In this action, the 49 year-old plaintiff contended that he presented to the defendant family physician on December 4, 2007 with signs and symptoms of a TIA, including light-headedness, and blurred and double vision. The plaintiff maintained that despite such presentation the defendant negligently failed to institute anti-platelet medication, refer the patient to a neurologist and/or advise the patient and his wife of the need to immediately visit the emergency room in the event the patient suffered stroke-like symptoms in order to commence clot busting therapy within the required three hour window.
The plaintiff contended that he developed stroke-like symptoms at approximately 10:00 a.m. on December 31st and an ambulance was not summoned until approximately 4:00 p.m. The plaintiff contended that because of the failure to obtain timely treatment, he developed “locked-in syndrome” in which the plaintiff, who is cognitively intact, is paralyzed cannot speak and can only communicate by moving his eyes.
The plaintiff’s expert neurologist and expert internist would have contended that the defendant clearly deviated in failing to appreciate that the patient presented with signs and symptoms of a TIA, and that such an event could well be the precursor of a major stroke. The plaintiff maintained that blood thinning medication, including aspirin, should have been administered and a referral to either a neurologist or a ophthalmologist should have been made. The plaintiff pointed out that the defendant’s response to the visual symptoms was to refer the plaintiff to an optometrist. The optometrist did not detest abnormalities.
The plaintiff further contended that it was critical to advise the patient and his family that there was only a three hour window to start clot busting treatment and that the failure of the defendant to do so deprived the plaintiff of a substantial chance to reduce permanent injury. The defendant indicated that he did consider that a TIA was within the differential diagnosis and the plaintiff would have argued that it was clear that the defendant could not justify failing to advise for the use of aspirin.
The evidence reflected that even if appropriate treatment was started at the time, the plaintiff would still have a 97% chance of suffering a stroke. The evidence also indicated that even is TPA was started within the three hour window, there was only a 35% chance of reducing the extent of the permanent injury.
The plaintiff did not dispute that there was a 3% chance of avoiding the stroke and a 35% chance that timely clot busting treatment would have reduced the impact of the stroke. The plaintiff would have argued that such 35% chance was very significant, especially in view of the unusually severe nature of the “locked-in” syndrome, and that the deprivation of such a chance of reduced injury warranted very substantial compensation. The plaintiff would have maintained that although he is unable to move or communicate in a manner other than moving his eyes, he remains fully aware of the nature of his plight.
The case settled prior to trial for the $1,000,000 policy limits.
REFERENCE
Plaintiff’s internal medicine expert: Kevin E. Bell, M.D. from Warren, N.J. Plaintiff’s neurological expert: Richard Lechtenberg, M.D. from Brooklyn, N.Y.
J.B. v. P.A., et. al. Docket no. MON-L-3819-08 1-10-12
Attorney for Plaintiff, Charles A. Cerussi of Cerussi & Gunn in Shrewsbury, N.J.
COMMENTARY
Although this case entailed evidence of clear deviation and particularly severe injuries involving “locked-in” syndrome, the undisputed evidence reflected that the plaintiff would only have had a 3% chance of avoiding the stroke even if proper care had initially been provided, and only a 35% chance of reducing the severity of the stoke if he had presented for clot busting therapy within the three hour window of opportunity. The court would have instructed the jury under Scaffidi that any gross award could be reduced because of the preexisting condition. It is felt that when confronted with the chance of a verdict that was far above the typical physician’s coverage of $1-2 million, the pressures on the carrier to resolve the case within the policy and thereby avoid potential excess/bad faith exposure were especially great.
