| Lang v Newman |
| 2008 NY Slip Op 06615 [54 AD3d 483] |
| August 14, 2008 |
| Appellate Division, Third Department |
| Donna M. Lang, Respondent-Appellant, v James P. Newman et al.,Defendants, and Russell J. Firman, Appellant-Respondent. |
—[*1] Robert E. Lahm, P.L.L.C., Syracuse (Robert E. Lahm of counsel), forrespondent-appellant.
Rose, J. Cross appeals (1) from an order of the Supreme Court (Rumsey, J.), entered April18, 2007 in Cortland County, which, among other things, denied defendant Russell J. Firman'smotion to set aside the verdict, and (2) from a judgment of said court, entered April 23, 2007 inCortland County, upon a verdict rendered in favor of plaintiff.
Plaintiff commenced this medical malpractice action against, among others, two emergencymedicine physicians who treated her at the Cortland Memorial Hospital emergency departmenton the morning of January 14, 2003. Triage assessment notes from that morning indicate thatplaintiff's chief complaint upon arriving at the hospital was numbness in her left hand. She wasinitially treated by defendant James P. Newman, whose notes report that, in addition to left handnumbness, plaintiff complained of slurred speech, some left facial drooping which he was unableto detect, a headache which developed after her arrival, and decreased [*2]sensation to light touch of the left hand and foot. He also noted thatplaintiff had a history of migraine headaches. Newman promptly ordered a CT scan of the brain,which did not conclusively rule out a bleeding stroke, and ordered medication shortly before 7:00a.m. for plaintiff's pain. As of 7:00 a.m., when plaintiff was transferred to the care of defendantRussell J. Firman, Newman had made no definitive diagnosis of her condition.
While under Firman's care, plaintiff complained of continued nausea, significant head painsurrounding her right eye, left hand numbness, an inability to complete sentences and left sideweakness. Firman reported that he performed a routine neurologic examination, which includedassessing plaintiff's cranial nerves, cerebellar functions, speech, motor strength and sensation,and noted no abnormalities. He then ordered pain medication for her headache. According tomedical records and trial testimony, between 9:00 a.m. and 10:30 a.m. plaintiff's conditionimproved, her pain resolved and she had no neurologic deficits or difficulty speaking. Afterdeclining a lumbar puncture recommended by Firman to exclude the possibility of bleeding inher brain, plaintiff was discharged at 10:45 a.m. with a diagnosis of an acute migraine headache,a condition which can exhibit stroke-like symptoms. An MRI ordered later that same day byplaintiff's primary care physician revealed an infarct, an area of dead tissue caused by a lack ofoxygen. Following plaintiff's admission to another hospital where further testing was performed,her condition was diagnosed as an ischemic stroke.[FN1]Plaintiff was discharged three days later.
The gist of plaintiff's complaint against both Newman and Firman was that each had beennegligent in failing to diagnose her stroke, in failing to perform complete and proper physical andneurological examinations, and in failing to administer thrombolytic agents such as aspirin,Heparin or Lovenox. With respect to Newman only, plaintiff also alleged that he was negligent infailing to administer a particular thrombolytic agent, namely, tissue plasminogen activator(hereinafter TPA). With respect to Firman only, plaintiff also alleged that he was negligent indischarging her that morning rather than admitting her for observation. Plaintiff's primary theoryof liability concerning Newman's failure to administer TPA, a drug which must be administeredwithin three hours of the onset of a stroke, was seriously undermined at trial by proof that thosethree hours had passed before Newman saw plaintiff. As a result, the jury's verdict completelyexonerated Newman.
With respect to Firman, the jury found no deviation from reasonable medical care in hisexaminations of plaintiff or in his failure to administer a thrombolytic agent such as aspirin,Heparin or Lovenox. In addition, while the jury found a deviation in Firman's failure to diagnosethe stroke, it found this deviation not to be a substantial factor in causing injury to plaintiff. Theonly deviation found to be a substantial factor in causing injury to plaintiff was her prematuredischarge from the hospital. The jury went on to award $300,000 in damages for plaintiff's pastpain and suffering, but declined to award any future damages. After Firman's unsuccessfulmotion to set aside the verdict and plaintiff's unsuccessful cross motion for an additur for futurepain and suffering, these cross appeals ensued.
