Managing and Appellate Partner, Michael N. Romano, secured summary judgment on behalf of MCB’s client, an Internist, in a wrongful death case alleging a failure to timely diagnose herpes encephalitis.
The decedent, a 77-year-old male, presented to MCB’s client, his primary care physician, on September 10,2019. The plaintiff, his wife, who accompanied him to the visit, reported that her husband was “not right”. The decedent, who was lucid and able to provide a medical history, reported fever and loss of appetite. On examination, he had a temperature of 103 degrees and rales and crackles in his lungs. MCB’s client felt the decedent had pneumonia and recommended he go to the hospital’s emergency department immediately. This recommendation was refused. Due to this refusal, our client did what he could, which was to prescribe Augmentin and Tamiflu, recommend Tylenol to reduce the fever, and recommend close follow up.
The records show, and our client testified, he was concerned that the decedent refused to go to the hospital and placed multiple phone calls to the plaintiff after the September10th office visit to check on her husband’s condition during which he adamantly urged the plaintiff to take her husband to the hospital.
The next day, September 11,the decedent was finally taken by ambulance to the hospital for altered mental status and fever. Shortly after arriving, he had a seizure followed by acute hypoxic respiratory failure. The physicians at the hospital suspected meningitis. A lumbar puncture was performed on September 12,yielding the diagnosis of herpes encephalitis. The decedent was discharged to hospice care, where he passed away several weeks later.
In support of summary judgment, the affirmation of an expert in Internal Medicine was submitted, who opined, to a reasonable degree of medical certainty:
● Our client’s diagnosis of pneumonia based upon the decedent’s presenting signs and symptoms on September 10, 2019 was appropriate and not a deviation from the standard of care
● The decedent did not present with or report any symptoms of herpes encephalitis on September 10, 2019, which are focal neurological deficits, such as changes in motor or sensory function, vision, coordination and balance and severe headache, neck stiffness, sensitivity to light, trouble thinking clearly, visual and auditory hallucinations, unusual behavior, seizures and unconsciousness
● Our client did not abandon the decedent and, to the contrary, out of concern for the his well-being due to the fact that he refused hospital treatment, contacted the decedent’s wife for updates on his condition, starting on the evening of September 10th, and instructed her to take her husband to the hospital in multiple phone conversations
● Had the decedent followed the multiple recommendations to go to the hospital the progression of his symptoms would have been monitored, specialty consultations would have been called in, and the appropriate blood and diagnostic tests would have been performed to diagnose his condition when his symptoms manifested.
● The sole reason herpes encephalitis was not timely diagnosed was due to the refusal to follow our client’s instructions to go to the hospital for treatment, and said refusal was the sole proximate cause of the decedent’s injuries and death.
In opposition, the plaintiff submitted the affirmations of two experts—an expert Board Certified in Internal Medicine and an expert Board Certified in Neurology, Vascular Neurology and Critical Care Medicine.
The plaintiff’s experts conceded that the diagnosis of herpes encephalitis is not a diagnosis made in an office setting, but in a hospital setting, where a battery of diagnostic tests could be performed. In this regard, the plaintiff’s experts agreed with our expert.
Mr. Romano exploited this concession in his reply affirmation, arguing that given same the sole claim in the case was the alleged failure to recommend the decedent go to the hospital. The sole basis for this allegation was the self-serving testimony of the plaintiff in which she claimed MCB’s client never instructed her husband to go to the hospital. It was argued this testimony was not only contradicted by the documentary evidence, but by plaintiff’s self-contradictory deposition testimony, where she confirmed our client recommended her husband go to the emergency department, but he refused.
It was asserted plaintiff’s testimony had no evidentiary value as a matter of law since it was wholly unsupported by the documentary evidence and the testimonies of the parties, including her very own testimony. While there is a line of cases holding that divergent testimonies create an issue of fact, the Court was directed to an alternative line of cases holding "[t]hat testimony which is incredible and unbelievable, that is impossible of belief because it is manifestly untrue, physically impossible, contrary to experience, or self-contradictory, is to be disregarded as being without evidentiary value”. We argued that this line of cases applied to plaintiff’s testimony.
The Court agreed and held the plaintiff’s testimony, as well as her experts’ affirmations in opposition, which relied solely on her testimony to support their opinions, was insufficient to defeat summary judgment. The case was dismissed.