$2 Million - $2 Mil. Wrongful Death Verdict

A Philadelphia jury has found a physician who failed to call an emergency room patient after learning about a discrepancy between her radiographs and diagnosis 75 percent liable for the woman's subsequent death. Last week, the decedent's estate in Kendrick v. Chestnut Hill Hospital was awarded $2 million in the wrongful death and survival action before Judge Arthur S. Kafrissen.

Beatrice M. Thompson entered Chestnut Hill's emergency room on May 8, 1999, complaining of stomach pains, nausea and vomiting after eating what she thought was bad fish, said Stewart J. Eisenberg of Eisenberg, Rothweiler, Winkler, Eisenberg & Jeck, P.C., who represented Thompson's daughter as administratrix. Thompson died for days later of a necrotic bowel, a condition in which the bowel's cells die.

"Beatrice Thompson was 42 years old at the time defendants failed to notify her of her abdominal mass and advise that she seek medical care immediately," the plaintiff's pretrial memorandum states.

"During the ... period after the discharge from the Chestnut Hill Hospital Emergency Room and until her death, Thompson was in considerable pain, pain which she thought was due to the effects of food poisoning but actually was from her dying bowel.

According to court documents, Thompson underwent blood and radiographic testing before being diagnosed with acute gastritis. The doctor who examined Thompson gave her medication and sent her home with instructions to seek medical assistance if her symptoms did not improve in 12 to 16 hours, Eisenberg said.

Because the decedent entered the emergency room on a Saturday night, there were no radiologists present to review her X-rays, Eisenberg explained. However, he said, the radiologists on duty the following morning reviewed the previous night's films to look for discrepancies between their own findings and those of the treating physicians.

In Thompson's case, the radiologist who read her X-rays on Sunday morning saw a possible mass or hernia on the left side of her lower abdomen, court documents state.

According to Eisenberg, defendant Dr. Joseph R. Lex Jr. was on duty in the emergency room that morning.

Upon receiving the radiologist's report, Eisenberg said, Lex examined Thompson's chart and determined there was no clinical significance to the X-ray finding because the treating physician had already noted a mass. "Lex assumed that this was just a insignificant finding and that all of Thompson's symptoms were consistent with gastritis since she had gotten better in the emergency room over the four hours that she was there the night before," the attorney said.

Thus, Lex did not call Thompson to advise her of the finding, the plaintiff's pretrial memorandum states. According to the memorandum, an autopsy revealed a benign mass in the decedent's lower abdomen that cut off blood supply to her bowel.

"In this report, plaintiff's emergency medicine expert concludes that Lex fell below the standard of care when he failed to notify Thompson of the mass or hernia and advise her to seek medical care immediately." The court documents state. "In his report, [plaintiff's surgical expert] concludes that, with proper surgical treatment for her developing bowel necrosis, Thompson would have lived."

Eisenberg said the defense asserted that Lex was not negligent, and that the decedent contributed to her own death by failing to return to the hospital as instructed.

Lex's pretrial memorandum indicates that Thompson's X-rays were read by a radiologist as non-specific bowel gas pattern and a questionable lower abdominal mass. "These findings, when taken in conjunction with [the treating physician's] diagnosis of acute gastritis, did not require Lex to contact the decedent follow-up," the memorandum states, citing the report of the defendant's surgical expert.

"Moreover," the memorandum continues, "despite receiving emergency room discharge instructions to seek medical assistance if she did not improve with 12-16 hours, the decedent did not seek medical treatment, notwithstanding continued gastric symptoms, until her death on May 12, 1999.

The jury apparently agreed, as Eisenberg said its member found Thompson 25 percent at fault for her own death.

Eisenberg said he thinks the jury was swayed in the plaintiff's favor - the vote came in at 10-2 - by the fact that the patient was never informed of the radiologist's finding. Eisenberg also speculated that the jury responded to a lack of communication between the treating physician, Lex and the radiologist.

Lex's attorney, George L. Young Jr. of Young & McGilvery, said the jury's verdict simply reflected a lack of analysis of the facts and sympathy to the plaintiff, who left behind a teen-age daughter. Young pointed to the fact that jury members returned $1 million each for the survival and the wrongful death theories as indicative of the jury's failure to fully weigh the facts.

"This now imposes a duty on a physician who never sees a patient," Young remarked. My... client never saw her and never examined her."

According to the plaintiff's attorney, settlement discussions did not lead to any formal offers. He expects to file for delay damages of approximately $100,000.

Chestnut Hill Hospital remained a defendant in the case based on ostensible agency, but the jury did not find Lex to be an agent of the hospital, Eisenberg said. The doctor's group practice, Chestnut Hill Emergency Associates, was deemed his employer and is thus responsible for the verdict. The full amount of the verdict is covered by the group's insurance, Eisenberg said.

When asked whether he plans to appeal, Young said settlement negotiations are pending.