Failure To Perform Emergent Surgery

Date of Verdict/Settlement: April 29, 2010

Topic: Medical Malpractice – Endocarditis Diagnosis – Failure to Perform Emergent Surgery – Wrongful transfer of unstable patient in contravention of Federal Law – DEATH ACTION

Summary: Award Total: $3 million

RESULT (Settlement): The parties agreed to a $3 million settlement.

REFERENCE: Attorney for plaintiff: Victoria Wickman of Law Office of Victoria Wickman in New York, NY.

Facts: New York County, NY

This death action involved a 54-year-old patient who was a transit worker and the married father of three who visited the emergency room of a nondefendant hospital with a history of back pain of approximately one month duration as well as decreased urinary output, weakness and fatigue of several days’ duration. The plaintiff contended that although appropriate testing led to the timely and accurate diagnosis of endocarditis and a decision that emergency surgery was necessary, the operation was not performed and that the patient died at approximately 8 p.m. five days after he was first seen and some 12 hours after cardiac enzyme testing showed that the patient was suffering a cardiac infarct. The evidence disclosed that the patient first presented to the emergency room on Wed. Oct 19, 2011, and a correct diagnosis was made shortly thereafter. The patient was admitted, and antibiotics were administered. The decision was made that emergency cardiothoracic surgery was necessary, and since this initial institution did not have a cardiothoracic unit, the patient was transferred to the defendant hospital on Fri, Oct 21. The surgeon who was scheduled to perform the surgery was called into service because of two unrelated emergencies, and since the patient was then stable, a decision was made to transfer him to a second defendant hospital for expedited surgery. This transfer was done on Saturday morning. The plaintiff contended that upon arrival at this third hospital, a cardiothoracic surgeon lifted the order precluding food by mouth and recorded that he would not be having surgery over the weekend, but only monitored. The plaintiff asserted that although the patient remained stable over the weekend, his status changed dramatically by 8 a.m. Monday

The plaintiff contended that records reflected that his BP was 80/40, that he was complaining of chest pain that was 8 out of 10 and had increased respiratory rates and that his blood work showed abnormal cardiac enzymes. The plaintiff contended that the defendant nonetheless failed to bring the patient to the operating room, and the plaintiff pointed out that in addition to describing his signs and symptoms, the records also reflected that no intervention was contemplated at that time and that the patient would be transferred back to the second hospital. The patient was transferred back to the second hospital at approximately 3:30 p.m. on Monday. The plaintiff maintained that although the patient was then clearly in extremis, the defendants kept the surgery scheduled for Tuesday morning. The patient coded at approximately 7 pm on Monday and died as the defendants were scrambling to assemble an OR team for surgery. The plaintiff maintained that it was clear that the defendants failed to act appropriately and perform surgery that it previously realized was necessary. The plaintiff also maintained that the Monday transfer was in violation of federal law that precludes the transferring of unstable patients. The plaintiff would have contended that it was clear that the patient’s heart was slowly giving out and that the pain and suffering from 8 a.m. on Monday until his death that evening was extensive. The defendant contended that in view of the extensive damage to the heart valves caused by the endocarditis, it was doubtful if the patient would have survived, irrespective of the time of the surgery. The plaintiff’s expert cardiothoracic surgeon would have testified that although this was a difficult surgical case, it was more probable than not that the patient would have survived. The expert would have also maintained that if he survived, the patient would have fully recovered. The decedent was earning $75,000 per year. The plaintiff also maintained that since he generally worked from 7-3 and his wife, a nurse, had two jobs, he would usually be the primary caregiver to the three daughters, age 9, 12 and 14. The plaintiff would have argued that the loss of parental nurture and guidance was particularly profound. The case settled nine months after counsel became involved for $3 million.

COMMENTARY: The parties recognized early in the litigation that presenting this case before a jury would be likely to produce particularly strong results and a potentially excessive verdict. In this regard, counsel for the plaintiff relates that a recognition of this probability on the part of the Court was especially helpful and assisted greatly in the swift resolution of the matter. Further, it should be noted that in this death action, prejudgment interest of 9% would have been accruing from the time of the death.