On Sept. 24, 2009, the decedent was admitted to the hospital with a bleeding gastric ulcer. The defendant was her cardiologist and primary care physician. Decedent had a number of co-morbidities on admission, principally deforming rheumatoid arthritis, coronary artery disease, complete heart block, congestive heart failure and renal insufficiency. Initially, the defendant provided cardiology consultation with the gastroenterologist who performed endoscopy and repair of the bleeding ulcer. After the decedent hemodynamically stabilized following endoscopy, the defendant assumed her care in the hospital, with a plan to discharge her to a rehabilitation facility. In anticipation of discharge, the defendant ordered a chest x-ray per the rehabilitation facility’s admission requirements. The defendant evaluated the decedent in the afternoon for possible discharge that afternoon or the following day. The results of the x-ray were not then available. Later that day, the defendant learned from someone at the hospital that venous access for an evening blood draw for morning labs was not possible. Because transfer was imminent and because he did not want to cause the decedent unnecessary discomfort from multiple attempts at blood draws in a woman with very fragile skin, the defendant told the caller to cancel his earlier order for morning labs. The cancellation order was not entered, and blood ultimately was obtained for labs which were performed in the early morning hours of the day after defendant’s final evaluation of the decedent. Later that same morning, the radiologist interpreting the chest x-ray found it suspicious for possibility of developing pneumonia and called that result to the floor. A nurse relayed that message to the defendant, who did not think the clinical picture from his evaluation the previous afternoon correlated with the x-ray findings. He recalled discussing the decedent’s current clinical condition with the nurse and being satisfied that the decedent was hemodynamically stable and had no breathing problems. The nurse could not recall such a discussion, and the fact of the discussion was not recorded in the patient chart. The defendant ordered an antibiotic for the decedent on a prophylactic basis. This antibiotic was not given, as the decedent was transferred before the order could be taken off and completed. The results of the morning labs showed an elevated white count with increased neutrophils, but no bandemia. The decedent was transferred to the rehab facility, where she had cardiac arrest the following morning. Her vital signs at the facility were within normal ranges until immediately before she was found unresponsive and resuscitation initiated. The first recorded heart rhythm by EMS called to the facility after decedent’s arrest was ventricular fibrillation. She was taken back to the hospital from which she had been discharged a day earlier where resuscitation continued until a family member with decedent’s power of attorney had these efforts stopped, as the decedent had an Allow Natural Death order in place.
Plaintiff’s theory was that the decedent contracted pneumonia in the hospital that went undiagnosed and untreated. The pneumonia caused sepsis, which in turn caused cardiac arrest and death. Had the decedent been kept in the hospital and properly treated, the pneumonia would have resolved with no adverse sequelae. Plaintiff’s expert pointed primarily to the elevated WBC with neutrophilia in the morning labs as well as the discharge chest x-ray and another chest x-ray of the decedent made when she was returned to the hospital on the morning she died, which, he claimed, showed worsening hospital acquired pneumonia. The defense theory was that the decedent’s cardiac arrest was caused by a tremendous shock to her system resulting from significant bleeding from the gastric ulcer, which weakened an already weak heart and lead to v-fib, cardiac arrest and death. The defense experts concluded that the decedent was going to die regardless of where she was located. The elevated WBC and increased neutrophils were explained by the significant amount of IV steroids the decedent received in the hospital. The defense radiologist was able to show that neither chest x-ray relied upon by plaintiff’s expert showed pneumonia. The pre-discharge chest x-ray showed atelectasis expected in a post-op patient and the second chest x-ray showed pulmonary edema associated with the cardiac arrest. In addition, the hospital radiologist interpreting the second study also interpreted the pre-discharge study, and his report of the second study made no reference to pneumonia at all.
The case involved issues as to the admissibility of decedent’s death certificate. It was completed by the defendant at the request of the emergency physician who attended decedent upon her return to the hospital after the cardiac arrest. In it, defendant listed the cause of death as cardiac arrest as the result of pneumonia of one-week duration. Before and during trial, the defendant sought to exclude the cause of death portion of the certificate as inadmissible opinion. The court excluded the document but not defendant’s conclusions in it as to cause of death. There was also an issue as to the admissibility of the AND order. Plaintiff was successful in having evidence of it excluded at trial. The court ruled that the potential prejudice to plaintiff by virtue of a statutory beneficiary with decedent’s power of attorney being the signatory of the order outweighed any value it had to prove defendant’s contention that the decedent would have died when and how she did regardless of where she was located. The court did grant an instruction requested by the defendant and opposed by plaintiff, which told the jury that it was not to consider the termination of resuscitation in arriving at their verdict. The case proceeded at trial as both a survival action and a wrongful death action. At the conclusion of plaintiff’s case, the court granted defendant’s motion to strike the survival action, as there was insufficient evidence to support it. The jury returned a verdict after two hours of deliberation following a four-day trial.[14-T-090]
Type of action: Medical malpractice – wrongful death
Court: Danville Circuit Court
Tried before: Jury
Judge: Joseph W. Milam Jr.
Date resolved: April 11, 2014
Demand: $1,000,000 (amount sued for)
Verdict or settlement: Defense verdict
Attorney for defendant: M. Pierce Rucker, Richmond
Defendant’s experts: Timothy J. Cole, M.D.; Dennis M. O’Neill, M.D.; Jeffrey Scott Todd, M.D.
Plaintiff’s expert: Frederick L. Glauser, M.D.