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Queens, New York
On March 6, 2000, the plaintiff suffered an asthma attack. She was 22 years old and in her fifth year of pharmacy school at St. John’s University, Queens, New York. An ambulance was called and she was taken to Flushing Hospital Medical Center and admitted under her primary physician. She was treated in the Emergency Room by defendant, Despite being admitted at 1:40 pm, the patient was not intubated until 3:00 pm, when she was in a state of severe respiratory acidosis, with a carbon dioxide level of 90 and a blood Ph of 7.03.
The patient was then transferred to the Medical Intensive Care Unit, where she then came under the care of defendants. While in both the Emergency Room and upon transfer to the MICU, the patient's pupils were noted to be equal and reactive to light and she was noted to be able to see. After transfer to the MICU, she was placed in an induced coma, as well as on mechanical ventilation. On March 8, 2001, a chest x-ray at approximately 8:30 pm showed a pneumothorax, however, according to defendant, this information was never communicated to him. Therefore, the pneumothorax was not treated until approximately 13 hours later, on March 9, 2001 at about 10:00 am when a chest tube was inserted to re-inflate the lung. The plaintiff suffered episodes of severe oxygen desaturations.
During this hospitalization, numerous blood studies were obtained on a daily basis with as much as 70-90 ccs of blood being drawn from the plaintiff, each day from March 6, 2001 through March 18, 2001. Because of this Ms. became anemic.
In addition, presumably, it was felt by the residents that the plaintiff had been overdosed with the neuromuscular blocking agent, Norcuron, used to maintain the induced coma, as they had consulted the drug manufacturer as to what effect, if any, hemodialysis might have regarding drug over dosage. There were numerous articles in the plaintiff’s medical chart, as well as a copy of the letter to the drug company and their response.
The patient finally awoke and responded on March 18, 2001. However, when she woke up she was still unable to move her extremities and she was now noted to be blind. There was not a single entry from March 7, 2001 to March 18, 2001 that anyone had checked the plaintiff’s pupils. In addition, there was no entry in the chart after defendants learned that she was blind, discussing what happened during the hospitalization to cause this. The silence in the chart was deafening if not incriminating. The defendants in the hospital record attempted to blame her flaccidity and blindness on Devic’s Disease, an obscure demyelinating disease, only to later stipulate at the time of trial that it had nothing to do with plaintiff’s injuries.
She was transferred to New York Hospital-Rusk Rehabilitation, where she remained until late May. They diagnosed her blindness and brain infarcts demonstrated on MRI and CT Scan, due to static hypoxic encephalopathy. Her optic nerves had been destroyed from a lack of oxygen.
Plaintiff’s expert regarding asthma, explained to the jury the exact mechanism as to how plaintiff’s optic nerve was damaged by the loss of oxygen and emphatically maintained that the hypoxia was preventable. He pointed to the delay in intubation and the delay in treating the pneumothorax on March 8, 2001, as well as the iatrogenic anemia caused by the doctors inordinate amount of blood work being ordered and drawn throughout the hospitalization as being the substantial factors in causing the decreased oxygen to plaintiff’s optic nerve resulting in blindness.
Then patient’s treating neuro-ophthalmologist testified with respect to both his examination of the plaintiff as well as his opinions regarding negligence. He testified that the failure to control the acidosis, anemia, low oxygen, increased carbon dioxide, all of which he stated constituted a metabolic mess and all of which, in conjunction, he testified caused permanent white out of the patient’s optic nerve, resulting in blindness. He testified that all was preventable. He further testified that the failure to check the patient’s pupils while she was intubated, on a respirator, in an induced coma, in the MICU for 10 days, deprived her of the opportunity to save her vision. Both doctors maintained that had the pupils been checked and initial signs been addressed by increasing the oxygen concentration of the blood and by limiting the amount of blood being drawn which caused the iatrogenic anemia, her vision could have been saved.
Additionally, the asthma expert addressed the total lack of supervision and inappropriate avenues of communication between the residents and the attending physicians in charge of critical care. He testified, in his opinion, that this impacted on the episodes of hypoxia and the lack of treatment thereof, as well as the anemia and metabolic and respiratory acidosis, which caused and contributed to her blindness.
The defense in this case maintained that the patient had a vicious asthma attack and that when she presented to Flushing Hospital Medical Center and to the defendants herein, she was at “death’s door”. They maintained that the defendants saved her life and that her blindness was caused by permissive hypercapnea, which was necessary and her blindness was unavoidable. The defense put on a parade of experts. an ophthalmologist, a pulmonologist and a physician in internal medicine and critical care testified on behalf of the hospital. On behalf of doctors, a neurologist with pharmacology training,, a pulmonologist and critical care physician, as well as, an economist, testified as experts.
A defense expert testified that the care in the Emergency Room was superb, although defendant ER doctor was not familiar with various parameters of ABG’s which showed respiratory acidosis and respiratory failure. The witness agreed that there should be close monitoring of the patient’s respiratory status and that there was appropriate treatment after the pneumothorax was recognized on the evening of March 8, 2001. However, on his second day of testimony he realized he was looking at the wrong day of notes, which indicated that follow-up studies had been ordered and conceded that on the day of the pneumothorax nothing was done after 8:00 pm until the following morning. He also conceded that following the pneumothorax for a period of days, desaturations did occur. He also agreed that there should absolutely be monitoring of the patient’s eyes on a daily basis when she is on a respirator in an induced coma after an asthma attack, but conceded that there was not a single entry in the records regarding evaluation of the pupils from March 7, 2001 through March 18, 2001.
The hospital’s expert ophthalmologist, testified that the patient’s blindness was a mystery to him however, he was not familiar with the hospital records from March 7, 2001 through March 18, 2001, the crucial period of time during the hospitalization when plaintiff lost her vision.
The pulmonologist and critical care expert on behalf of the doctors testified that the elevated PCO2 could not have been avoided in this case but agreed that people generally don’t go blind from permissive hypercapnea. He also conceded that a tension pneumothorax could cause a reduction in the blood flow going from the heart and could even cause death. He also testified that a loss of oxygen is what causes damage to both the brain and the optic nerve. He testified that supervision and communication between the attendings and staff was mandatory. He established himself as an expert on supervision and even did a study with respect to suboptimal care by an ICU team. When asked if there was suboptimal care by this ICU team, he hesitated and then was asked “if you answer yes doctor, then the case would be over, correct”. He further testified, despite all defense experts minimizing the import of the iatrogenic anemia, that after she was determined to be blind and an order was written for a sign to be placed above her bed stating “no daily blood work unless ordered by MD” that he had never heard or seen anything like that in his life.
The neurologist with pharmacy training, who testified on behalf of the doctors opined that the significant elevations in the blood PCO2 resulted in the neurologic problems plaintiff sustained in her optic nerves and brain, causing blindness. He also testified that she was employable, that the Federal government needed people like her in poison control, after which he seemed to break up on the stand and then apologized to the Court, stating that he didn’t get enough sleep the night before.
Lastly, the defense, on behalf of the doctors, produced an economist, whose testimony was elicited by the defense to give defendants a bargain with respect to lost earnings, stating that plaintiff should be compensated for lost earnings at the lowest possible level, $65,000 annually.
On behalf of plaintiff, an economist testified that lost earnings should be in the vicinity of $80,000 to $86,000. He also testified that the defendants generally do not produce an economist to testify at trial unless they are desperate.
Silberstein, Awad & Miklos, P.C.
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