He was 67 years old.
I didn't know the man who died but I did know his son. His son was a computer whiz who was in my office fixing my computer. Over the course of small talk while the son was setting up to identify what was wrong with my computer I asked him a simple innocuous question. “How are things going for you and your family?”
The answer to that question led me to realize that all was not well.
He told me that his dad had recently died and the family was very confused about his cause of death.
I asked "What was the cause of death?"
His answer, “He died of a massive saddle embolus.”
“What's the problem?” I inquired.
“Dad was on blood thinner medication before his surgery. The blood thinner medication was specifically designed to prevent this type of blood clot. We don't understand what happened and his doctor doesn't give us a good explanation about why he died.”
This simple computer repair and this innocent conversation led to the realization that there was likely a valid medical malpractice, wrongful death case here in New York.
After the computer whiz had quickly dispatched my computer gremlin problem, I had a detailed conversation with him explaining how wrongful death lawsuits work in the state of NY.
In his brief description to me of what occurred and his concern about his dad's cause of death, that raised a red flag to me suggesting that a doctor or hospital might have violated the basic standards of good and acceptable medical care leading to his dad's untimely death.
However, I was at a disadvantage. I did not have any of the medical records to review. I also did not have an opportunity to have a medical expert review his medical records. Without those two critical things, I could not have an intelligent discussion with this computer whiz.
I then gave him a plan of action. I told him “Let's get your dad's medical records and have a medical expert review it in order to determine whether his treatment was appropriate or whether this was some unexplained event.”
He readily agreed.
The first thing I had to do was have one of the family members appointed as the legal representative of his dad's estate. You see, when someone dies in New York without a will, we have to get legal permission from the Surrogate's court to have one of the family members named as the person responsible for evaluating, investigating and proceeding forward with a possible case.
This is actually a simple and straightforward process that literally involves filling out many forms. When family members are told that one person is to be chosen and named as the legal representative, that raises concerns with some family members who believe that if we are successful in a lawsuit, that the person who is named as the legal representative will get a greater share of the money compared to the other family members.
This is simply not true.
This simply gives us the legal authority to go ahead and request the necessary medical records from the doctors and hospitals where this gentleman was seen. If we are ultimately successful in obtaining compensation for the family, the Surrogate's Court is the one who actually makes the decision about how the money is to be distributed to family members.
You should know that whenever children are involved as well as adults who are entitled to receive money from a settlement or verdict, there are specific formulas that the court uses in order to fairly apportion the money to those who most need it and to those who will most likely need it into the future. Having said that, if all of the surviving family members are adults and everyone agrees, typically the money will be shared equally among all the surviving adults.
Once we had a family member designated as the contact person for investigating this matter I then sent out request letters to different doctors and hospitals for this patient's medical records.
What follows is that a secretary for the medical records department for the hospitals and doctors offices locate the patient's records, count the pages and then send us a request for payment for copying costs.
We then send them a check for the copying costs and shortly afterward we receive the patient's medical records.
You will notice that most really good trial attorneys will go through each and every page of the patient's medical records when they first come into the office.
There's a key reason for doing this. Once I accumulate all of the patient's medical records, I will need to send them out to a qualified medical expert for analysis. It is critical that I have a full understanding of all the details contained in the patient's medical records when discussing this matter with my expert.
I know many law firms who simply ignore this step and rely on their secretary or paralegal to simply forward on the medical records to an available expert for review. The problem with that method is that the attorney who speaks to the medical expert is at a significant disadvantage. If the medical expert makes suggestions or has questions about treatment the patient received, the attorney he is talking to will have no clue how to address those issues since he will have never read the medical records in the first place.
Once I've completed reviewing all the records, I now can talk intelligently with my expert and ask critical questions about his conclusions and alternative theories that we may be able to allege.
I explained to the computer whiz that New York law required that a medical expert confirm that there was wrongdoing, that the wrongdoing caused injury and that the injury was significant or permanent. Only after we obtained confirmation from medical expert would we be able to go ahead and file a lawsuit against the offending doctors or hospitals.
After obtaining all the medical records and sending them out to a medical expert for review, my expert confirmed that we had a valid basis for a lawsuit.
This gentleman was scheduled to have urological surgery. His surgeon was a top notch doctor, board-certified and well respected in New York City. He came highly recommended. The patient had been on blood thinners in the past in order to prevent blood clots and the development of a stroke.
In anticipation of his surgery, the urology surgeon ordered that the patient stop his blood thinner medication shortly before the surgery. This makes good common sense because if the surgery is done while the patient remains on blood thinners, his blood will not coagulate and he can literally bleed to death.
The doctor's decision to take him off that prior to surgery was perfectly appropriate.
The doctor had written orders in the patient's chart that his medication was to be stopped a few days prior to surgery. Then, after surgery was finished he should then be restarted on the blood thinner medication. The doctor dutifully wrote these orders in the patient's hospital record.
The surgery, according to the urology surgeon, went beautifully. There were no complications. The patient had been properly taken off the blood thinner medication exactly 2 days prior to his surgery. He was asked to come in to hospital two days before in order to tune him up and get him ready for surgery. There were no problems or complications leading up to the surgery.
No one could explain why.
The patient was expected to do well postoperatively and was in fact doing well up, until he was found dead in his bed.
The family could not understand how he could have died. They wanted answers. They were not getting any type of satisfactory answers from any of the medical personnel who had attended to him while in the hospital. Not a single doctor or hospital staff gave the family a straight answer about why he died.
For those who are unfamiliar with what an autopsy is, it is a clinical examination of a person who has died. A specialist known as a pathologist does a detailed and thorough inspection of the patient's body after they have died to try and determine what was the cause of death.
I always tell surviving families that performing an autopsy can be a double-edged sword. It might tell you exactly why your loved one died, but it might not be the answer you were looking for. The cause of death might be attributable to something you did not expect. On the other hand, it might be as a direct result of improper medical care.
The family wanted to have an autopsy because they didn't know. This was the only way they were going to learn why he died.
As I mentioned at the beginning of this article, the cause of death listed on the autopsy report was a massive saddle embolus. That means this patient developed a massive clot in his lungs that killed him.
The family then asked, "How is it possible he could have developed this massive blood clot if he was on blood thinners before the surgery and after the surgery?"
A careful review of the medical records indicated that this patient was never put back onto his blood thinner medication following his surgery.
Even though his surgeon had ordered that the patient be returned to his medication within hours after the surgery, the nurses and the doctors in training simply forgot about that order and the patient never received his blood thinner medication as he was supposed to receive.
As a result of this departure from good and accepted medical care, this patient developed a massive blood clot that became lodged in his lung causing his death. My expert confirmed that if this patient had been placed back on his blood thinner medication as previously ordered, within hours of having his surgery, he never would have developed this massive blood clot that led to his death. Instead, he'd still be alive today.
Now, you may be thinking, how could this medical expert know with 100% certainty that this would occur?
That's a great question.
The law in NY does not require a medical expert to answer that question with 100% certainty. Instead, our medical expert only needs to show with a reasonable degree of medical probability, that this would have occurred. As with so many things in life, there is often no way to guarantee anything with 100% certainty. The law allows a qualified medical expert to testify that we are more likely right than wrong that if this patient had been given his blood thinner medication within hours after surgery, in all probability and with a reasonable degree of medical probability, this patient never would have developed this massive blood clot that killed him.
To learn more, I encourage you to watch the video below.
As always, if you have legal questions, and your matter happened here in the state of New York, I encourage you to call me at 516-487-8207 or by e-mail at [email protected] I can answer your legal questions and this is something I do every single day. I look forward to talking with you.