Thursday, July 18, 2013

Two Recent Wrongful Death Decisions with Dissents

Rose v. Conte:

In this wrongful death action based upon medical malpractice, the plaintiff alleged Dr. Conte deviated from accepted medical standards when he failed to order a CT scan or a gastrointestinal work-up in February of 2001 when plaintiff was complaining of pain and other abdominal symptoms.  As a result, plaintiff claimed that an abdominal tumor was not identified until March 2002, by which time the plaintiff was “deprived of the opportunity for a cure.”  When surgery was performed in May 2002, the tumor could only be partially resected leading, despite continued treatment, to the plaintiff’s death in September 2007.

At trial, the jury returned a verdict in favor of the decedent but the Supreme Court set aside the verdict and granted a new trial.  The First Department reversed, stating, “it cannot be said that the jury could not have reached its verdict upon any fair interpretation of the evidence.”  The First Department interpreted it as a “battle of the experts,” whose credibility is “peculiarly within the province of the jury.”

Judge Freedman, however, issued a dissent.  He argued that the verdict was against the weight of the evidence, especially since the decedent refused Dr. Conte’s advice starting from September 2001 to go for a full gastrointestinal work-up.  In addition, multiple experts called by the defense explained that the tumor was an extra-gastrointestinal stromal tumor (EGIST), which would not have been visible in February 2001 since it evades early detection and grows rapidly.  Judge Freedman also noted that plaintiff’s own expert, Dr. Singer, called the tumor an EGIST in expert disclosure but then changed his testimony for trial to claim the tumor was just a gastrointestinal stromal tumor (GIST), which is more easily detected sooner. 

Wilk v. James:

In this medical malpractice and wrongful death action, defendants allegedly failed to timely diagnose and treat plaintiff’s aortic dissection.  Plaintiff went to one of the defendant hospitals (Kaleida) on two separate occasions only two days apart, both times complaining of severe back pain.  While a CT scan with contrast would have allegedly led to an aortic dissection diagnosis, the doctors at Kaleida ordered no tests on the initial visit on February 13, 2004 and ordered only a CT without contrast on the second visit on February 15th.  Plaintiff subsequently visited another defendant, Mercy Ambulatory Care Center, in which the documentation incorrectly reflected the plaintiff’s condition, and completely omitted the fact that he was in the hospital twice in the previous two days for severe back pain.  On February 18th, the plaintiff returned to Kaleida with increased back pain and the inability to feel his legs.  With massive internal bleeding, he subsequently died on March 3rd.

Defendants moved for summary judgment, which the Supreme Court denied finding that “issues of fact” were raised by plaintiff’s expert affidavit.  After reviewing all medical records, plaintiff’s expert concluded that the doctor at Kaleida deviated from accepted medical practice by failing to take an accurate history, failing to pursue an aortic dissection as a differential diagnosis and failing to order a CT scan with contrast.  The expert stated that these departures were a substantial factor in the plaintiff’s injuries and eventual death, raising issues of fact regarding causation.  In addition, the expert opined that Mercy’s failure to accurately document plaintiff’s history and symptoms was a deviation from the accepted standards of medical care.  Neither hospital argued they were not vicariously liable for their doctors, so the defense forfeited those arguments.  The Fourth Department affirmed, explaining that the contradictory evidence “supports our conclusion that there is a clear issue of fact.”

Judge Peradotto dissented, arguing that the plaintiff’s expert affidavit’s were “conclusory and did not directly address or refute the prima facie showing in the detailed affidavits of defendants’ experts.”  In particular, Judge Peradotto took issue with the idea that the aortic dissection was present in the earlier hospital visits, as the death certificate listed the aortic dissection as occurring only a few days prior to the plaintiff’s death and nothing in the medical record indicated its presence prior to that.

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