Jury Awards $175,000 in Medical Malpractice Case.

Jury Awards $175,000 in Medical Malpractice Case
The Legal Intelligencer
June 13, 2001.

by Nikki R. Cyter

After seven days of trial and one day of deliberations, a Montgomery County jury found in favor of the plaintiff, June Miller, and awarded $175,000 for medical malpractice.

In 1992, at the age of 59, Miller found herself experiencing pain in both shoulders. She presented her case to Dr. Elliot Menkowitz, an orthopedic specialist, who she now alleges failed to diagnose her medical problems in a sufficient amount of time.

The plaintiff's attorney, Brian Hall, said that Miller worked as a data entry clerk for a local doctor, where she spent much of her day in front of a computer with her arms elevated and unsupported. Nine months prior to her decision to seek medical help, Miller experienced discomfort in her shoulders, but worked through it. When her pain escalated in July 1992, she went to Menkowitz, who treated her with injections of the steroid cortisone.

Though these treatments initially afforded her relief, Miler claimed she was in excruciating pain and was admitted to Pottstown Memorial Hospital two and a half weeks later. Hall stated that initial blood studies revealed elevated white blood cell counts and sedimentation rates, and that a left shift on the differential indicated there had possibly been recent inflammation. The plaintiff claimed these results were consistent with infection and required a doctor to rule out infection as a possible cause of Miller's shoulder problems, which Menkowitz allegedly did not do.

Menkowitz did manipulation treatments to relieve a condition he seemingly thought plagued Miller: frozen shoulder, in which the shoulders will not move. When a culture was done on Miller's shoulders in September, four weeks after her Aug. 15 admittance to the hospital, it revealed bacteria. An infectious disease specialist, according to Hall, discovered infection in Miller's shoulders as well as in her spinal column and left hip. Miller was transferred to Temple Hospital, where she was treated with antibiotics for eight weeks.

The plaintiff's theory, according to Hall, was that, "given presentation to the hospital, infection should have been number one on the differential diagnosis, and should have been ruled out. This was not done."

The plaintiff's experts contended that Miller had an infection in her shoulders at the time of her admittance to the hospital and that tests should have been done within two to three days of her admittance to rule out this possibility. The plaintiff also claims that the failure to diagnose infection resulted in a four- to five-week delay of treatment.

Questions of causation and liability were the basis of the defense argument against these allegations. The defense held that Miller had longstanding shoulder complaints prior to her admittance to the hospital and that CAT scans were diagnosed as showing rotator cuff tears. In addition, Menkowitz said that during manipulation he checked for fluid in the shoulders, which would indicate infection. He claims to have found no fluid in the shoulder. The plaintiff attorney stated that the lack of fluid in the shoulder was not noted in the charts, and said that he believed this missing information in the records was crucial to the case.

Miller claimed she is unable to work due to her injuries, which prevent her from moving her arms above chest level. Though the verdict was in the plaintiff's favor, attorney Hall said that the jury's award seemed to convey their belief that Miller's work status could have been due to shoulder problems she had prior to her hospital visit. Delay damages have been calculated at $103,000 and a petition has been filed.

Montgomery County Common Pleas Judge Emmanuel Bertin presided. No pretrial offers were made, Hall said.