We cannot agree with Firman's argument that the record wholly fails to support the jury'sconclusion that his deviation in discharging plaintiff without admission to the hospital for [*3]further observation was a proximate cause of her injury. The jurywas asked, "Did defendant Russell Firman deviate from reasonable medical care by failing toadminister thrombolytics such as aspirin, [H]eparin or [L]ovenox to [plaintiff]?" The juryanswered "NO" to this question, but then answered "YES" to the next two questions: "Diddefendant Russell Firman deviate from reasonable medical care when he discharged [plaintiff]from the emergency department?" and "Was Russell Firman's deviation from reasonable medicalcare in [the prior question] a substantial factor in causing injury to [plaintiff]?"
Contrary to Firman's contentions with respect to the first question, we cannot agree that thejury necessarily credited the defense experts, who testified that no thrombolytic treatment wasthen appropriate, in finding that Firman's failure to administer thrombolytic agents to plaintiffwas not a departure from reasonable medical care. There is no inescapable implication that thejury exonerated Firman's failure to administer such agents only because it believed that theiradministration would have provided no benefit. Instead, the jury very well could have reasonedthat the failure to administer the agents in the emergency room was not a deviation because anischemic stroke had not yet been diagnosed and, thus, treatment for such a stroke was not yetmedically indicated.[FN2]The jury did not have to find that the defense experts had established that these thrombolyticagents are ineffective or not medically recommended in order to answer this question the way itdid. In fact, the first defense expert, Joel Bartfield, never opined that these thrombolytic agentsare ineffective or contraindicated to prevent additional damage after an ischemic stroke. Whenasked on direct examination what medical professionals had done to treat such strokes before theapproval of TPA by the Food and Drug Administration in the 1990s, Bartfield testified that someneurologists would start the patient on Heparin. He then switched to the present tense, addingthat Heparin "is not as powerful a blood thinner as [TPA], but it prevents more blood clots fromforming." He continued by stating that "[a]spirin is also typically used by most neurologists aswell." Later, during cross-examination, Bartfield again stated in the present tense that agents suchas Heparin and Lovenox "do decrease the likelihood of clot formation," and that a clot is apossible cause of an ischemic stroke. Thus, Bartfield did not restrict his testimony as to thebeneficial effect of Heparin and similar agents to the protocol used before TPA was approved.Rather, his testimony acknowledged a medically recognized effect of such treatment thatsupports the jury's implicit finding that plaintiff would have benefitted if she had stayed in thehospital, been diagnosed with a stroke and treated with a thrombolytic agent.
It was only the second defense expert, James Storey, who opined on cross-examination that,while it was common practice to give Heparin for an acute stroke in the past, the data currentlyindicates that this thrombolytic agent "not only [does] not improve the outcome of acute [*4]stroke, but actually increase[s] the risk of hemorrhage" as reflectedin a practice advisory issued in 2004. However, Storey did not state that such agentwould not decrease the likelihood of further clot formation in patients with ischemic stroke, andhe admitted on cross-examination that his Web site includes information that aspirin mayimprove the outcome of a stroke.
