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Medical Malpractice Case


This action involved a 62 year-old decedent who was a patient of the defendant family physician. The decedent suffered from well controlled hypertension. The decedent held a clerical job in a hospital in which the defendant, whose office was across the street, was an attending physician. The plaintiff contended that the patient, who knew about the allergy since childhood, had first become a patient of the defendant after she suffered a reaction when her prior physician prescribed the antihypertensive drug Maxide. The prior reaction required a hospitalization and the allergy was noted in the patient’s chart which was prepared when she first became a patient of the defendant.

On the evening in question, the patient suffered a severe migraine headache. She called the defendant, who was finishing his office hours, and he told her to come over. The plaintiff went to the office with her daughter. The daughter remained in the waiting room while the decedent saw the physician. The defendant advised the patient that her hypertension appeared out of control and that he wanted to try a new medication, Hyzaar. The defendant wrote a prescription and gave the patient a sample.

The patient took a pill in the defendant’s office and then returned home with her daughter. A short time later, the decedent began to feel nauseous and fatigued. The daughter became alarmed and telephoned the pharmacy. The daughter was advised by the pharmacy that the medication was contraindicated in patients with sulfa allergies. The plaintiff contended that, within a short period, the decedent experienced respiratory distress. She was taken to the hospital by ambulance, her lungs filled with fluid and she passed away.

The plaintiff’s expert cardiologist contended that prescribing this medication to the plaintiff was a clear deviation. The expert maintained that Hyzaar is contraindicated in patients with known allergies to sulfa medication because it contains hydrochlorozide, which is known to produce hydrochlorozide-induced pulmonary edema in individuals who are allergic to sulfa drugs. The expert maintained that, although the records from the decedent’s reaction to the Maxide, which was prescribed by her prior physician, were not available, the signs and symptoms were similar to those experienced on this occasion, and that it was likely that the same reaction had occurred. The expert maintained that once a patient experiences an initial reaction, subsequent incidents tend to be more serious.

The patient’s intake sheet, which would have listed her allergy to sulfa medications, had been purged from the patient’s chart. The defendant maintained that the intake sheet had been pulled from the chart three years ago in conjunction with the practice of doing so after an individual had been a patient of the practice for seven years. There were other mentions in the patient’s records regarding this allergy history. The plaintiff had also named the medical practice itself as a defendant on the theory that this practice of purging the intake sheet was negligent, and contributed to the failure of the defendant family physician to recognize that the decedent had a history of such an allergy.

The daughter brought her own claim for emotional distress, contending that, notwithstanding that she was not in the physician’s office when the decedent took the medication, she was aware of her mother’s allergy, was present when she became ill a short while later, was advised of the contraindication by the pharmacy and witnesses the respiratory arrest leading to death. The defense moved for Summary Judgment on this aspect and one and a half hours of conscious pain and suffering. The decedent was planning on retiring from work in approximately six months and the plaintiff made no income claims. The decedent left a husband and two adult children.

The defendant physician had a $1,000,000 policy. The case settled prior to trial for $1,350,000 including $1,000,000 from the physician and the balance from the practice itself.

The decedent’s daughter, who visited the defendant’s office with the decedent, but who was in the waiting room when the medication was dispensed to the plaintiff, had brought her own claim for emotional distress. The defense had moved for Summary Judgment of this claim, emphasizing that the plaintiff did not witness the allegedly negligent act. The plaintiff argued that, although she was not in the physician’s inner office when the medicine was actually dispensed, there was a sufficient amount of evidence of the requisite awareness of the malpractice to permit the jury to decide the issue. In this regard, the daughter stressed that she continued to be with her mother after leaving the doctor’s office and through the time she was rushed to the hospital a short time later, was aware of her mother’s allergy and prior reaction, that when her mother began feeling ill, approximately one hour after ingesting the medication, the daughter immediately suspected such an allergic reaction, that her suspicions were confirmed when she telephoned the pharmacy and that she observed the respiratory distress leading to the respiratory arrest and death. It should be noted that the court denied the defense motion. The defendant physician had one million dollars in coverage and the medical practice itself was also covered by a one million dollar policy.

The patient’s chart did not contain the intake sheet which made reference to the history of allergic reaction, and the medical practice had indicated in discovery that the intake sheet of the decedent, who had been a patient for some ten years, had been purged in the normal course of business after seven years. The plaintiff had also named the medical practice itself as a defendant, arguing that such purging of the chart was negligent, and it should be noted that in addition to the full one million dollar policy recovered against the physician, the plaintiff was able to resolve the case for an additional $350,000 obtained from the medical practice’s policy.

Estate of J.M. vs. Malinverni, et al. Docket No.: OCN-L-1865-05. Judge Frank Byuzcinski, July 2007.
Attorney for plaintiff: Charles Cerussi of Cerussi & Gunn, P.C., Red Bank, NJ and New York, NY.