medical symbolsI recently received a letter seeking my professional opinion on the merit of a malpractice case against a local hospital, the Corning Hospital, in Corning, NY.

Without intruding on the privacy of the letter writer, I do want to share some of the details and my reply, because I believe the reasoning behind my answer has implications in many malpractice cases.

Here is a brief summary of the letter asking for my opinion:

The letter writer was admitted to Corning Hospital with pneumonia. Although she complained of buttocks pain, the nurse said it was “probably” pressure from a urinary catheter and it would go away.

The next day, in ICU, the patient complained again of her buttocks hurting. Her sister, a nurse, was present and heard the Corning Hospital nurse tell the patient to stay off that area but otherwise offered no additional medical care.

The following day, the sister examined the area of concern and was horrified by what she saw– a very large, obviously infected wound with dead, black skin.

The sister insisted the patient be immediately seen by an infectious disease doctor– that is a specialist doctor who deals with infections. Initially, the sister was told that the Corning Hospital did not have an infectious disease doctor but when the sister told the Corning Hospital staff that she knew that New York State regulatons required every hospital to have an infectious disease doctor available for consultation, the staff said they would see what they could do…..

More time passed and the sister again had to continue to be insistent to get any response from the hospital staff. Eventually the patient was examined by an infectious disease doctor who immediately ordered that the patient be prepped for emergency surgery debridement [cleaning out] of the infected area.

Further surgical intervention, including a colostomy, was required and the patient was transferred to Rochester General Hospital, for further debridement of the area and a colostomy. She was diagnosed with necrotizing fasciitis which is commonly (and mistakenly) referred to as a “flesh eating” infection. In fact, this infection does not eat flesh but it IS a very dangerous and very fast-spreading infection that can kill a person if not promptly treated.

She concludes with asking for my opinion on a possible case: “I am writing to see if indeed there was medical neglect on the part of Corning Hospital. Early diagnosis and medical treatment are essential with necrotizing fasciitis. Time is of the essence with necrotizing faciitis and the wound was not treated nor monitored for a day after my nurse made a note of it… If indeed there is possible medical neglect on the part of Corning Hospital, I wish that you contact me so that the matter may be pursued.”

The letter writer’s story is a harrowing example of how quickly a medical situation can deteriorate without quick response from hospital staff. As bad as the situation became, however, this patient was lucky to have a family member acting as a staunch advocate. Below is my reply to the query about possible legal action:

I consulted a doctor whom I consult on all possible medical negligence actions. Long story short, he unfortunately tells me that he does NOT believe that you have a viable basis for pursuing a medical negligence action. To understand this conclusion, please let me provide a little legal background:

A successful medical malpractice action requires proof of three elements:

1. Liability – that a doctor departed from an accepted standard of medical care;

2. Causation – that the doctor’s departure from the standard of care was the cause of an injury; and

3. Damages – that due to the doctor’s departure from the standard of care which caused an injury, you have suffered substantial financial and non-financial damages.

The issue in your case is whether the one-day delay between noting the “red area” on your buttocks and the performance of the emergency debridement the next day constituted a departure from the accepted standard of medical care (Element #1 above)?

My medical consultant says that unfortunately a one-day delay under the circumstances of your case does not constitute a departure from the accepted standard of care. He points out that bed-ridden patients frequently have “red areas” on their buttocks but that does not mean that every patient with a red area is suffering from necrotizing fasciitis which is a very fast-moving infection — many times a red area may simply be a skin irritation or some other relatively minor problem.

Accordingly, the standard of care when a reddened area like that is observed is to monitor for changes in the reddened area over time. In your case, the reddened area changed very rapidly over the course of the next day but luckily your sister kept pushing the doctors to examine you and ultimately to intervene by performing the emergency debridement surgery…

My medical consultant is quick to add how fortunate you were to have your sister present who was a very aggressive advocate on your behalf. He feels that had she not been present, and aggressively advocating on your behalf, you very well may have died.

The ironic bottom line here is that while your sister may have saved your life she also probably saved the hospital from what would have been a big medical negligence action.

What I mean by this is that had your sister not been present, it is very likely that you would have been parked in a corner for day-after-day like any other patient with your condition progressing to a much more advanced degree that ultimately would have killed you. If that had occurred — with the nursing and medical staff ignoring or failing to properly treat a known problem — you would have had a good medical negligence claim, but sadly you would not be alive today.

I regret to be the bearer of bad news but I trust you appreciate the reasons for my declining your case. Of course, another attorney may feel differently about the merits of pursuing a claim and therefore I urge you to seek a second opinion. In any event, please understand that the New York time limit for pursuing a medical negligence claim is two and a half years from the date of the alleged malpractice.

I ended my reply by extending my wishes that this patient get in touch with me if she had any further questions or if I could be of assistance in the future. It is unfortunate that her health was jeopardized by a lag in treatment, but her case doesn’t meet the requirements for medical negligence.

Thanks for reading,
James B. Reed, Esq.
NY Malpractice Attorney
Ziff Law Firm, LLP
303 William St., Elmira, NY 14901
Tel: (607) 733-8866
Fax: (607) 732-6062
Toll Free: 1-800-943-3529