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NJ Medical Malpractice – Delayed Treatment led to Brain Damage


On November 15, 2001, plaintiff JS, 42, occupation not given, went to his primary care physician complaining of severe headaches, and was given painkillers. On November 16, he went to a Hospital in Hamilton, complaining of a headache for five days and being unsteady on his feet. Dr. C ordered a CT scan that showed a colloid cyst on his brain. A radiologist suggested an MRI, but Dr. C said JS had a tension headaches. He prescribed pain medication and sent him home.

JS returned on November 17, complaining of a worsening headache and an inability to move his right leg. Neurologist Dr. V concluded that JS was suffering from a conversion disorder (a form of psychotic episode). After reporting these findings the Dr. C, Dr. V recommended that JS be discharged with instructions to have an MRI as an outpatient. Dr. C consulted on the phone with Dr. G, a family medicine practitioner who had seen JS on occasions, and told him that he was being discharged.

On November 18, JS returned to the same emergency room complaining of headaches and now reported that he had fallen 15 to 20 separate times since being sent home the previous day. JS was seen by another specialist who noted tremors. He was admitted to the hospital. Dr. O worked in the emergency room and was on duty when JS was admitted. Dr. W was on call on November 17 and 18. A November 19 MRI exam showed an aneurysm in the area of the previously discovered cyst. The doctors took no action until November 20, when he underwent a cerebral angiogram that revealed a large aneurysm and subarachnoid hemorrhage. He was then transferred to a Hospital at New Brunswick and underwent surgery. He sustained brain damage.

JS sued Dr. C, Dr. V, Dr. W, Dr. O, Dr. G and the Hospital for medical malpractice. He alleged that Dr. C and Dr. V failed to properly diagnose his condition and that Dr. W failed to respond on November 17 and 18. He alleged that Dr. G failed to realize that Dr. C’s indicated intention of not admitting the plaintiff was wrong. He alleged that Dr. O should have been more proactive and he should have required faster testing and treatment immediately subsequent to the plaintiff’s hospitalization.

Dr. V and Dr. W settled during trial. Dr. G was granted a voluntary dismissal during trial immediately following his testimony. The hospital was dismissed from the case by the trial judge during the trial.

The remaining doctors denied that they were negligent in their failure to make a more timely diagnosis and contended that JS’s preexisting condition – the aneurysm he presented with – was the cause of his injury.

JS sustained brain damage from the subarachnoid hemorrhaging. He can only communicate through head nods and hand gestures, and cannot eat or breathe on his own. He now lives in a long-term care facility with 24-hour supervision.

The jury found that Dr. O was not negligent and that the negligence of the remaining defendants proximately caused the plaintiff’s injuries. It apportioned 42.56% negligence to Dr. V, 33.88% to Dr. C and 17.88% to Dr. W. The jury also found the plaintiff’s preexisting condition 5.68% responsible for the injury. The jury awarded $25 million. During jury deliberation, the attorneys stipulated to $513,273.38 in past medical expenses if the jury returned a plaintiff’s verdict. Therefore the plaintiff netted $25,513,273.38. However, the portion of the verdict attributed to the plaintiff’s preexisting reduced the award by $1,45 million. The award was further reduced by $16,890,000 on account of the portion of the liability attributed to the settling defendants, so the plaintiff netted $7,173,273.38.

Trial length-15 days. Trial deliberation-2 days.

Plaintiff’s experts: Joseph Carfi, M.D., life care planning, Great Neck, NY; Richard Lechtenberg, M.D., neurology, Glen Cove, NY; Diane M. Sixsmith, M.D., emergency medicine, Flushing, NY

Attorneys for Plaintiffs: Charles A. Cerussi of Cerussi & Gunn, P.C., Shrewsbury, NJ and James F. Wilkens, Duffy, Duffy & Burdo, Uniondale, NY