We are often retained as Trial Counsel to assist other law firms in the trial of complex medical malpractice cases. Recently, WRSMH attorney Edward Bithorn handled one such case where we were contacted by the initial law firm after discovery had been completed and the case was on the trial calendar. The case involved a 64-year-old woman with Parkinson's Disease who was admitted to an ICU with a life-threatening systemic infection known as septicemia. After 3 weeks in the ICU she was transferred to the regular floor where she developed pulmonary edema, congestive heart failure and malnutrition, while under the defendant physicians' care. The pulmonary edema occurred because of an excess of fluid from the pulmonary vessels accumulating in her lungs. The fluid caused the heart to pump inefficiently, resulting in congestive heart failure. Instead of prescribing diuretic medications to reduce the fluid, nothing was given, nor were her intravenous fluids limited. Compounding the problem was the malnutrition which defendants attempted to correct by feeding the patient through a nasogastric tube. Because she suffered from Parkinson's, a neuromuscular condition that affected her swallowing, she was at risk for aspiration from the feeding solution. The edema that went untreated also made it impossible for her bowels to absorb the nasogastric feedings. We claimed that total parenteral nutrition, in which nutrients are infused directly into the blood vessels instead of through the gastrointestinal tract, was the appropriate treatment. Unfortunately it was not given and the patient aspirated, went into respiratory arrest, and sustained brain damage. Defendants claimed her arrest was a result of her complicated medical conditions, but not malpractice.
The client was in a nursing home in a coma for three years before she died. She was survived by a husband and three adult children. The settlement was reached as Ed began jury selection.
Although there was no loss of support, the usual element of damages in a wrongful death case, Ed concentrated on the pain and suffering decedent suffered prior to her death. Defendants argued that because of the coma, she had no conscious awareness of pain and suffering and the law would not allow a recovery. Ed was prepared to prove that the structural areas of the brain responsible for receiving and interpreting painful stimuli were intact and therefore the notations of responsiveness that appeared in the nursing home records demonstrated her awareness of her condition.