MEDICAL MALPRACTICE-EXPERTS-CAUSATION-REMITTITUR

February 22nd, 2018 by Rieders Travis in Medical Malpractice

Tong-Summerford v. Abington Memorial Hospital, 2018 Pa. Super. LEXIS 68 (January 30, 2018) Stevens, P.J.E.  This case involved a feeding tube which was positioned in the left lung erroneously.  This caused the patient’s death.  The verdict was $5M, with 30% to wrongful death claim and 70% to the survival claim.  The expert testimony at trial was sufficient to find that the doctor violated the standard of care by failing to order another study to make sure the feeding tube was in the stomach and not the lung.  There is no entitlement to judgment n.o.v.  The criticism of care was not a misinterpretation of the x-ray but rather failing to recognize that the x-ray was inadequate and failing to order an additional x-ray to confirm placement of the feeding tube.  Counsel for patient asked an expert on radiology on cross-examination whether a first-year resident would be able to identify the path of the feeding tube from the image presented on the x-ray.  The court found there was nothing wrong with that question and did not give the misimpression of incompetency.  It also found the issue waived.  The trial court did not abuse its discretion in permitting an expert to opine that the deviations from the standard of care increased the risk of harm.  The doctor was board certified in radiology and had enough experience to give an opinion that the misplacement of a feeding tube in plaintiff’s lung increased the risk of harm to decedent.  Other claims were found to be waived.  The court found the $5M jury verdict was not excessive or punitive.  The court explained the damages in the wrongful death action as well as a survival action.  There was nothing new or novel in the court’s explanation.  The jury’s $1.5M award for wrongful death and $3.5M for conscious pain and suffering caused by the negligence of defendants fell within the uncertain limits of fair and reasonable compensation.  There was no abuse of discretion in the trial court decision to permit the doctor to reference an earlier x-ray, not specifically at issue in the negligence case.  In the context of the entire testimony, it helped the jury understand the standard medical practice pertaining to radiological studies taken to confirm the proper insertion of a feeding tube.  The earlier x-ray was within defendant doctor’s medical records which the expert said he reviewed.  Therefore there was no surprise or prejudice.  The testimony was sufficient to establish both causation and notice with respect to corporate negligence.  The evidence was not insufficient.  There was sufficient evidence to support the conclusion that the hospital’s failure to formulate and implement appropriate policies and procedures in 2008 with respect to chest x-rays was a factual cause of the patient’s death.  There were no written policies or protocols in place in 2008 regarding the performance of the chest x-ray.  There was no chest x-ray obtained as ordered by a doctor.  The technicians were left on their own to determine what anatomy to image.  There was an inconsistency within the department regarding how a chest x-ray should be performed.  Plaintiff’s expert stated that the x-ray failed to include portions of the patient’s airway to enable the physician to make a correct interpretation.  This was enough to support a corporate negligence claim.  Plaintiff’s admitting he was not a radiology technologist who had taken x-rays and has not positioned a patient for over 30 years.  Nevertheless, he was still qualified to testify by virtue of his experience in the radiology field and active medical practice.