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Failure to Diagnose Unindicated Condition is Not Medical Malpractice


Eleven days after having her gallbladder surgically removed, a woman presented to the emergency room complaining of pain at the operative site and abdomen. The ER physician thought the woman may have been suffering from a post-operative infection. The ER physician requested a surgical consultation. The consulting surgeon thought the woman had a Clostridium difficile infection. The ER physician agreed and treated the woman with intravenous fluids and an antibiotic. She was discharged later that day in stable condition, after her abdominal complaints had resolved.

 

Four days later the woman was admitted to a medical center where she was found to have two large liver abscesses and right pleural effusion. Five days later the abscesses were drained. Twenty-two days after she was admitted to the medical center, she was discharged and the condition was noted to have been resolved. Afterward, the woman suffered from a series of complications, leading to repeated hospitalizations and nursing home stays, and developed, inter alia, a MRSA infection secondary to decubitus ulcers. Over a year after her ER visit, the woman died.

 

A representative of the woman’s estate brought medical malpractice claims against the hospital, ER physician, and consulting surgeon. The claims alleged that the defendants failed to provide proper treatment and failed to diagnose the liver abscesses. The Bronx County Supreme Court denied the ER physician's motion for summary judgment.

 

The Appellate Division of the New York Supreme Court, First Department, reversed. The court held that the ER physician made a prima facie showing of entitlement to summary judgment and the lack of testing for a post-operative infection, which allegedly would have led to the incidental discovery of the unindicated liver abscesses, did not constitute medical malpractice.

 

The ER physician made a prima facie showing of entitlement to summary judgment. He did so by submitting his expert affirmation, opinions of other defense experts, and the woman's medical records. The defense expert opined that imaging studies were not indicated given the absence of fever and the absence of significant abdominal, rebound, or guarding tenderness. He also opined that there was no reason to suspect liver abscess or admit the woman after she remained stable. Additionally, he opined that the treatment rendered at the hospital was not causally related to the woman's death, as her liver abscesses had long resolved by the time of her death and the conditions she subsequently developed were unrelated to the abscesses. In opposition, the woman’s representative failed to raise a triable issue of fact. The plaintiff’s surgical expert did not address any of the contraindications as to the severity or nature of the woman's illness when she arrived at the ER.

 

Lack of testing for post-operative infection, which allegedly would have led to the incidental discovery of the unindicated liver abscesses, did not constitute medical malpractice. The plaintiff’s surgical expert did not identify any basis to suspect the presence of liver abscesses. The failure to investigate a medical condition that would have led to an incidental discovery of an unindicated condition does not constitute medical malpractice. The alleged four-day delay in diagnosis and treatment did not constitute medical malpractice in the absence of evidence of a causal relationship to the woman's death.

 

The Appellate Division of the New York Supreme Court reversed the trial court’s denial of the ER physician’s motion for summary judgment.

 

See: David v. Hutchinson, 2014 WL 391742, 2014 N.Y. Slip Op. 00600 (N.Y.A.D. 1 Dept., February 4, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives, January 2012 Report: Hospital-Acquired Infections: Who Is Liable and Why?

 

 

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