Posts made in February 2012

Failure to Diagnose Sepsis Results in Patient Death

On January 6, 2009, an unemployed, 59 year old African-American man presented to the defendants’ medical facility for assistance. At that time, he was complaining of a fever, cough and an inability to keep liquids down. After examination, his physicians diagnosed him with pneumonia and he was advised to increase fluids tomorrow; take 2 Tylenol every 4 hours for fever; rest; and, [seek follow-up medical care] in 2-3 days. In addition, he was prescribed Levaquin and Robitussin. He was then released home.

Owing to his worsening symptoms, he returned to the defendants’ medical facility approximately 6 hours later with roughly the same complaints. At this time, it was recorded that he was now also suffering from diarrhea and vomiting. While at the defendants’ facility he exhibited increasing difficulty in forming words due to swelling in and around his mouth. The medical notes revealed that initially patient responded well to intervention for presumed hypersensitive reaction to Levaquin. Unfortunately, he soon became lethargic all the while complaining of pain, numbness and tingling in [his] feet. He eventually became unresponsive and a code was called. Despite CPR, he was declared dead later that same morning.

The plaintiff was prepared to show that the decedent initially exhibited a host of symptoms that should have alerted the defendant doctors of a worsening medical condition which demanded that they admit the decedent to a hospital and treat him emergently. The sum of these findings indicated that the decedent’s infectious process (pneumonia) was associated with acute multi-organ dysfunction, specifically five of his organ systems showed signs of damage: leukopenia (low white blood cell count) indicating immune dysfunction, worsening creatinine indicating acute renal failure, elevated bilirubin indicating hepatic dysfunction, thrombocytopenia (low platelet count) indicating coagulation dysfunction and hypoxemia (low arterial oxygen saturation) indicating pulmonary dysfunction.

The plaintiff asserted that the current standard of care for a patient with a severe sepsis is admission to the hospital for aggressive management. The plaintiff’s expert opined that had the defendant doctors recognized the signs of sepsis during the decedent’s initial emergency department visit, they could have intervened to halt and ultimately reverse the progressive disease process.

The defendants argued that the plaintiff was in fact offered admission to their facility, but declined preferring to simply return home. In addition, the defendants were prepared to demonstrate that the decedent possessed “co-morbidities” (which included but was not limited to severe alcohol and drug abuse). Indeed, the decedent’s autopsy revealed detectable levels of cannabinoids in the decedent’s system.

Tree Removal Results in Death

The defendant, a certified arborist and co-owner of a full scale tree care and removal company, was a long-time family friend of the decedent’s. He had formerly agreed that he would come to the decedent’s home on a Sunday and remove a large pine tree for a cost of $1,000. No estimate, contract or other documentary proof of this arrangement was created, however.

On Sunday, January 2, 2011, the defendant presented to the decedent’s home in order to remove the tree from the premises. The defendant arrived at the decedent’s home in possession of company equipment which included, but was not limited to, multiple chain saws, a commercial wood chipping machine and other related equipment. Despite the aforementioned and indisputable agreement between the parties, the fee was never paid due to the intervening accident.

The defendant climbed the tree and began removing limbs with the use of a chainsaw. The decedent, (who declined the defendant’s offer to borrow and wear a hard hat but who did wear noise cancelling earphones), personally participated by removing the cut limbs and placing them in an operational wood chipper. After denuding the tree of all limbs, the defendant attempted one final cut from the very top of the formidable tree itself. The decedent, (seeing that all of the limbs had been removed and thus presuming that all cuts had been completed), wandered underneath the tree and was struck in the head with a wedge of wood described as roughly the size of a watermelon. The decedent was originally knocked unconscious but amazingly awoke and staggered to his feet. EMT’s were called to the scene and attempted to revive the decedent who had soon became unconscious again. Once admitted to the hospital, the decedent was placed on a ventilator but unfortunately expired later that night. He was 65 years old and retired.

The arborist company initially denied coverage stating that the transaction between the decedent and the company employee was a personal rather than corporate one. In support, the company cited the fact that no corporate documents were utilized or exchanged nor was money paid or received. Moreover, they noted that the work was performed on a Sunday, (a day when the company would ordinarily refrain from conducting business). Finally, the company asserted that they would not ordinarily allow a consumer to assist, even in a modest way, in removing tree branches that were cut away. The fact that the decedent was allowed to participate in removing branches that had been cut away was further evidence of the close personal relationship that existed between the decedent and the arborist who admittedly were friends.

The plaintiff countered by stressing that company equipment was used to remove the tree and that the company website touted “…we have the tools, knowledge and experience to conquer these [tree removal] tasks safely, efficiently and economically, while reducing any impact to your landscape.” The plaintiff asserted that a fair analysis demanded the conclusion that the company arborist (1) while using company equipment and, (2) plying his trade as an owner/operator of the company (3) for a negotiated fee, created a scenario whereby the company’s insurance coverage should apply.