Nor can we agree that there is no evidentiary support for the jury's finding that Firman'sdischarge of plaintiff without further observation and treatment caused her injuries to be worse.To support the jury's finding of proximate cause, there need only be some expert evidence thatplaintiff's injuries would have been less severe if a thrombolytic agent had been administered toher following admission to the hospital and diagnosis of a stroke. As Supreme Court correctlynoted, plaintiff's doctor, Allan Hausknecht, supplied that evidence. Hausknecht opined that ifplaintiff had been admitted to the hospital for 24 hours of observation, rather than discharged, itwould have become clear that she had suffered an ischemic stroke and she would have beengiven Heparin or Lovenox.[FN3]Inasmuch as he also opined that timely admission and treatment would have made the effects ofthe stroke less severe, there was expert evidence of a causal connection between Firman's failureto admit plaintiff and her injury (see e.g.Flaherty v Fromberg, 46 AD3d 743, 745 [2007]; Turcsik v Guthrie Clinic, Ltd., 12 AD3d 883, 887 [2004];O'Connell v Albany Med. Ctr. Hosp., 101 AD2d 637, 638 [1984]). Accordingly, uponviewing the evidence in the light most favorable to plaintiff (see e.g. Cramer v BenedictineHosp., 301 AD2d 924, 928-929 [2003]), we find that there is a valid line of reasoning andpermissible inferences supporting the jury's conclusion that it was a deviation for Firman to failto admit plaintiff to the hospital for further observation, and that this deviation contributed to theinjuries she sustained as a result of the stroke. Also, given that Hausknecht opined, and Bartfieldimplied, that administration of a thrombolytic agent can have a beneficial effect after an ischemicstroke, while only Storey denied the appropriateness of such treatment, it cannot be said that "theevidence so preponderate[d] in favor of the [defendant] that [the verdict] could not have beenreached on any fair interpretation of the evidence" (Biello v Albany Mem. Hosp., 49 AD3d 1036, 1037 [2008] [internalquotation marks and citations omitted]; see Cramer v Benedictine Hosp., 301 AD2d at930).
Turning to Firman's remaining arguments, we find that the issue of whether there areinconsistencies in the verdict was not preserved for our review (see e.g. City of Binghamton v Serafini,8 AD3d 835, 837 [2004]), and that the damages awarded to plaintiff were neither speculativenor excessive. In addition, on the record before us, we find no merit in plaintiff's contention thatSupreme Court erred in denying her motion for an award of damages in the category of futurepain and suffering.
Cardona, P.J., and Peters, J., concur.[*5]
Carpinello, J. (dissenting). A review of the evidencepresented at trial, read in conjunction with each of the jury's answers to all of the questions on theverdict sheet, compels the conclusion that there is simply insufficient evidence to support theultimate determination that defendant Russell J. Firman's decision to discharge plaintiff from theemergency room on the morning of January 14, 2003 caused her any injury. In any event, theverdict is against the weight of the evidence.
To recover damages for medical malpractice, a plaintiff must establish both a deviation ordeparture from accepted medical practice and that such deviation or departure was aproximate cause of the plaintiff's injuries (see e.g. Vaughan v Saint Francis Hosp., 29 AD3d 1133, 1136-1137[2006]; Turcsik v Guthrie Clinic,Ltd., 12 AD3d 883, 886 [2004]; Valentine v Lopez, 283 AD2d 739, 741[2001]). Based on the testimony of plaintiff's expert, Allan Hausknecht, the jury could havedetermined that Firman deviated from accepted medical care when he discharged plaintiff fromthe emergency department. In our view, however, neither Hausknecht's testimony nor any otherproof credited by the jury demonstrated the requisite causal nexus between this particulardeparture and any injury suffered by plaintiff (cf. Valentine v Lopez, supra).
According to Hausknecht, Firman should have admitted plaintiff into the hospital for 24hours of observation, during which time it would have been clear that she was having a strokeand she could have received a thrombolytic agent such as Heparin or Lovenox. Specifically,according to Hausknecht, because plaintiff was not admitted and treated with "an anticoagulantof some sort or another . . . she probably had a little larger stroke than she shouldhave had if she was properly treated," although he readily acknowledged that "[i]t's very hard toquantify."[FN1]Notably, no other hospital-based treatment options were testified to by Hausknecht.
