Managing and Appellate Partner, Michael N. Romano, obtained an affirmance of the lower court's grant of summary judgment to MCB's client, an emergency department physician.
The claim in the case was a failure to timely diagnose a stroke and administer Tissue Plasminogen Activator (tPA), a thrombolytic drug that breaks up blood clots and is used to treat acute ischemic stroke, which is a stroke due to a blockage causing lack of inflow of arterial blood to the brain, as opposed to a hemorrhagic stroke, which is due to bleeding. The standard of care is that tPA be administered within 4 1/2 hours of the first onset of symptoms of stroke. Administration of tPA outside this window in not correlated with improved prognosis and can result in severe complications. The administration of tPA is also contraindicated when stroke symptoms are mild.
In the lower court it was successfully argued the client appropriately assessed plaintiff's stroke symptoms as commencing outside the window for safe administration of tPA and that his symptoms were so mild -- he scored a mere 2 out of 42 on a National Institutes of Health Stroke Scale Assessment -- that the administration of tPA was, nonetheless, contraindicated. Based on the client's assessment the on-call neurologist decided not to order the administration of tPA. Plaintiff appealed.
On appeal, plaintiff argued our client improperly assessed his symptoms in that he asserted, for the first time on appeal, his stroke symptoms started 12 hours later than he originally claimed, at 6 p.m. rather than 6 a.m. To counter this argument, we successfully used the record -- the hospital chart, plaintiff's deposition testimony and plaintiff's expert's affirmation -- to prove plaintiff's symptoms commenced early that morning, rather than that evening immediately before he presented to the emergency department. We further asserted plaintiff's expert failed to refute our expert's opinion tPA was contraindicated due to the mild nature of plaintiff's stroke symptoms.
The Second Department, in its decision, accepted our arguments in total, holding plaintiff's position was "speculative and unsupported by the record".