Lang v. Newman

Rose, J.

Cross appeals (1) from an order of the Supreme Court (Rumsey, J.), entered April 18, 2007 in Cortland County, which, among other things, denied defendant Russell J. Firman’s motion to set aside the verdict, and (2) from a judgment of said court, entered April 23, 2007 in Cortland County, upon a verdict rendered in favor of plaintiff.

Plaintiff commenced this medical malpractice action against, among others, two emergency medicine physicians who treated her at the Cortland Memorial Hospital emergency department on the morning of January 14, 2003. Triage assessment notes from that morning indicate that plaintiffs chief complaint upon arriving at the hospital was numbness in her left hand. She was initially treated by defendant James E Newman, whose notes report that, in addition to left hand numbness, plaintiff complained of slurred speech, some left facial drooping which he was unable to detect, a headache which developed after her arrival, and decreased sensation to light touch of the left hand and foot. He also noted that plaintiff 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 7:00 a.m. for plaintiffs pain. As of 7:00 a.m., when plaintiff was transferred to the care of defendant Russell J. Firman, Newman had made no definitive diagnosis of her condition.

While under Firman’s care, plaintiff complained of continued nausea, significant head pain surrounding her right eye, left hand numbness, an inability to complete sentences and left side weakness. Firman reported that he performed a routine neurologic examination, which included assessing plaintiffs cranial nerves, cerebellar functions, speech, motor strength and sensation, and noted no abnormalities. He then ordered pain medication for her headache. According to medical records and trial testimony, between 9:00 a.m. and 10:30 a.m. plaintiffs condition improved, her pain resolved and she had no neurologic deficits or difficulty speaking. After declining a lumbar puncture recommended by Firman to exclude the possibility of bleeding in her 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 by plaintiffs primary care physician revealed an infarct, an area of dead tissue caused by a lack of oxygen. Following plaintiffs admission to another hospital where further testing was performed, her condition was diagnosed as an ischemic stroke.¹ Plaintiff was discharged three days later.

The gist of plaintiffs complaint against both Newman and Firman was that each had been negligent in failing to diagnose her stroke, in failing to perform complete and proper physical and neurological 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 in failing to administer a particular thrombolytic agent, namely, tissue plasminogen activator (hereinafter TEA). With respect to Firman only, plaintiff also alleged that he was negligent in discharging her that morning rather than admitting her for observation. Plaintiff s primary theory of liability concerning Newman’s failure to administer TEA, a drug which must be administered within three hours of the onset of a stroke, was seriously undermined at trial by proof that those three hours had passed before Newman saw plaintiff. As a result, the jury’s verdict completely exonerated Newman.

With respect to Firman, the jury found no deviation from reasonable medical care in his examinations 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 diagnose the stroke, it found this deviation not to be a substantial factor in causing injury to plaintiff. The only deviation found to be a substantial factor in causing injury to plaintiff was her premature discharge from the hospital. The jury went on to award $300,000 in damages for plaintiffs past pain and suffering, but declined to award any future damages. After Firman’s unsuccessful motion to set aside the verdict and plaintiffs unsuccessful cross motion for an additur for future pain and suffering, these cross appeals ensued.

