In its Memorandum and Order filed on December 7, 2017, the New York Supreme Court, Appellate Division, Third Department (“New York Appellate Court”) held that the New York medical malpractice plaintiffs had submitted sufficient evidence during trial with regard to causation and damages to avoid a directed verdict in favor of the defendant.
The Underlying Facts
On October 18, 2011, the defendant pediatrician examined a nine-year-old patient who had complaints of vomiting, diarrhea, the presence of blood in his urine, and his inability to keep fluids down over a three-day period. The defendant pediatrician determined that the child was severely dehydrated and directed the child’s mother to bring the child to the emergency room at the defendant hospital to undergo an evaluation as to the cause of his symptoms and receive intravenous fluids. An emergency room physician diagnosed the child with gastroenteritis and dehydration and admitted the child to the hospital.
The next day, the defendant pediatrician examined the child again and noted that, although the child did not vomit overnight, the child felt weak, had abdominal pain, and continued to have watery stools. The defendant pediatrician diagnosed the child with acute gastroenteritis and severe dehydration, ordered a stool study, and requested a surgical consult.
The consulting surgeon agreed with the defendant pediatrician’s initial diagnosis and recommended that a CT scan be performed if the child’s abdominal pain continued.
The defendant pediatrician saw the child again on October 20, 2011, and noted that the child had profuse watery diarrhea, vomiting, and increased bands of immature white blood cells, but that the etiology of the child’s condition remained unknown. Later that afternoon, the results of the stool study indicated that the child’s stool had tested positive for the presence of clostridium difficile. The defendant pediatrician ordered that the child be treated for a clostridium difficile infection with an antibiotic.
On October 21, 2011, the defendant pediatrician documented a plan for a CT scan of the child’s abdomen, but did not order one. Another pediatrician covered the treatment of the child on October 22, 2011 and on October 23, 2011.
On October 24, 2011, the defendant pediatrician ordered a CT scan of the child’s abdomen and pelvis, prompted by an increasingly high white blood cell count as well as the child’s complaint of abdominal pain. The CT scan revealed a large abscess in the child’s pelvis caused by a ruptured appendix. The child was then transferred to another hospital where he underwent a procedure to drain the abscess and a second procedure to insert a percutaneous line into his arm to deliver antibiotics intravenously for a period of two weeks.
The child’s parents subsequently filed a New York medical malpractice case against the defendant pediatrician and the first hospital, alleging that the defendant pediatrician failed to timely and accurately diagnose their child’s condition, thereby causing physical and emotional injuries, loss of quality of life, and pain and suffering to the child, as well as increased medical costs and disbursements.
The Plaintiffs’ Expert Testimony At Trial
At trial, the plaintiffs argued that the defendant pediatrician’s failure to expand his diagnosis and order a CT scan of the child’s abdomen and pelvis at an earlier stage caused the child’s appendicitis to percolate into a perforation that was then allowed to evolve into an abscess and the large collection that was ultimately discovered by CT scan on October 24, 2011. The plaintiffs’ expert testified that the child’s medical records reflected that the child repeatedly complained of abdominal pain over the period of October 18, 2011 through October 21, 2011, and that the child had an increasingly elevated and abnormal white blood cell band count. The plaintiffs’ expert stated that the child’s abnormal band count on October 20, 2011 demonstrated that the child’s condition was not resolving.
The plaintiffs’ expert further testified that, despite the presence of clostridium difficile in the child’s stool, he did not agree that the child had a clostridium difficile infection because the elevated band count and the absence of certain risk factors on the part of the child did not comport with such a diagnosis.
Based on his review of the child’s medical records, the plaintiffs’ expert opined, to a reasonable degree of medical certainty, that the defendant pediatrician departed from accepted medical practice by failing to expand his diagnosis and order a CT scan on or before October 21, 2011. He further opined that the child suffered from appendicitis that percolated into a perforation and that, because the child was allowed to eat over the many days leading up to October 24, 2011, the perforation fed into an abscess that evolved into a larger collection.
The defendant pediatrician argued in his motion for directed verdict that the plaintiffs fell short of establishing proximate cause because the testimony of the plaintiffs’ expert did not demonstrate that any of the alleged departures from accepted medical practice was a substantial factor in causing the child’s injuries.
The trial court denied the defendant’s motion for directed verdict. A mistrial was declared because the New York medical malpractice jury was deadlocked. The defendant pediatrician appealed the trial court’s denial of his motion for directed verdict.
The New York Appellate Court stated that where a plaintiff alleges that the defendant negligently delayed in diagnosing and treating a condition, proximate cause may be predicated on the theory that the defendant diminished the patient’s chance of a better outcome or increased the injury, and that an expert’s failure to quantify the extent to which the delayed diagnosis and treatment diminished the chance of a better outcome or increased the injury is not fatal to the establishment of proximate cause, so long as evidence is presented from which the jury may infer that the defendant’s conduct diminished the plaintiff’s chance of a better outcome or increased his or her injury.
The New York Appellate Court held that in viewing the evidence in the light most favorable to the plaintiffs, a juror could rationally conclude that the defendant pediatrician’s failure to expand his diagnosis and order a CT scan on or before October 21, 2011 caused the child’s underlying condition to remain undetected and unnecessarily worsen over the course of several days, thereby resulting in continued emotional and physical pain and suffering relating to the child’s underlying condition and the child’s transfer to a tertiary care center for treatment of the abscess, including the insertion of a percutaneous line.
The New York Appellate Court further held that even if a juror accepted the defendant pediatrician’s argument that an earlier diagnosis may have resulted in a more invasive surgical procedure than the child ultimately underwent, he or she could still rationally conclude that the failure to expand the diagnosis and order an earlier CT scan caused the child to, at a minimum, endure unnecessary pain and suffering while he awaited a diagnosis and treatment that would fully address his underlying condition and symptoms. Therefore, the New York Appellate Court held that the trial court had properly denied the defendant pediatrician’s motion for a directed verdict.
Source D.Y. v. Catskill Regional Medical Center, 2017 NY Slip Op 08577
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