Loading...
HomeMy WebLinkAbout2006-5353 ANNA THOMPSON, EXECUTRIX OF : IN THE COURT OF COMMON PLEAS OF THE ESTATE OF THOMAS E. : CUMBERLAND COUNTY, PENNSYLVANIA THOMPSON, DECEASED, AND : ANNA THOMPSON, INDIVIDUALLY : AND IN HER OWN RIGHT, : PLAINTIFF : : V. : : HOLY SPIRIT HEALTH SYSTEM, : t/d/b/a HOLY SPIRIT HOSPITAL, : DEFENDANT : 06-5353 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. OPINION AND ORDER OF COURT Bayley, J., July 30, 2009:-- Plaintiff, Anna Thompson, Executrix of the Estate of Thomas E. Thompson, Deceased, and Anna Thompson, Individually and in her own right, filed a complaint against defendant, Holy Spirit Health System, t/d/b/a Holy Spirit Hospital, alleging negligence in the care provided in its emergency room to Thomas E. Thompson. There is evidence that Thomas Thompson experienced chest pain, shortness of breath and sweating on September 15, 2004. Anna Thompson started to drive him to Holy Spirit Hospital. While en route she pulled her car to the side of the road and called 911. An EMS unit responded and transported Thompson to the emergency department of the Holy Spirit Hospital where he arrived at 5:58 p.m. He was initially seen by a triage nurse at 6:15 p.m. Thompson went into cardiac arrest at 6:43 p.m. Attempts to resuscitate him failed and he was pronounced dead at 7:15 p.m. An autopsy showed that he died of an aortic dissection with rupture of the pericardial space. 06-5353 CIVIL TERM Defendant filed a motion for summary judgment. It maintains that, based on the expert reports filed on behalf of plaintiff, it cannot meet its burden of proving legal causation. Plaintiff has produced expert reports that include the following: According to the records, Mr. Thompson arrived at Holy Spirit Hospital Emergency Department and care was transferred to the staff at 1758. The first nursing documentation was at 1815 when the triage note was written. Even though Holy Spirit Hospital policy states that an RN is to assess every presenting patient within the first ten minutes of the patients arrival in the department, this patient waited 17 minutes to be triaged. After this incomplete triage note was written, Nurse Norton initiated a chest pain protocol verbally to the secretary and wrote, “Chest pain protocol initiated. Dr. Alfano aware”. None of the STAT interventions in this protocol were initiated. * * * Mr. Thompson had classic risk factors for cardiovascular disease and his presentation was characteristic for a cardiovascular emergency. These presenting signs and symptoms include chest pain, diaphoresis, relative hypotension, shortness of breath, and poor perfusion of the extremities. Proper emergency department care of such a patient should include immediate placement in a room equipped with cardiac monitoring and resuscitation equipment, and rapid assessment and therapy by physician and nursing personnel. It appears from the record that nearly 50 minutes elapsed between the assumption of Mr. Thompson’s care by Holy Spirit Hospital personnel and his cardiac arrest. During this interval, there is no evidence of performance and interpretation of an electrocardiogram, physical exam and assessment by a physician, or the administration of additional therapy. Should it be established that this is an accurate representation of his emergency department stay, it would constitute negligence on the behalf of the emergency department personnel responsible for his care. Based on records reviewed for this report, this negligence rests primarily with nursing personnel. The role of physicians in his care prior to the cardiac arrest is uncertain. No documentation of physician assessment is provided. There is an untimed note on the patient observation/assessment sheet which states: “chest pain protocol initiated, Dr. Alfano -2- 06-5353 CIVIL TERM aware.” * * * The autopsy suggests the patient had an ascending aortic tear with retrograde and antegrade progression of dissection and that the rupture of the aorta into the pericardium caused the patient’s ultimate death. The question seems to be at what time did the physician get involved in the patient’s care, and was the possibility of an aortic dissection entertained. The record is very unclear as to when the physician actually saw the patient. Other than the insertion of an intravenous line, the physician’s orders 62 minutes after arrival seemed to indicate that the diagnosis was likely related to cardiac ischemia. The order for a chest x-ray must have helped to diagnosis aortic tear but other modalities would be more useful, including CT scan and echo. The emergent nature of the problem did not appear in evidence in ER report. My previous communication suggested that the plaintiff’s evaluation at Holy Spirit Hospital was delayed and this delay reduced an opportunity to attempt an emergent and “heroic” operative intervention for My opinions have been given with a reasonable his aortic dissection. degree of medical certainty. It is likely that the delayed care did marginally increase the risk of harm and ultimate death that came to Mr. Thompson. It does appear that Mr. Thompson died from complications of his aortic dissection. His dissection was a bad one that resulted in intrapericardial rupture, leading to cardiac tamponade and With urgent diagnosis and high level cardiac surgical death. treatment, presumably available at Holy Spirit Hospital, the patient would have had a chance of surviving the catastrophic dissection. The likelihood of survival would be dependent upon many of the demanding surgical issues encountered and the speed with which Mr. It is unknown Thompson could have gotten into the operating room. precisely as to whether or not he would have survived, but my opinion suggests that without operative intervention he had no chance. Within my best medical judgment and with experience in treating this disease personally, I believe he could have had a 1 in 3 likelihood of surviving with prompt diagnosis and emergent treatment with an advanced and experienced cardiac surgical