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Necessary care unreasonably withheld by HMO - Physician makes assessment and provides treatment without clinical examination - Allergist allegedly negligent in failing to personally examined patient during course of immunotherapy treatments.

Dutchess County, New York

The plaintiff brought this action against the defendant allergist, to whom she was referred by her primary care physician for allergy symptoms. The plaintiff alleged that the defendant prescribed a course of therapy without first examining the patient, allegedly causing her to suffer severe complications. The plaintiff suffered respiratory arrest leading to heart attack. The plaintiff claimed that she sustained permanent neurologic injuries stemming from hypoxia secondary to the respiratory and cardiac arrest. In ________, after examining the female plaintiff, her HMO primary care physician prescribed allergy testing which included blood work. The plaintiff’s tests indicated that she had allergies to, among other things, dogs, cats, dust, pollen and wheat. The plaintiff was a baker and worked with wheat flour which contained the allergic component wheat. She also had asthma.

The evidence revealed that the primary care physician referred the plaintiff to a consulting allergist in the defendant HMO’s regional office. Without examining the plaintiff, the consulting allergist reviewed the plaintiff’s history and her tests and prescribed immunotherapy, consisting of once-a-week shots of specially formulated allergen extract containing small doses of the plaintiff’s allergens. Immunotherapy brings the patient to a "maintenance level" at which time she no longer has allergic reactions to things that cannot be eliminated from her environment.

The plaintiff’s serum was specially mixed on the defendant HMO’s premises.

When the serum ran out, the plaintiff returned to the HMO’s allergy department in ________. Without examining the plaintiff, a second allergist, the codefendant, ordered more of plaintiff’s serum for her to continue immunotherapy. The plaintiff contended that after her last three treatments in ________, she experienced respiratory arrest followed by cardiac arrest in August ________.

She contended that the HMO should have withheld the three treatments when she complained to allergy department nurses that she was having breathing difficulty and not feeling well. She contended that she was unconscious for 15 minutes in the ambulance and, thereafter, was in a medically induced coma for a number of days. The plaintiff’s neuropsychologist diagnosed her with cognitive disorder and posttraumatic stress disorder. The plaintiff contended that she suffered brain damage due to anoxia and the resulting coma from the events. The plaintiff further contended that she had memory deficiencies, vision, speech and hearing problems and deficiencies with gross and fine motor skills.

The plaintiff contended that the codefendant allergist committed malpractice by engaging in the "remote practice of allergy" because he reordered the serum mixture without first examining and testing the plaintiff.

She contended that the failure to be examined by the allergists throughout her care amounted to "withheld care by the HMO." The plaintiff also contended until trial that the HMO’s individually formulated serum was toxic.

@TITLEHD = DEFENDANTS’ CONTENTIONS Defense counsel walked the expert through diagnosis and treatment and the expert agreed that the plaintiff was properly diagnosed with allergies and that the type of allergies were properly determined.

The plaintiff had contended until trial that the allergy serum that the HMO mixed on its premises was contaminated because it contained phenol, which she alleged is toxic. By court order, the plaintiff obtained a serum sample and the testing laboratory found that the sample contained phenol. The defendant disputed these findings by first noting that the testing laboratory was not experienced with allergen testing and second, that phenol is supposed to be in allergen serum because it is a preservative. The defendant additionally noted that the level of phenol in the tested sample was proper. The defendants introduced testimony from nurses in the HMO allergy department who stated that the plaintiff never complained she wasn’t feeling well on the occasions of her last three immunotherapy treatments.

The jury of six women concluded that the defendant did not depart from accepted medical practice. One juror dissented on the question of whether there was a departure for not examining the plaintiff.

This juror felt the codefendant second allergist should have examined the patient. The plaintiff demanded $________ dollars. Her husband claimed loss of consortium. During the trial the demand was reduced to $________. No offer was made.

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