, after this decision, the Plaintiff will have their day in Court and be able to present this case to a Jury.
CASE #2: FAILURE TO PROPERLY MONITOR AND TREAT A PATIENT WITH PSYCHOLOGICAL CONDITIONS
The second case involved a woman, who was undergoing psychiatric treatment by a doctor between February, 2011 and May 29, 2013 (the date of Plaintiff’s attempted suicide), defendant DOCTOR negligently misdiagnosed and negligently treated her psychiatric condition. It is alleged that Defendant DOCTOR negligently misdiagnosed Plaintiff’s psychiatric condition as bipolar disorder, when in fact, she was paranoid schizophrenic. It is alleged that the defendants’ treatment aggravated her condition and was a substantial causative factor that led to Plaintiff attempting suicide on May 29, 2013 by causing a gas explosion at her home.
Furthermore, it is alleged that Defendant DOCTOR treated Plaintiff with an inappropriate and ineffective medication regimen of Seroquel in improper and excessive doses for an inordinant period of time. It is alleged that Defendant DOCTOR negligently continued to increase the Seroquel dosage to 700 mg a day without proper, close monitoring and without any evidence that it was having a positive effect, thereby exacerbating her condition. It is alleged that his negligent long term monotherapy with Seroquel resulted in her developing elevated liver enzymes. It is alleged that upon learning of her elevated liver enzymes, Defendant DOCTOR negligently directed Plaintiff to completely stop her Seroquel medication regimen, leaving her without any medication to treat her condition. Plaintiff became increasingly erratic in her mental behavior exhibiting increased paranoid delusions that led to her attempted suicide. It is alleged that Defendant DOCTOR negligent psychiatric treatment was the proximate cause of Plaintiff’s suicide attempt resulting in catastrophic burns to over 75% of her body.
The court found that Plaintiff had through the submission of admissable evidence including affidavit’s of expert doctors created triable issues of fact as to whether Defendant DOCTOR had departed from the good and accepted standards of medical and psychiatric care during his treatment of Plaintiff. As such, Plaintiff will now be permitted to have a Jury decide whether the doctor should be held responsible.