Warehouse Temp Worker Falls From Second Story; Broken Gate Was Left Partially Open

On September 25, 2008, the plaintiff, a 47 year old male, was employed by a temporary employment agency and working at an auto parts warehouse. At the time of the accident, he was in the process of receiving a pallet of auto parts that had been hoisted by forklift and delivered through a receiving gate on the second floor. The gate was designed to remain in the closed position at all times except when transferring pallets from the first to the second floor level of the warehouse. The forklifts on the first floor would typically lift the pallets up to this “gate” on the second level, and push the gate open. Then, (after the pallets were placed on the second level past the clearance of the gate), the gate’s doors were to swing back to the closed position. Investigation revealed that after years of use, the receiving gate was in disrepair and was caused to remain partially open at all times. A plant manager testified that the receiving gate had been in a state of disrepair for several years preceding the plaintiff’s accident. The plaintiff was in the process of using a pallet jack to move the delivered items when he accidentally fell through the open gate and plummeted nearly 10 feet to the concrete floor below.

The plaintiff was initially treated by emergency medical technicians who found him unconscious and bleeding from his nose. Once at hospital, he was diagnosed with “multiple trauma” including a skull fracture, closed head injury, fractured clavicle, fractured scapula and numerous fractured ribs. He remained at the hospital in excess of one month during which time he exhibited occasional bouts of confabulation and disorientation. For example, while at the hospital he articulated his belief that he was injured when he was hit by a pitch at a Red Sox fantasy camp. In another instance, he expressed his belief that he was injured due to falling off a ladder while intoxicated. He was released from the hospital only after these complications ultimately abated.

Upon his eventual discharge from hospital, he engaged in both occupational and physical therapy for several months, all the while making remarkable progress. Apart from developing a mild case of tinnitus, he steadily regained his base line health and seemingly made a near full recovery. Within 7 months of his accident, the plaintiff was again able to independently care for all of his needs. He was soon cleared by his physicians to return to work. Within 9 months of his accident, he placed 4th in a state wide chess tournament.

The defendant asserted that the plaintiff’s comparative negligence contributed to the accident. Numerous co-workers were prepared to testify that the plaintiff was acting recklessly immediately prior to the accident. Moreover, it was alleged that the plaintiff’s remarkable recovery precluded any credible claim of a prolonged or permanent disability.

The case settled at mediation for $891,716.00

Wrongful Death due to Nursing Home Negligence

The plaintiff, who suffered from severe dementia, was a resident at the defendant’s facility. It is uncontested that the plaintiff relied entirely on the defendants for even the most basic activities of daily living. At the time of the facts that give rise to this case, it was generally accepted that the plaintiff’s health was in a period of drastic decline.

Upon her admission to the defendant’s facility, the plaintiff underwent an evaluation which identified that she was at increased risk for choking. Because of her particular compromised condition, (frontal temporal dementia and Pick’s Disease), choking is a generally recognized hazard.

On or about March 20, 2006, the plaintiff was being fed by an aide employed by the defendant. Coincidentally, the plaintiff’s daughter was also present. The daughter noticed that the aide was not providing feeding “cues” for the patient such as “slow down” [eating] “finish the food that is in your mouth before taking another bite” and the like. The daughter tried to remind the aide that cueing was necessary, but her efforts in this regard were largely ignored. Similarly, the daughter expressed her concern that the aide was not sufficiently monitoring the patient’s consumption of food. The aide, in the daughter’s opinion, was providing too much food with each forkful and was not ensuring that all of the food was actually swallowed before providing another bite.

Unfortunately, the daughter’s apprehensions soon became realized: the plaintiff began to choke and initial efforts to clear her airway proved unsuccessful. Emergency Medical Technicians who were summoned initially restored the plaintiff’s breathing but she expired hours later nonetheless. It is uncontested that a large bolus was ultimately recovered from the decedent’s airway and that her cause of death was determined to be proximately caused by asphyxiation. When scrutinized, the bolus contained, among other things, broccoli stems and remnants of a bread roll-items that presumably should not have been included in the patient’s diet due to her heightened risk of choking.

The plaintiff’s expert was prepared to testify that the defendant was well aware of the plaintiff’s asphyxiation risks. Medical records confirm that she was noted to be impulsive and grabbing food during an exam and had a history of choking with pills and “pocketing” (meaning clustering foods in the back of her month). Furthermore, the defendant knew that their patient was on a ground diet, regular liquid, super mashed, super cereal regime. The plaintiff had a well documented plan of care for strict adherence to aspiration precautions from New England Sinai Adult Day Care and Old Colony Hospice where she was previously noted to gorge and pocket food.

The plaintiff’s expert opined that the standard of care for a patient with dysphagia is to monitor the swallowing of the patient and making sure that food is clearing the patient’s throat before giving more food or liquid. In this case, the plaintiff’s expert concluded, the patient’s care fell below the standard of care since the aide was not (1) taking reasonable steps to “cue” the patient to eat slowly; (2) providing the patient with small bites of food; (3) checking to ensure that the patient was not “pocketing” food; and, (4) ensuring that the patient was clearing her throat before swallowing the food. The combination of all of these lapses thus facilitated a bolus of food that caused the patient to suffer aspiration and blockage of airway resulting in her death.

The case settled at mediation in the amount of $175,000.