Proof submitted by the defense established that these particular thrombolytic agents have notbeen used for many years to treat ongoing strokes because they have not been proven to beeffective and actually increased the risk of complications. Importantly, the jury clearly creditedthis proof as it found, in response to a specific question, that Firman's failure to administer suchagents was not a departure from reasonable medical care. The jury also found thatFirman's failure to diagnose plaintiff's stroke, while a deviation from reasonable medical care, didnot cause her injury.[FN2]Thus, the only possible causal nexus between plaintiff's discharge and any injury arising from thedischarge had to have been based on this theory of administering a thrombolytic agent that wasnot a tissue plasminogen activator (hereinafter TPA); however, the jury specifically found nomalpractice stemming from the failure to administer these drugs. Thus, there is nothing in therecord to connect the finding of malpractice due to discharging plaintiff and the worsening of herinjuries.[*6]
To the extent that the majority points out that defensewitness Joel Bartfield testified that thrombolytic agents "decrease the likelihood of clotformation" and some neurologists would use Heparin or aspirin to prevent more blood clots fromforming, his testimony was in response to a question about past practices of physicians,namely, "before the approval [of TPA] by the [Food and Drug Administration] in [the] mid1990s." So limited, this testimony does not support the verdict. Nor is the majority's reliance onBartfield's cross-examination testimony at all instructive on the disputed issue before this Court.The questions and answers during cross-examination surrounding Heparin and Lovenox plainlyrelate to causes of strokes and have nothing to do with treatment. Thus, histestimony did not directly or impliedly "acknowledge[ ] a medically recognized effect of suchtreatment that supports the jury's implicit finding that plaintiff would have benefitted if she hadstayed in the hospital, been diagnosed with a stroke and treated with a thrombolytic agent" or inany way remotely imply, as found by the majority, "that administration of a thrombolytic agentcan have a beneficial effect after an ischemic stroke." In short, Bartfield never opined or impliedanything of the sort.
Absent any evidentiary basis for concluding that Firman's discharge of plaintiff was aproximate cause of her injuries, the verdict against him cannot stand (see Rampe vCommunity Gen. Hosp. of Sullivan County, 241 AD2d 817, 819 [1997], lv denied91 NY2d 806 [1998]). Even considering the evidence in a light most favorable to plaintiff, sincethe jury found that there was no deviation of care in failing to administer a non-TPAthrombolytic agent and that Firman's negligence in failing to diagnose the stroke did not causeher injury, "there is simply no valid line of reasoning . . . [that] could possibly lead. . . to the conclusion" (Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978];accord Imbierowicz v A.O. Fox Mem.Hosp., 43 AD3d 503, 505 [2007]; Cramer v Benedictine Hosp., 301 AD2d 924,928-929 [2003]) that Firman's discharge of her was a substantial factor contributing to theseverity of her injuries. Consequently, Firman's motion to set aside the verdict on this groundshould have been granted.
In order to preserve this verdict, plaintiff now attempts to characterize Firman's failure toadminister thrombolytic therapy as a "consequence" of his failure to admit her to the hospitalrather than an independent act of negligence. In other words, according to plaintiff, "[y]ou cannottreat that which you have not diagnosed." This contention, which has persuaded the majority, isnothing more than an ad hoc postverdict rationalization. First, it ignores the jury's finding thatFirman's negligence in failing to diagnose the stroke did not cause injury. Additionally, thefailure to administer a thrombolytic agent was included on the verdict sheet as anindependent act of negligence and was specifically rejected by the jury. Plaintiff's attempt tomassage the proof at trial to support this theory of liability on appeal should not be countenanced.Moreover, if, as now argued by plaintiff and accepted by the majority, Firman could nottreat what he did not diagnose, then there was no reason to include any question pertaining to theadministration of a thrombolytic agent on the verdict sheet in the first place.
Ultimately, what this case really boils down to is an inconsistent verdict. While Firmanadmittedly failed to object to the verdict prior to the jury's discharge (see e.g. Barry vManglass, 55 NY2d 803, 805-806 [1981]), there was nonetheless an objection to "thedeviation questions" contained on the verdict sheet. Even assuming that the issue of inconsistentverdict is not sufficiently preserved, "this is a distinction without a difference in this case sincethe claim that the verdict is against the weight of the evidence is preserved and we find it hasmerit" (Lockhart v Adirondack Tr. Lines, 305 AD2d 766, 767 [2003]; see Skowronski v Mordino, 4 AD3d782, 782 [2004]; Bendersky v M & O Enters. Corp., 299 AD2d 434, 435 [2002];Simmons v Dendis Constr., 270 AD2d 919, 920-921 [2000]). In our view, the evidenceconcerning whether [*7]Firman's negligence in dischargingplaintiff caused damages so preponderated in favor of him that the jury could not have reached itsverdict on any fair interpretation of it (see Lolik v Big V Supermarkets, 86 NY2d 744,746 [1995]).
