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Bronx County, NY

In this medical malpractice action, the plaintiff contended that when the decedent, in his late 70s, presented to the defendant hospital with redness and swelling on top of the left hand that extended to arm, which had been present for two days, the defendant negligently failed to conduct testing of the fluid and negligently failed to determine that the condition was, in fact, cellulitis, for which antibiotics would not be indicated. The plaintiff maintained that because of the administration of antibiotics, the decedent developed a C. difficile (C. diff) that could not be effectively treated. The plaintiff contended that, as a result, the decedent experienced severe pain and suffering for approximately 18 months, including particularly extensive pain and suffering during the final six weeks that included the development of painful and infected open skin wounds that led to sepsis, and infections to abdominal aortic grafts. The defendant maintained that it was likely that the decedent presented with both infection and gout, and that the use of antibiotics was appropriate.

The decedent presented to the hospital with the fluid in June ________. The decedent was compromised because of health issues that included a ________ stroke that left him paralyzed on the right side, and although he could not generally speak, he could walk and go to the bathroom. The decedent resided with his wife in a one bedroom apartment. The wife worked as a bookkeeper, and the wife’s son would generally check up on the decedent, who otherwise stayed alone in the apartment during the workday. The prior health issues also included a history of two heart attacks, diabetes, and peripheral vascular disease that had required surgery a year earlier, slow growing prostate cancer that required no treatment – and an aortic aneurysm that required a graft some years earlier. At the time, the defendant hospital did not have an antibiotic stewardship program. The plaintiff established that the presence of fluctuance was inconsistent with an infection, and contended that the failure to conduct simple testing of the fluid resulted in the misdiagnosis of infection, and the contraindicated administration of antibiotics. A major theme of the plaintiff’s case on liability was that the defendant, “should test and not guess."

The plaintiff’s expert testimony reflected that the difficulties stemming from the overuse of antibiotics are heightened in the elderly and that the use of antibiotics caused the c-diff infection.

The defendant did not dispute that the fluctuance was not a sign of infection, and that testing of the fluid would have shown gout. The defendant contended, however, that it was likely that the patient did, in fact, suffer an infection in addition to gout, and that the administration of antibiotics was appropriate. The defendant pointed to records of a physician who provided treatment after the course of antibiotics that some improvement was noted. The plaintiff countered that there were no other findings of improvement, that the records were otherwise consistent with the plaintiff’s claims that the antibiotics provided no improvement. The plaintiff further contended that if the defendant’s position was accurate, it was likely that the alleged improvement would not be followed by a severe infectious process. The plaintiff contended that the improper use of antibiotics led to the development of c-diff, and that the decedent was unable to overcome the infection, succumbing approximately one-and-half years later.

The plaintiff maintained that the decedent required a total of some 11 hospitalizations during this period. The evidence reflected that up until several months preceding the death, the hospitalizations were generally a few days in duration. The evidence reflected that among the efforts made was a stool transfer procedure from the wife, with the hopes that the introduction of such bacteria into the decedent’s system would prompt his immune system to fight the c-diff infection. This effort and other efforts proved unsuccessful.

The plaintiff contended that towards the end, he developed an infection in the graft that had been previously created because of the aortic aneurysm, and that the pain and suffering during the final weeks of the decedent’s life was particular profound. The wife testified that whenever touched, the decedent howled in pain.The jury found for the plaintiff and awarded $________ for past pain and suffering. $________ was added to the verdict as stipulated special damages/medical expenses

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