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Tort/Negligence – Medical Malpractice – Expert Testimony – ER Visits – Crohn’s Disease

With regard to plaintiff’s September 2013 visit to an emergency room, her expert’s theory of the ER doctor’s liability boils down to the fact that – by not admitting plaintiff to the hospital – the ER doctor left plaintiff in the hands of the defendant-gastroenterologist, who allegedly diagnosed Crohn’s disease but failed to inform plaintiff or her primary physician. No expert has opined that the ER doctor deviated from the standard of care by referring plaintiff to the defendant-gastroenterologist, whom she had already seen. The court excludes the expert’s speculative opinion, which is the only expert opinion regarding the ER doctor’s liability arising from the September 2013 ER visit.

The court grants the moving defendants’ motions to exclude and for summary judgment as to plaintiff’s September 2013 ER visit. The court denies those motions as to plaintiff’s April 2014 ER visit.

When plaintiff returned to the ER in April 2014, the ER doctor not only had access to but in fact reviewed records from her September visit. Thus, he was aware, or at least on notice, of a likelihood that plaintiff had Crohn’s disease.

Plaintiff’s expert, Dr. Fred Mushkat, opined the standard of care, given plaintiff’s history and complaints, required the ER doctor to do the following: (1) inquire further to ensure a Crohn’s disease diagnosis had either been ruled out or plaintiff was receiving treatment for that condition; (2) review the results and recommendation from an April 4, 2014, ultrasound; and (3) at least call the defendant-gastroenterologist to ask about admitting plaintiff for further evaluation. Dr. Mushkat opines the ER doctor did not do any of these, instead treating plaintiff only for a urinary tract infection, leaving certain tests open, and giving less than clear instructions to follow up with her primary care provider and the defendant-gastroenterologist.

Unlike the September 2013 visit, there is no record of written discharge instructions alerting plaintiff to the need to see the gastroenterologist. Neither does it appear she, in fact, saw the gastroenterologist within a short period after the April visit. Instead, within a few weeks she presented with serious complications from her Crohn’s disease including an intestinal blockage, multiple fistulae, and resulting sepsis.

Under these circumstances, the court finds Dr. Mushkat’s causation opinion admissible, at least as it relates to the ER doctor’s alleged failure to inquire further, or at least call the gastroenterologist, which likely would have led him to discover plaintiff had not been informed of her Crohn’s diagnosis (or had that condition ruled out) and was not receiving treatment for that condition.

There is enough to support the premise the ER doctor was, at that point, obligated to take some further action to close this gap in plaintiff’s care. This, in turn, likely would have avoided further deterioration leading to her ultimate injuries.

Thus, Dr. Mushkat’s opinions are sufficient to support a finding of causation between one or more alleged negligent acts (failure to inquire further of plaintiff, her family, or the gastroenterologist and failure to provide clear instructions for follow up with the gastroenterologist) and plaintiff’s subsequent injuries, particularly given the close temporal connection between the April visit and plaintiff’s May 4, 2014, hospitalization for complications resulting from her Crohn’s disease.

Motion granted in part, denied in part.

Knox v. United States (Lawyers Weekly No. 002-138-18, 19 pp.) (Cameron McGowan Currie, S.J.) 0:17-cv-00036; Ashley White Creech, Chad McGowan, Eve Schafer Goodstein and Jordan Christopher Calloway for plaintiff; Christie Newman, Marshall Prince, Todd Russell Flippin, William Benson Darwin Jr., Scott Sterling Addison, Kevin Lee Pratt, Tricia Morvan Derr, E. Douglas Pratt-Thomas, Steven Todd Moon, H. Spencer King III and Matthew Holmes Henrikson. D.S.C.


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