© 2009 The Medical-Legal News
• The Gist: This case looks to have been a potential winner for the plaintiff, yet emphasizes the importance of having a suitable expert witness who can bridge the causal nexus.
Establishing causation can be tough, but it also may appear a simple enough task that attorneys and consultants overlook the need for proper expert witnesses. Did this happen in a recent New York case?
In Zak v. Brookhaven Memorial, 54 A.D.3d 852 (2008), the executor of a deceased woman brought a medical malpractice suit against a hospital. Anna D. Awe, the decedent, had been admitted to the hospital complaining of abdominal pain and was treated for gastrointestinal bleeding.
Awe stayed in the hospital for about a month and eventually was given heparin, a blood-thinning drug, without a physician’s order. More bleeding occurred as a result. Awe’s health declined and she eventually died in the hospital.
The executor asked for summary judgment at the trial court level and won, but an appeals court reversed.
The appeals court apparently disliked that the plaintiff had tried to establish causation with only the affidavit of a registered nurse, deposition testimony and hospital records.
While from the case’s description of the care Awe received it may appear that the heparin caused Awe’s death, the appeals court was not impressed with the causation tactics used.
The court said: “Although the registered nurse was qualified to establish that the allegedly negligent administration of heparin without a physician’s order was a departure from acceptable standards of good nursing care, she was not qualified to opine that said departure was a substantial factor in causing any injury separate and apart from the decedent’s underlying condition.”
The court also said: “The plaintiff’s other submissions, including hospital records and deposition testimony, were also insufficient to establish a causal link between the hospital’s alleged breach of duty and the decedent’s… eventual death.”