ER misdiagnosis of ulcer led to man’s death 10 hours later — $1.4 million verdict

Type of action: Medical malpractice

Injuries alleged: Death from perforated duodenal ulcer

Name of case: Walker v. Rubenstein, et al.

Court: Norfolk Circuit Court

Case no.: CL21-1818

Tried before: Judge

Name of judge: Judge Everett A. Martin

Date resolved: March 17, 2025

Attorneys for plaintiff: Amberley G. Hammer, Currituck, North Carolina, Hammer Law; Jonathan L. Thornton, Virginia Beach, Pierce & Thornton

Description of case: The 30-year-old decedent presented to the former DePaul Medical Center in Norfolk on Dec. 28, 2019, with 10/10 abdominal pain, sweat pouring from him, cramping hands, feeling like he couldn’t breathe, vomiting and screaming in pain. He reported smoking marijuana earlier in the day.

He was triaged and quickly evaluated by a physician assistant, who ordered Zofran, labs and IV fluids. The PA sent the plaintiff to the main emergency room side for evaluation by the defendant ER doctor. The defendant saw the decedent within 45 minutes and documented that he performed a complete physical examination and noted the abdominal exam was normal. The decedent’s girlfriend disputed that an exam was performed.

Although the defendant ER doctor included several life-threatening conditions in his differential diagnosis, he failed to order any imaging, including an abdominal CT scan, and failed to request a surgical consult. His clinical impression was “nausea and vomiting of uncertain etiology.”

The medical record showed that the discharge was initiated by the defendant after the decedent was seen by him but before the lab results were back. The decedent’s lab results came back abnormal. The defense disputed that the discharge was initiated earlier in the evening.

The decedent was discharged with pain at an 8/10 level. The defendant claimed he was not aware of the decedent’s pain level at the time of discharge.

About 10 hours after his ER discharge, the plaintiff collapsed on the floor of his girlfriend’s home. The rescue squad returned him to the hospital, where he was pronounced dead shortly thereafter. The undisputed cause of death was a perforated duodenal ulcer. The decedent was survived by his 6-year-old son, the sole statutory beneficiary.

The plaintiff’s experts testified that the standard of care required ordering and performing an abdominal CT scan and a surgical consult requested. The plaintiff’s experts testified that an abdominal CT scan would have shown abnormal radiology findings concerning for a gastric outlet obstruction from a duodenal ulcer. The plaintiff’s surgical expert testified that a nasogastric tube would have been placed, thus saving his life.

At trial, the defendant’s experts testified that the decedent’s symptoms were caused by smoking marijuana, a syndrome known as cannabinoid hyperemesis, and were not from his duodenal ulcer. The plaintiff’s experts disputed that testimony. The defendant admitted he did not include cannabinoid hyperemesis in his differential diagnosis that was recorded in the medical record. The defendant’s experts further testified that an abdominal CT scan would not have shown abnormal findings, that a surgical consult was not warranted and that the plaintiff’s death was tragic.

After a five-day jury trial and approximately nine hours of deliberation, the jury returned a verdict for the plaintiff.

Amberley G. Hammer, counsel for the plaintiff, provided case information.

[025-T-142]