Landmark Case for Zwiebel & Fairbanks

Facts: Pltf.'s decedent, a 62-year-old retiree at the time, was involved in a single-car motor vehicle accident on 4/18/95. He was taken by ambulance to Deft. hospital and arrived at 11:05 AM. Emergency room records indicate that decedent presented was having difficulty breathing, and Pltf. claimed that he also showed signs of respiratory distress upon arrival. Pltf. expert testified that a chest tube should have been inserted when respiratory difficulties and suspicion of subcutaneous emphysema were noted. Evidence indicated that at 12:30 PM decedent coded and died. At the time that he coded, decedent had just completed having knee X-rays performed. Pltf.'s expert testified that a chest tube should have inserted almost immediately upon arrival, that decedent should have been monitored closely and that if a chest tube did not solve the respiratory problems, he should have been monitored closely and that if a chest tube did not solve the respiratory problems, he should have been intubated and that this would have saved his life.

Defts. denied that Pltf. showed signs of serious respiratory distress, and argued that the subcutaneous emphysema did not require the insertion of a chest tube. Defts. contended that the proper procedure would be to perform a CAT scan to see if decedent had developed a pneumothorax, which was done. Defts. experts contended that the hospital followed proper procedures, and that the stress of the accident could have been a contributing factor in his death. Deft.'s expert pathologist testified that decedent had a life expectancy of 2-3 years, based of a claim of unrelated medical conditions. The jury found, however, that decedent had a 12-year life expectancy. Defts. also noted that the death certificate listed the cause of death as exsanguination, and that decedent had a small tumor in his kidney. There was no independent finding of negligence against Deft. Hospital. Demonstrative evidence: X-rays; emergency room records; autopsy reports; photos of Pltf.'s vehicle. Offer: $100,000; demand: $900,000 reduced to $250,000. Jury deliberation: 5 hours. Carrier: MLM.

Pltf. Experts: Dr. Burton Glass, surgeon, Rockville Centre.
Deft. Experts: Dr. Anthony Mustalish, emergency medicine, Manhattan; Dr. Hiroshi Nakazawa, pathologist, Goshen (performed autopsy); Dr. John Hodgson, surgeon, Larchmont; Dr. Timothy Haydock, emergency medicine, Katonah.