On this issue, it must be emphasized that the gravamen of plaintiff's case was that TPAshould have been administered by the first treating emergency department physician, defendantJames P. Newman. Charitably stated, this theory, as presented through Hausknecht's testimony,was seriously undermined at trial and was ultimately rejected by the jury as a basis for liabilitybecause plaintiff did not present in time for TPA to be safely administered. With the crux of thecase destroyed, the remaining proof was presented in an attempt to establish that other separateacts of negligence occurred. These separate theories of negligence were mostly rejected by thejury (i.e., the jury found that Firman's negligent failure to diagnose the stroke did notcause damage, that Firman did not deviate from reasonable medical care in hisexaminations of plaintiff, and that Firman did not deviate from reasonable medical carein failing to administer a thrombolytic agent).
Since no treatment other than administering a non-TPA thrombolytic agent was discussed byHausknecht, there is a complete dearth of evidence to sustain the finding of causation as a resultof the negligent discharge. As noted previously, Hausknecht testified that plaintiff "probably[would have] had a little larger stroke than she should have had" if a thrombolytic agent had beenadministered to her following her admission into a hospital. But plaintiff offered no evidencewhatsoever to differentiate between the injuries attributable to the stroke itself and thoseattributable to the failure to admit. The jury therefore was left to speculate on this issue (seee.g. Migliaccio v Good Samaritan Hosp., 289 AD2d 208, 209 [2001], lv denied 98NY2d 607 [2002]; Prete v Rafla-Demetrious, 224 AD2d 674, 676 [1996]; Kennedy vPeninsula Hosp. Ctr., 135 AD2d 788, 792 [1987]; cf. Valentine v Lopez, 283 AD2dat 742).
Additionally, the reliability of Hausknecht's opinion was severely undermined by the eventsthat actually transpired that day. Hausknecht opined that plaintiff should have been admitted for a24-hour period of observation during which time a thrombolytic agent could have beenadministered. Tellingly, plaintiff was evaluated by her own primary care physician on theafternoon of January 14, 2003 and was admitted into a hospital that day where a strokewas diagnosed. At no time during this 24-hour period did any physician administer athrombolytic agent. Had plaintiff not received additional medical care that very day and had shenot in fact been admitted into a hospital within the 24-hour period of observation discussed byHausknecht, and had she been administered a thrombolytic agent that day, then his testimonyabout the appropriate protocol might carry some weight. Because no other physician prescribed athrombolytic agent, his opinion is without factual support. For these reasons, in addition to beinglegally insufficient, we do not find that any fair interpretation of the evidence can support theverdict.
Malone Jr., J., concurs.
Ordered that the order and judgment are affirmed, without costs.
Footnote 1: An ischemic stroke is a cerebralinfarction caused by an inadequate supply of blood and oxygen due to a blocked artery.
Footnote 2: As Newman and Firmanexplained in their testimonies, their threshold inquiry was whether plaintiff was suffering asevere migraine headache or the effects of a stroke and, if it had been a stroke, whether it wascaused by bleeding or formation of a clot. Since administration of a thrombolytic agent wouldhave inhibited clot formation, it would be contraindicated for a bleeding stroke. Thus, the jury'sfinding that Firman should have diagnosed a stroke but did not deviate in failing to administer athrombolytic agent is supported by the evidence that plaintiff's ischemic stroke, one caused by theformation of a clot, had not yet been diagnosed.
Footnote 3: We cannot conclude that themere fact that plaintiff was not treated with a thrombolytic agent after she was eventuallyadmitted to a different hospital undermines Hausknecht's opinion that such treatment would havebeen appropriate and undertaken once a diagnosis of a stroke was made. Certainly, many factorscould have influenced the course of actual treatment many hours after the onset of plaintiff'sstroke.
Footnote 1: Indeed, Hausknecht testified thatthe question of whether Firman's "deviations" caused plaintiff's injury was "a much more difficultquestion to answer."
Footnote 2: While Heparin was ultimatelyadministered, it was done so on January 16, 2003 (i.e., outside the 24-hour period discussed byHausknecht) as a prophylactic measure in response to a protein C deficiency and not as treatmentfor the stroke.