Lubell & Rosen defend physicians from medical malpractice claims
Case: Estate of Eliza Miller v. Dwight Dawkins MD
Case no: 12-CA-004854
Description: Medical malpractice
Filing date: Dec. 20, 2012
Trial dates: Oct. 9-15, 2013
Judge: St. Lucie Circuit Judge Dwight Geiger
Plaintiff attorneys: J. Scott Gunn, J. Scott Gunn P.A., Fort Lauderdale
Defense attorney: Steven Lubell and Julia Ingle, Lubell & Rosen, Fort Lauderdale
Jury award: For the defense
Details: On the morning of Oct. 14, 2011, Eliza Miller, 67, fainted at home. She had no prior symptoms and no explanation for the fainting spell. She called 911 and was taken to the emergency room at Lawnwood Regional Medical Center & Heart Institute in Fort Pierce.
She was initially seen by the ER doctor and soon after by her family physician, Dr. Dwight Dawkins. Over the course of the day's diagnostic work, Miller also was seen by a cardiologist and a neurologist.
The physicians proceeded on the presumption that the most likely cause was a mild heart attack. She was given a dose of the blood thinner Lovenox at 10:05 p.m. She went into cardiopulmonary arrest at 11 p.m. and died at 12:05 a.m.
Plaintiffs case: Her widower brought suit against the ER doctor, the ER staffing group, cardiologist, primary care doctor and hospital, said David Baroff, Gunn's legal assistant. The plaintiff settled with the hospital, ER doctor and ER staffing group pretrial and dismissed the cardiologist as a defendant.
The autopsy revealed Miller died of a massive pulmonary embolism. She had a saddle embolism, which plugs both branches of the pulmonary artery. She also had showers of small emboli that the medical examiner suspected caused her to faint on the day she died.
Gunn alleged Dawkins should have suspected a pulmonary embolism as the cause of the fainting in his initial diagnosis.
The theory of the case was that all of the physicians were negligent in failing to consider the diagnosis of pulmonary embolism and failing to order a single test to rule it out. Many simple, inexpensive tests were available, Baroff said.
"Additionally, the primary care doctor was negligent for failing to know the hospital rules governing the administration of medications. As a result, although the doctor ordered Lovenox, which probably would have prevented the fatal embolism had the drug been given immediately upon admission, the patient didn't receive the drug until 10 p.m. because the doctor failed to write the order using the proper terminology that would have resulted in the patient receiving the medication immediately," he said.
Dr. David Korn, an Aventura cardiologist, was the plaintiffs expert witness on the embolism. His credibility was attacked by the defense, which told the jury that he testified for plaintiffs in 121 of 125 cases where he appeared as an expert.
When the case went to the jury, Gunn asked for $1.2 million in damages for pain and suffering plus funeral costs. There was no request for punitive damages.
The jury also heard from Miller's husband, daughter and pastor. A housewife married to a retired landscaper, Miller was active in her church and beloved in her community.
Defense case: Rather than consider an embolism, the doctors were concerned about heart failure. Miller suffered a heart attack five years earlier, and she was obese. Both Dawkins and the cardiologist had been monitoring her heart health for years.
Dr. Kevin Inwood, an internist in Jupiter, was the expert witness for Dawkins. He said normal indicators for a pulmonary embolism were not present. These include chest pain, shortness of breath and coughing up blood.
Ten minutes after the morning fainting episode, a paramedic tested for oxygen saturation. Miller scored 99 out of 100, a near perfect mark.
"If she was suffering a pulmonary embolism, you would think you would get a score below normal," Lubell said. "Four different specialists saw this patient. All four are very familiar with pulmonary embolism. They treat it, deal with it on a daily basis and none of the four doctors thought pulmonary embolism was even a possibility."
In fact, her tests kept leading the doctors to suspect heart trouble as she was releasing enzymes typically produced by a stressed heart, Lubell said.
Outcome: The jury deliberated for 45 minutes before finding no liability.
Comments: "We're still not sure the pulmonary embolism caused the fainting, only that it caused the death," Lubell said.
Post-settlement: The defense offered a pretrial settlement proposal that was rejected. On that basis, the defense has a motion pending for attorney fees and costs. The plaintiff's deadline to file an appeal has expired. "They're not going to appeal," Lubell said.