team. (Emphasis added.) Hamil v. Bashline, Defendant, citing 481 Pa. 256 (1978), maintains that the opinion of the medical expert that Thomas Thompson “could have had a 1 in 3 -3- 06-5353 CIVIL TERM likelihood of surviving with prompt diagnosis and emergent treatment with an advanced and experienced cardiac surgical team,” does not meet the burden of proof necessary Hamil, to submit an issue of legal causation to a jury. In the Supreme Court of Pennsylvania held: . . . where medical causation is a factor in a case . . . it is not necessary that the plaintiff introduce medical evidence—in addition to that already adduced to prove defendant’s conduct increased the risk of harm—to establish that the negligence asserted resulted in plaintiff’s injury. Rather, once the jury is apprised of the likelihood that defendant’s conduct resulted in plaintiff’s harm, [it is for the] jury, and not the medical expert, the task of balancing probabilities. In so saying we do not intend to undermine the well-established standard of “reasonable degree of medical certainty” as the accepted norm for medical opinions on causation. But we think it would be unreasonable and unrealistic in this type of case to expect a physician to state with a “reasonable degree of medical certainty” what might have happened when the law . . . recognizes the contingencies involved. . . . Where there is at issue the a case of adequacy of medical services rendered . . . prima facie liability is established where expert medical testimony is presented to the effect that defendant’s conduct did, with a reasonable degree of medical certainty, increase the risk that the harm sustained by plaintiff would occur.1 (Footnotes omitted.) (Emphasis added.) Hamil, In the Court adopted the Restatement (Second) of Torts § 323(a) (1965), establishing a relaxed degree of certitude normally required in a medical negligence claim to submit an issue of legal causation to a jury. The Court stated: When a defendant’s negligent action or inaction has effectively terminated a person’s chance of survival, it does not lie in the defendant’s mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If __________ 1 See also, Piso v. Piso,Clark v. Hoerner, 761 A.2d 1215 (Pa. Super. 2000); 362 Pa. Super. 588 (1987). -4- 06-5353 CIVIL TERM there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. once a We agree with this statement of the law and hold that plaintiff has demonstrated that defendant’s acts or omissions , in a have increased the risk of situation to which Section 323(a) applies, 9 harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact. (Emphasis added.) 9 The quantum of proof necessary to warrant a jury verdict for the plaintiff is, as we have stated earlier, see p. 265, supra, a preponderance of the evidence. This is made clear in Comment (a) to Section 433B of the Restatement: “a. Subsection(1) states the general rule [that the burden of proof as to causation is on the plaintiff]. As on other issues in civil cases, the plaintiff is required to produce evidence that the conduct of the defendant has been a substantial factor in bringing about the harm he has suffered, and to sustain his burden of proof by a This means that he must make preponderance of the evidence. it appear that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the harm. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation and conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.” See also Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d In the instant case, Dr. Wecht testified to a 242, 272 N.E.2d 97 (1971). 75% chance of recovery had prompt treatment been administered to Mr. Hamil by Bashline; this was sufficient basis upon which the jury could have concluded that it was more likely than not that the defendant’s omissions were a substantial factor in causing Mr. Hamil’s death. Of course, as was done here, a defendant may present expert testimony to the opposite effect, i.e., the unlikelihood of survival even had the defendant exercised due care; as always, -5- 06-5353 CIVIL TERM resolution of conflicting testimony is for the jury. (Emphasis added.) sub judice, In the case defendant seizes upon Footnote 9 in support of its motion for summary judgment. Defendant acknowledges that to make a prima facie case of legal causation plaintiff only has to introduce the opinion of an expert within a reasonable degree of medical certainty that defendant’s conduct increased the risk of harm to Thomas Thompson, and it is then for a jury to determine whether such increased risk was in turn a substantial factor in bringing about the resultant harm. Defendant argues, however, that when plaintiff’s expert offered an opinion in a report that Thompson “could have had a 1 in 3 likelihood of surviving with prompt diagnosis and emergent treatment with an advanced and experienced cardiac surgical team,” summary judgment is warranted. We disagree because plaintiff’s expert has opined in a report that the delay in treating Thompson did increase the risk that the harm sustained by him would occur. That alone is sufficient. There is no basis for the entry of summary judgment against plaintiff. ORDER OF COURT AND NOW, this day of July, 2009, the motion of defendant for IS DENIED. summary judgment, By the Court, Edgar B. Bayley, J. -6- 06-5353 CIVIL TERM Lisa M. B. Woodburn, Esquire For Plaintiff Thomas M. Chairs, Esquire For Defendant :sal -7- ANNA THOMPSON, EXECUTRIX OF : IN THE COURT OF COMMON PLEAS OF THE ESTATE OF THOMAS E. : CUMBERLAND COUNTY, PENNSYLVANIA THOMPSON, DECEASED, AND : ANNA THOMPSON, INDIVIDUALLY : AND IN HER OWN RIGHT, : PLAINTIFF : : V. : : HOLY SPIRIT HEALTH SYSTEM, : t/d/b/a HOLY SPIRIT HOSPITAL, : DEFENDANT : 06-5353 CIVIL TERM IN RE: MOTION OF DEFENDANT FOR SUMMARY JUDGMENT BEFORE BAYLEY, J. AND EBERT, J. ORDER OF COURT AND NOW, this day of July, 2009, the motion of defendant for IS DENIED. summary judgment, By the Court, Edgar B. Bayley, J. Lisa M. B. Woodburn, Esquire For Plaintiff Thomas M. Chairs, Esquire For Defendant :sal