Verdicts

No Plaintiff Contribution, No Collateral Source Evidence Exclusion

The Court of Appeals of Florida, Second District, reversed a ruling that said Florida's collateral source rule (' 768.76(1), Fla. Stat. (1986)) prohibited an insurer from presenting evidence that the disabled plaintiff's long-time eligibility for Medicare could reduce his future medical care costs; the court found that, because the plaintiff had not paid into the Medicare fund in order to partake of its benefits, the collateral source rule did not apply in his case. State Farm Mutual Automobile Insurance Co. v. Joerg, 2013 Fla. App. LEXIS 9840 (6/21/13).

Test Might Have Revealed Unrelated Condition; Causation Not Shown

A New York trial court erred when it failed to grant defendants' motions for summary judgment in a medical malpractice claim in which the plaintiff's expert's opinion merely said that, had an extra test been conducted that was not related to the ultimate cause of death, it might nevertheless have detected the danger posed by the hidden condition that ultimately led to the decedent's demise. Wilk v. James, 2013 N.Y. App. Div. LEXIS 5315 (N.Y. App. Div. 4th Dept. 7/19/13).

Plaintiff's decedent was experiencing severe urinary tract symptoms when, on Feb. 16, 2004, he called his urologist's office for assistance. He reported to an assistant there that he had gone to the emergency room a day earlier because of this same condition, and that he now was unable to urinate. Normal practice was to have patients who could not urinate come into the office for immediate catheterization, but because staff capable of assisting in this procedure was low that afternoon, the patient was told to report to the hospital emergency room. There he was catheterized and advised to contact his urologist the following day. He did not make that call, but his symptoms worsened and the patient was transported to the hospital by ambulance on Feb. 18, 2004, where he underwent two operations, the second of which took place on Feb. 20, 2004.

The patient's condition steadily improved and he was scheduled to be transferred to a rehabilitation center, but his condition made a turn for the worse on March 1, 2004 and he died two days later. The death certificate listed the immediate cause of death as “cerebral infarct with herniation” occurring within “hours” of the decedent's death. The cerebral infarct was “due to or as a consequence of” shock with intestinal ischemia beginning “days” before the patient died that, in turn, was “due to or as a consequence of” aortic dissection, which likewise began “days” prior to the decedent's death. The death certificate listed as a second condition significantly contributing to the decedent's death “spinal cord infarct [secondary to] hematoma.”

The plaintiff brought suit against the two urologists and others. The plaintiff presented the opinion of a medical expert who opined that, considering the decedent's complaints: 1) it was a deviation from the standard of care for the doctors to have failed to order a CT scan with contrast of the patient's abdomen and pelvis on Feb. 16, 2004 in order to rule out kidney infarction (which the patient, in fact, did not have); 2) but for that deviation, they would have been able to diagnose the real cause (the aortic dissection) of the patient's symptoms; and 3) if that diagnosis had been made, surgery could have been performed in time to correct the patient's condition. The trial and appeals courts agreed with the defendants, however, that the plaintiff's expert did not say that the symptoms reported by the patient should have led the doctors to diagnose an aortic dissection; only that had they ordered a CT scan to rule out infarction of the left kidney they would have been more likely to diagnose the real cause of the patient's symptoms.

“Plaintiff is therefore seeking a determination that defendants were negligent in failing to order a diagnostic test to rule out a urological condition that decedent did not have because that test may incidentally have revealed an underlying and unsuspected cardiothoracic condition,” said the court. This connection between their alleged negligence (failure to order the CT scan) and the decedent's death was, ultimately, “simply too attenuated to raise an issue of fact with respect to causation,” said the court. It therefore reversed the denial of the defendants' motions for summary judgment.

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No Plaintiff Contribution, No Collateral Source Evidence Exclusion

The Court of Appeals of Florida, Second District, reversed a ruling that said Florida's collateral source rule (' 768.76(1), Fla. Stat. (1986)) prohibited an insurer from presenting evidence that the disabled plaintiff's long-time eligibility for Medicare could reduce his future medical care costs; the court found that, because the plaintiff had not paid into the Medicare fund in order to partake of its benefits, the collateral source rule did not apply in his case. State Farm Mutual Automobile Insurance Co. v. Joerg, 2013 Fla. App. LEXIS 9840 (6/21/13).

Test Might Have Revealed Unrelated Condition; Causation Not Shown

A New York trial court erred when it failed to grant defendants' motions for summary judgment in a medical malpractice claim in which the plaintiff's expert's opinion merely said that, had an extra test been conducted that was not related to the ultimate cause of death, it might nevertheless have detected the danger posed by the hidden condition that ultimately led to the decedent's demise. Wilk v. James , 2013 N.Y. App. Div. LEXIS 5315 (N.Y. App. Div. 4th Dept. 7/19/13).

Plaintiff's decedent was experiencing severe urinary tract symptoms when, on Feb. 16, 2004, he called his urologist's office for assistance. He reported to an assistant there that he had gone to the emergency room a day earlier because of this same condition, and that he now was unable to urinate. Normal practice was to have patients who could not urinate come into the office for immediate catheterization, but because staff capable of assisting in this procedure was low that afternoon, the patient was told to report to the hospital emergency room. There he was catheterized and advised to contact his urologist the following day. He did not make that call, but his symptoms worsened and the patient was transported to the hospital by ambulance on Feb. 18, 2004, where he underwent two operations, the second of which took place on Feb. 20, 2004.

The patient's condition steadily improved and he was scheduled to be transferred to a rehabilitation center, but his condition made a turn for the worse on March 1, 2004 and he died two days later. The death certificate listed the immediate cause of death as “cerebral infarct with herniation” occurring within “hours” of the decedent's death. The cerebral infarct was “due to or as a consequence of” shock with intestinal ischemia beginning “days” before the patient died that, in turn, was “due to or as a consequence of” aortic dissection, which likewise began “days” prior to the decedent's death. The death certificate listed as a second condition significantly contributing to the decedent's death “spinal cord infarct [secondary to] hematoma.”

The plaintiff brought suit against the two urologists and others. The plaintiff presented the opinion of a medical expert who opined that, considering the decedent's complaints: 1) it was a deviation from the standard of care for the doctors to have failed to order a CT scan with contrast of the patient's abdomen and pelvis on Feb. 16, 2004 in order to rule out kidney infarction (which the patient, in fact, did not have); 2) but for that deviation, they would have been able to diagnose the real cause (the aortic dissection) of the patient's symptoms; and 3) if that diagnosis had been made, surgery could have been performed in time to correct the patient's condition. The trial and appeals courts agreed with the defendants, however, that the plaintiff's expert did not say that the symptoms reported by the patient should have led the doctors to diagnose an aortic dissection; only that had they ordered a CT scan to rule out infarction of the left kidney they would have been more likely to diagnose the real cause of the patient's symptoms.

“Plaintiff is therefore seeking a determination that defendants were negligent in failing to order a diagnostic test to rule out a urological condition that decedent did not have because that test may incidentally have revealed an underlying and unsuspected cardiothoracic condition,” said the court. This connection between their alleged negligence (failure to order the CT scan) and the decedent's death was, ultimately, “simply too attenuated to raise an issue of fact with respect to causation,” said the court. It therefore reversed the denial of the defendants' motions for summary judgment.

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