We cannot agree with Firman’s argument that the record wholly fails to support the jury’s conclusion that his deviation in discharging plaintiff without admission to the hospital for further observation was a proximate cause of her injury. The jury was asked, “Did defendant Russell Firman deviate from reasonable medical care by failing to administer thrombolytics such as aspirin, [H]eparin or [L]ovenox to [plaintiff]?” The jury answered “NO” to this question, but then answered “YES” to the next two questions: “Did defendant Russell Firman deviate from reasonable medical care when he discharged [plaintiff] from the emergency department?” and “Was Russell Firman’s deviation from reasonable medical care 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 the jury necessarily credited the defense experts, who testified that no thrombolytic treatment was then appropriate, in finding that Firman’s failure to administer thrombolytic agents to plaintiff was not a departure from reasonable medical care. There is no inescapable implication that the jury exonerated Firman’s failure to administer such agents only because it believed that their administration would have provided no benefit. Instead, the jury very well could have reasoned that the failure to administer the agents in the emergency room was not a deviation because an ischemic stroke had not yet been diagnosed and, thus, treatment for such a stroke was not yet medically indicated.² The jury did not have to find that the defense experts had established that these thrombolytic agents are ineffective or not medically recommended in order to answer this question the way it did. In fact, the first defense expert, Joel Bartfield, never opined that these thrombolytic agents are ineffective or contraindicated to prevent additional damage after an ischemic stroke. When asked on direct examination what medical professionals had done to treat such strokes before the approval of TPA by the Food and Drug Administration in the 1990s, Bartfield testified that some neurologists would start the patient on Heparin. He then switched to the present tense, adding that Heparin “is not as powerful a blood thinner as [TPA], but it prevents more blood clots from forming.” He continued by stating that “[a]spirin is also typically used by most neurologists as well.” Later, during cross-examination, Bartfield again stated in the present tense that agents such as Heparin and Lovenox “do decrease the likelihood of clot formation,” and that a clot is a possible cause of an ischemic stroke. Thus, Bartfield did not restrict his testimony as to the beneficial 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 that supports the jury’s implicit finding that plaintiff would have benefitted if she had stayed in the hospital, 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 currently indicates that this thrombolytic agent “not only [does] not improve the outcome of acute stroke, but actually increase [s] the risk of hemorrhage” as reflected in a practice advisory issued in 2004. However, Storey did not state that such agent would not decrease the likelihood of further clot formation in patients with ischemic stroke, and he admitted on cross-examination that his Web site includes information that aspirin may improve the outcome of a stroke.

Nor can we agree that there is no evidentiary support for the jury’s finding that Firman’s discharge 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 that plaintiff’s injuries would have been less severe if a thrombolytic agent had been administered to her following admission to the hospital and diagnosis of a stroke. As Supreme Court correctly noted, plaintiffs doctor, Allan Hausknecht, supplied that evidence. Hausknecht opined that if plaintiff had been admitted to the hospital for 24 hours of observation, rather than discharged, it would have become clear that she had suffered an ischemic stroke and she would have been given Heparin or Lovenox.³ Inasmuch as he also opined that timely admission and treatment would have made the effects of the stroke less severe, there was expert evidence of a causal connection between Firman’s failure to 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, upon viewing the evidence in the light most favorable to plaintiff (see e.g. Cramer v Benedictine Hosp., 301 AD2d 924, 928-929 [2003]), we find that there is a valid line of reasoning and permissible inferences supporting the jury’s conclusion that it was a deviation for Firman to fail to admit plaintiff to the hospital for further observation, and that this deviation contributed to the injuries she sustained as a result of the stroke. Also, given that Hausknecht opined, and Bartfield implied, that administration of a thrombolytic agent can have a beneficial effect after an ischemic stroke, while only Storey denied the appropriateness of such treatment, it cannot be said that “the evidence so preponderate [d] in favor of the [defendant] that [the verdict] could not have been reached on any fair interpretation of the evidence” (Biello v Albany Mem. Hosp., 49 AD3d 1036, 1037 [2008] [internal quotation marks and citations omitted]; see Cramer v Benedictine Hosp., 301 AD2d at 930).

Turning to Firman’s remaining arguments, we find that the issue of whether there are inconsistencies 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 speculative nor excessive. In addition, on the record before us, we find no merit in plaintiffs contention that Supreme Court erred in denying her motion for an award of damages in the category of future pain and suffering.

Cardona, P.J., and Feters, J., concur.

1 . An ischemic stroke is a cerebral infarction caused by an inadequate supply of blood and oxygen due to a blocked artery.

2 . As Newman and Firman explained in their testimonies, their threshold inquiry was whether plaintiff was suffering a severe migraine headache or the effects of a stroke and, if it had been a stroke, whether it was caused by bleeding or formation of a clot. Since administration of a thrombolytic agent would have inhibited clot formation, it would be contraindicated for a bleeding stroke. Thus, the jury’s finding that Firman should have diagnosed a stroke but did not deviate in failing to administer a thrombolytic agent is supported by the evidence that plaintiffs ischemic stroke, one caused by the formation of a clot, had not yet been diagnosed.

3 . We cannot conclude that the mere fact that plaintiff was not treated with a thrombolytic agent after she was eventually admitted to a different hospital undermines Hausknecht’s opinion that such treatment would have been appropriate and undertaken once a diagnosis of a stroke was made. Certainly, many factors could have influenced the course of actual treatment many hours after the onset of plaintiffs stroke.