EMAIL TO A FRIEND COMMENT

 

Failure to Diagnose and Treat DVT; Defendant’s Burden of Proof


A woman received prophylactic anti-coagulation therapy while she was a patient in a hospital. The doctor who discharged the woman declined to order the continuation of prophylactic anti-coagulation therapy because he found no signs or symptoms indicative of deep vein thrombosis or pulmonary embolism. A week after she was discharged, the woman had a follow up appointment with the discharging physician and complained of additional symptoms. The doctor did not diagnose her with deep vein thrombosis and did not prescribe prophylactic anti-coagulation therapy. The woman subsequently died from a pulmonary embolism caused by deep vein thrombosis.

 

The woman’s estate sued the doctor. The estate’s medical expert opined that the doctor departed from good and accepted medical practice when, despite the symptoms the woman allegedly was experiencing at the follow-up office visit, the doctor failed to diagnose her with deep vein thrombosis, failed to properly treat that condition, and failed to take appropriate steps to prevent her from developing a pulmonary embolism as a result of that condition. The woman’s boyfriend testified concerning the woman's complaints about pain, her shortness of breath, and leg swelling.

 

The doctor's expert opined, based on the medical records and deposition testimony, that, in light of the absence of signs or symptoms indicative of deep vein thrombosis or pulmonary embolism, the doctor's actions in declining to order the continuation of prophylactic anti-coagulation therapy after the woman was discharged from the hospital, were in accordance with good and accepted medical practice. The doctor moved for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death. The Kings County Supreme Court denied the doctor’s motion.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed. The court held that the doctor made a prima facie showing that he did not depart from good and accepted medical practice. However, the doctor failed to make an independent prima facie showing that no claimed departure was a proximate cause of the woman's injuries. Thus, the woman’s estate defeated the doctor's motion because it raised a triable issue of fact as to whether the doctor departed from good and accepted medical practice. The court noted the relevant portions of the deposition testimony of the woman's boyfriend, upon which the estate's expert relied, were not hearsay.

 

The court held that in an action sounding in medical malpractice, a defendant moving for summary judgment must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the patient's injuries. Once a defendant has made such a showing, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only as to those elements on which the defendant met the prima facie burden.

 

The court held that the doctor made a prima facie showing that he did not depart from good and accepted medical practice. The doctor submitted the deposition testimony of the parties, medical records, and the affirmation of his medical expert. The doctor's expert opined, based on the medical records and deposition testimony, that, in light of the absence of signs or symptoms indicative of deep vein thrombosis or pulmonary embolism, the doctor's actions in declining to order the continuation of prophylactic anti-coagulation therapy after the woman was discharged from the hospital, were in accordance with good and accepted medical practice. However, the doctor failed to make an independent prima facie showing that no claimed departure was a proximate cause of the woman's injuries.

 

The woman’s estate defeated the doctor's motion for summary judgment with respect to the medical malpractice cause of action, because it raised a triable issue of fact as to whether the doctor departed from good and accepted medical practice. The court held that the estate raised, through the affirmation of her medical expert, a triable issue of fact as to whether the defendant departed from good and accepted medical practice when, despite the symptoms the decedent allegedly was experiencing at the follow-up office visit, the doctor failed to diagnose her with deep vein thrombosis, failed to properly treat that condition, and failed to take appropriate steps to prevent her from developing pulmonary embolism as a result of that condition. The court also held that, because the cause of action alleging wrongful death was premised on the doctor's alleged medical malpractice, the same conclusions applied as to this cause of action.

 

The relevant portions of the deposition testimony of the woman's boyfriend, upon which the estate's expert relied, were not hearsay. The court reasoned that the boyfriend's testimony concerning the woman's complaints about pain was not hearsay, as it was not offered to prove the truth of the matter asserted. Further, his testimony concerning the woman's shortness of breath and leg swelling was not hearsay, as it was based, at least in part, on his personal observations.

 

The Appellate Division of the New York Supreme Court, Second Department, affirmed the trial court’s denial of the doctor’s motion for summary judgment dismissing the causes of action alleging medical malpractice and wrongful death.

 

See: Matos v. Khan, 2014 WL 3732819, 2014 N.Y. Slip Op. 05520 (N.Y.A.D. 2 Dept., July 30, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2013 Report: Thicker Than Water: Liability When Blood Clots Cause Injury or Death

 

See also Medical Law Perspectives, May 2013 Report: Drugs, Dosage, and Damage: Physician Liability for Prescribing or Administering Medication

 

 

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