MEDICAL MALPRACTICE

New York Law Journal

January 29, 2018 Monday

Copyright 2018 ALM Media Properties, LLC All Rights Reserved Further duplication without permission is prohibited

Section: VERDICTS & SETTLEMENTS; Pg. p.5, col.1; Vol. 259; No. 19

Body

Patient: Doctor's oversight led to near-total removal of intestine

Verdict $18,200,000

Mariana & Edward Zielinska v. Lutheran Medical Center, LMC Physicians Services, K.P.C., NES Medical Services of N.Y., P.C., Laura A. Spano, MD., Anup Chitnis, MD., Shakeel A. Usmani, MD., Henry Hom, MD., Corneliu T. Vulpr, MD., & Mahesh K. Krishnaiah, MD., No. 22686/10

Court: Kings Supreme

Plaintiffs' Attorney: Steven Miller, Miller, Montiel & Strano, Garden City

Defense Attorneys: Paul E. Walker (lead), of counsel, Dopf, New York, (Corneliu T. Vulpe); Robert S. Deutsch, Aaronson Rappaport Feinstein and Deutsch, New York, (Lutheran Medical Center, LMC Physicians Services, Shakeel A. Usmani); John C. Henninger, Geisler, Henninger & Fitzmaurice Mineola, (Mahesh K. Krishnaiah); Charles E. Kutner, Kutner Friedrich, New York, (Anup Chitnis, Laura A. Spano, NES Medical Services of New York); None reported (Henry Hom)

Facts & Allegations: On June 8, 2008, plaintiff Marianna Zielinska, 49, a homemaker, presented to Lutheran Medical Center, in Brooklyn. She was suffering pain that stemmed from her abdomen, and she was experiencing nausea. She underwent a CT scan and other diagnostic tests, and she was evaluated by Dr. Anup Chitnis, Dr. Laura Spano and Dr. Shakeel Usmani. The CT scan revealed edema of the small intestine. Zielinska was admitted to the hospital, and she was discharged during the ensuing day.

After five days had passed, Zielinska returned to the hospital. She reported that her pain had worsened, that her nausea persisted, and that she had been vomiting. She could not tolerate food.

Zielinska was admitted to the hospital, and her care was managed by an internist, Dr. Henry Hom, a gastroenterologist, Dr. Mahesh Krishnaiah, and a surgeon, Dr. Corneliu Vulpe. Zielinska's condition worsened, so she underwent another CT scan. The test revealed ascites: the peritoneal cavity's retention of fluid. The test also revealed thickening of the wall of the small intestine. The symptoms were deemed a product of gastritis and enteritis, which is an inflammatory condition of the intestines. Zielinska was discharged on June 21, 2008.

After a week had passed, Zielinska returned to the hospital. She reported that her symptoms had not subsided. Another CT scan revealed ischemic damage of the small intestine. The damage necessitated removal of most of the intestine. Zielinska claimed that Lutheran Medical Center's staff did not timely detect or treat a thrombosis that caused her ischemia. She contended that timely treatment could have prevented significant damage of her small intestine.

Zielinska sued Chitnis and Spano; their practice, NES Medical Services of New York, PC; Usmani; his practice, LMC Physicians Services, PC; Vulpe; Hom; Krishnaiah; and Lutheran Medical Center. The lawsuit alleged that the doctors and the hospital's staff failed to timely diagnose Zielinska's ischemia and/or its underlying cause, that the failures constituted malpractice, that NES Medical Services of New York was vicariously liable for the actions of Chitnis and Spano, that LMC Physicians Services was vicariously liable for Usmani's actions, and that Lutheran Medical Center was vicariously liable for the actions of its staff.

Hom was dismissed, and Zielinska's counsel discontinued the claims against Chitnis, Usmani, LMC Physicians Services and NES Medical Services of New York. The matter proceeded to a trial against Krishnaiah, Spano, Vulpe and Lutheran Medical Center. Krishnaiah was dismissed during the trial, and Spano and Lutheran Medical Center negotiated a settlement of the claims against them. The settlement's terms were not disclosed. The trial continued against Vulpe.

Zielinska's expert radiologist opined that Zielinska's first CT scan depicted portal vein thrombosis: obstruction of a vein that drains portions of the liver and the small intestine. The expert contended that the obstruction extended to the superior mesenteric vein, which drains a portion of the small intestine. Zielinska's counsel contended that the obstruction was the cause of Zielinska's pain and nausea, but that it was not detected by the hospital's staff.

Zielinska's counsel contended that Zielinska's second CT scan depicted portal vein thrombosis, ascites and thickening of the small intestine. He argued that those conditions suggested the onset of ischemia, but that Zielinska's symptoms were deemed a product of gastritis and enteritis. Zielinska's expert surgeon opined that Vulpe should have been able to correctly interpret the scan's results. The expert also contended that Zielinska's thrombosis and residual symptoms could have been resolved via timely administration of an anticoagulant. He contended that Vulpe departed from an accepted standard of medical care.

Vulpe claimed that he intended to perform tests that would have investigated Zielinska's small intestine, but that Zielinska was discharged before the tests could be performed. He claimed that Krishnaiah approved the discharge..

Injuries/Damages: In June 2008, Zielinska developed ischemia of her small intestine. On June 28, 2008, she underwent resection of a portion of the intestine. She subsequently developed sepsis.

During the ensuing eight months, Zielinska underwent more than 17 surgeries. The procedures included resection of another portion of her small intestine, debridement of necrotic tissue, a tracheostomy, and draining of her surgical wound, which was open throughout her hospitalization. She also underwent implantation of an ostomy appliance, which allowed collection of her fecal waste. Her hospitalization lasted until Feb. 26, 2009.

On April 13, 2009, Zielinska was admitted to another hospital. She underwent surgery that included resection of a portion of her small intestine, the removal of her ostomy appliance and the closure of her abdomen. She retains 10 percent of her small intestine. Her hospitalization lasted until May 5, 2009.

Zielinska's extensive surgeries led to her development of ventral hernias. In November 2010, she underwent surgery that was intended to repair a hernia. The procedure failed. Zielinska endured a hospitalization that lasted eight days.

In January 2012, Zielinska underwent another unsuccessful surgery that was intended to repair a hernia. In February 2013, she underwent reconstruction of her abdomen.

Zielinska suffers residual effects that include malnutrition, flatulence, an increased frequency of defecation, and damage of muscles of her abdomen. She claimed that the latter condition hinders her ambulation. She further claimed that she suffers residual depression. She retains scars of her abdomen.

Zielinska sought recovery of $1.2 million for past medical expenses, $9 million for past pain and suffering, and $9 million for future pain and suffering. Zielinska's husband, Edward Sapkowski, presented a derivative claim.

Result: The jury found that Vulpe departed from an accepted standard of medical care. It also determined that he, Spano and Krishnaiah shared liability for Zielinska's injury. Vulpe was assigned 50 percent of the liability; Spano was assigned 45 percent of the liability; and Krishnaiah was assigned 5 percent of the liability.

The jury determined that damages totaled $18.2 million. Vulpe was assigned 50 percent of the liability, so his obligation was $9.1 million. Additional money was recovered via the in-trial settlement with Spano and Lutheran Medical Center.