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QUESTION: My husband went to the ER on November 24 of last year with a persistent cough and hardness in his abdomen. There were no prior medical history questions asked nor family history. They did a chest x-ray then told us it was "pre-copd". Dr. was going to order blood work to rule out "atypical pneumonia" then changed his mind but ordered a round of anti-biotic "just in case". After he had left the room we realized he had not addressed the abdomen issue so I opened the door to our exam room to find him. He was sitting in the hall, feet propped on a table, eating pizza and laughing/cutting up with the nurses (said only to demonstrate that it was slow, no need for hurrying etc) I asked if the pre-copd would explain the hardness in the abdomen. He came back to the room, asked my husband to lie back and felt around the abdomen a bit. He looked at me, laughed and said "Those are his abs." and left.
The antibiotic, predictably did nothing, and the cough and rigidity continued. Unable to see our pcp for several weeks we made an appointment with his nurse practitioner for Dec. 4. She listened to the symptoms, listened to him breathe etc. he had several coughing attacks while she was in with us. She said since the ER had done a chest x-ray there was no need for another. She said COPD and prescribed Spiriva inhaler and Nasonex (both of which we have since learned are very hard on the heart). By evening on Dec. 7th - cough no better - my husband had developed  swelling in his feet, ankles and groin to go with what we have since learned was swelling in his abdomen all along. I called the after hours number and spoke to a nurse. She advised if the swelling got worse suddenly to go to the ER and otherwise follow up with pcp or np on Monday. After several calls to the pcp office a nurse finally returned my call. I was told that it was urgent for them to see my husband but that the pcp was unavailable for appointments until after the holidays and that the NP would be in the urgent care clinic for at least 2 weeks. I asked how we were supposed to have him seen in this case. She told me to go to clinic. I explained that we had no insurance and could not afford the urgent care cost (we are able to make payments for office visits). I begged for help on what to do and she kept telling me to go to clinic.
On January 11 we went to a different ER my husband was admitted and spent the better part of 6 days in the hospital being diagnosed with congestive heart failure. After several tests and procedures we were told that his heart was extremely weak with an ejection fraction of only  10 - 20% and that he may be faced with a heart transplant. It was mentioned that the heart weakness could very well have been caused by the length of time that the chf went undiagnosed/treated. He wears an external defibrillator now in case his heart goes into a life-threatening rhythm due to its extreme weakness.
Is there a malpractice case in this from the misdiagnoses and lack of treatment on the part of the first ER and/or the NP? Thank you so much, in advance, for taking the time to read my case.

ANSWER: I would have like to have known how old your husband is.  If he is elderly, say 80+, whether there was malpractice or not, a lawyer will not be found to take the case. Cruel I know but malpractice cases are very costly to the attorney in terms of time and money and unless the damages are well into the 6 figures, it just isn't worth it to anyone.  The damages for the loss of the life of an elderly person is of course worth less than a younger person.  Again, I think this stinks but that's the way juries work.

Obviously your husband lacked good access to care and the care that was received was no doubt less than optimal.  In fact, it was lousey.  If he had gone home and had a fatal heart attack soon thereafter it would have been a strong case, in terms of liability because if it happened soon after being seen in the ER or the clinic there would certainly have been signs of an impending heart attack.  Of course, the defense in such a case would have been that even if they saw it coming hours or even some days in advance, he couldn't have been saved.  That is what their expert would say even though your expert.........at great expense to your attorney would testify that indeed he could have been saved and could have been returned to a life with some quality to it.

Fortunately, he has survived.  So the big issue is:  did the delay of about 7 weeks from first symptoms to January when he received proper treatment cause him serious and irreversible injury or harm or in this case heart damage?  Maybe yes, maybe  no but you don't say he had a heart attack, just CHF that may have worsened, but the nature of CHF is that it will worsen whatever is done.  Most of us will die from it eventually.  So, since he has survived and didn't suffer a critical episode that occured soon after the ER visit so that we could say the ER care was negligent, now some months later if he were to expire it would be virtually impossible to make a case against the ER, even though the care was negligent and malpractice.  If he had received care like the President of the US at the ER, that ER couldn't do anything to reverse the CHF.  They could just extend his life.  Your husband has continued on living so again, it goes back to damages.  No excusing the ER malpractice, just saying as a practical matter the case is not viable.  Good luck.

---------- FOLLOW-UP ----------

QUESTION: Two weeks prior to the first ER visit my husband turned 57. My biggest issue in this is that the original misdiagnosis and resulting lack of treatment may result in him having to have a heart transplant. Something that, to the best of my understanding, could have been prevented with prompt attention. Does this make a difference at all?

Answer
Sam: Thanks for the nice words. I will give you the best answer I have but again, I am a lawyer, not a doctor.  First question is, what kind of treatment could he have received when first at the ER that would have prevented progression of the CHF? Seems like a cardiologist would have done an echocardiogram or maybe even an angiogram but to rule out valve disease (echo would have shown that) or coronary artery disease (angio would have shown that) but even now you have a diagnosis for either.  He didn't go into cardiac arrest or have an infarction (heart attack) so not being a cardiologist, I don't know what more they might have done.  There is no treatment to reverse CHF to my knowledge. If problem was lack of oxygen it would have more affected his brain than his heart. But I am just guessing.  Certainly he is very young to have a serious problem like this.  CHF and possible need for a transplant indicates to me that the heart muscle is weakening. Why? Probably that cannot be known and as I say, I have not heard of a way to reverse it.  Remember I used the word "guessing"?  Well, a malpractice case in a case like this would probably require an attorney to be ready to incur costs of $20,000 more or less and hundreds of hours of work..........and for what?   A no better than 50/50 chance of getting his money back, let alone his hundreds of hours and a fee to make it worth while.  I guarantee you, whatever happens, experts in such a case on the other side would say that whether or not he received a proper level of care, nothing was going to reverse his CHF and nothing they did or did not do made it worse.  Whether that is true or not, I don't know. Only a cardiologist could answer the question. But since it could never be a black or white question, the case is never going to be strong enough, whatever happens, in my opinion.........again, not based on any medical expertise, just legal experience.  He is young and with proper meds he might do fine. So idiot suggesting he might need a transplant was really out of line. Sure, anyone with a weak heart might be a candidate but that doesn't mean it will get that bad. Again, good luck.

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Glenn A. Dorfman

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Thirty-four years experience in personal injury, medical malpractice and medical product liability law. Qualified to answer all questions regarding injuries and the law, except for worker`s compensation. Also wide experience in medical product defect cases ie current litigation regarding the Johnson&Johnson (DePuy)defective hip implant cases and Mirena IUD issues

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Thirty-four years experience handling cases involving auto accidents, trips and fall, fires, dog bite,medical malpractice and defective medical product cases with particular emphasis in 2012 and beyond with the DePuy ASR (Johnson&Johnson) defective hip implant cases. Twenty-five years of experience with defective IUD issues as well

Education/Credentials
Jurisdoctor Degree 1976 and Member in good standing with CA State Bar Assoc. since 1976

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