Tag: Law Suit

Former county EMS director files suit

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[dropcap]H[/dropcap]ardin County’s former EMS director has filed an anti-discrimination suit claiming he was wrongfully discharged from his job.

John Malcomson, a Radcliff resident, was suspended in June and discharged in July about one year after returning to work following a health emergency, which left him with a disability requiring some work-related restrictions.

In the four-page lawsuit filed last week in Hardin Circuit Court, Malcomson names Hardin Fiscal Court and Judge-Executive Harry Berry as defendants

Malcolmson asks the court for compensatory damages, reimbursement of legal fees and “any other relief to which he may otherwise be properly entitled.” No dollar figure is mentioned in the suit.

When the holiday weekend began Friday, defendants had not yet been served with the suit. Regardless, Berry said the county government would maintain its practice of declining comment on pending litigation.

During a public meeting in which Fiscal Court approved Malcomson’s firing, Berry said his recommendation stemmed from “misbehavior and inappropriate activity within the department.” Berry also said low morale and high turnover influenced his decision.

“Mr. Malcomson’s focus on the operations and business of the department is lacking. His availability is limited and unpredictable,” Berry said. “He routinely misses meetings, fails to meet expenses, demonstrates serious mood swings and is frequently disrespectful in his tone and demeanor toward his superiors and his subordinates.”

Malcolmson became emergency medical services director in August of 2014. As a result of an aortic dissection suffered in January 2014, he missed nearly 18 months of work. A complication required a partial left foot amputation and, according to the lawsuit, he was regarded as disabled by county government upon returning to work.

The lawsuit described a reprimand presented by Bryce Shumate, his supervisor, and Deputy Judge-Executive Jim Roberts following Malcolmson’s return to work. He was cited for failing to provide documentation of employee training. He claims in the suit the documentation had not been required during his initial two years of employment.

Malcomson, who missed work again in May 2017 with further complications related to the aortic dissection, said he was notified of his suspension June 22 and told by Berry he “was not capable of performing his job responsibilities.”

A civil suit provides only one side of a dispute. The county will file a formal response before the case proceeds in Hardin Circuit Court.

 Ben Sheroan can be reached at 270-505-1764 or bsheroan@thenewsenterprise.com.

Lawsuit over tear in aorta brings $6.5M

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By Lauraann Wood
Law Bulletin staff writer
The estate of a man who died after physicians failed to identify and treat a tear in his aorta has settled its wrongful death case for $6.5 million.

The agreement was entered Monday, one day ahead of opening statements in plaintiff Beth Figaro’s case, which alleged Northwest Community Hospital and several of its physicians failed to recognize the signs and symptoms of her husband Nicholas’ aortic dissection before his condition worsened and eventually caused his death.

Nicholas Figaro, 35 at the time, arrived at the Arlington Heights hospital by ambulance in December 2010 complaining that he had experienced sudden stabbing chest pains. He received a chest X-ray, the results of which were read as normal by physician Vinay Singh despite indicating the portion of his aorta closest to his heart was enlarged.

With consistent unrelieved discomfort, Figaro was admitted overnight and the next morning underwent a stress test. Results indicated he had a cardiac abnormality and that he could possibly have been experiencing an inadequate blood supply to his coronary arteries.

“That was, however, interpreted by the physicians caring for Nick Figaro as being a false positive and in fact read by the defendants as being nothing to worry about and as a result discharged him,” said Bradley M. Cosgrove, a partner at Clifford Law Offices who represented Figaro’s estate.

Figaro left the hospital around 5 p.m. the day after he was admitted, said Michael S. Krzak, a partner at Clifford Law who also represented Figaro’s estate.

He picked up his prescriptions on the way home with his wife and young daughter, Krzak said, then ate dinner, washed up and presented birthday cards to his father before heading to bed.

“At 3 a.m., he got out of bed and fell face-first into a nightstand,” Krzak said. “His wife turned him over and he was unresponsive. (She) and his father tried to give him CPR to revive him, but he did not come back to.”

Autopsy results showed Figaro died from cardiac tamponade, a condition in which fluid fills the sac surrounding the heart to the point that the pressure prevents the heart from beating. That happened, the autopsy showed, because a tear on the inside of Figaro’s ascending aorta caused its middle membrane to fill with blood — which eventually caused the outside of his aorta to burst.

Figaro likely suffered the aortic dissection due to a congenital abnormality of his aortic valve, Cosgrove said.

In May 2012, Beth Figaro sued Northwest Community, Singh, her employer Northwest Radiology Associates, cardiologist employer Dev Medical Associates and various other physicians who saw and treated Figaro the day he went to the emergency room.

She alleged Northwest Community was careless and negligent when Figaro’s physicians failed to properly identify and treat his aortic dissection.

The suit also alleged Singh should have reported an abnormality in the patient’s chest X-ray and ordered further testing.

A reading on the same X-ray by any radiologist, emergency room or tending physician or cardiologist should have indicated an abnormality and required an additional workup, Cosgrove said.

“That workup would have entailed a CT scan, and the scan would have, with almost absolute certainty, diagnosed the aneurysm in Mr. Figaro prior to it rupturing,” he said.

Had the physicians done that, Krzak said, surgeons could have performed an emergency surgery to repair the aorta and he “more likely than not would have lived.”

The defendants denied the allegations. Singh contended Figaro’s chest X-ray was not abnormal and fell within the range of normal variations, and Dev contended its X-ray did not require any follow-up testing when he performed well in his stress test.

Shannon M. McNulty, a partner at Clifford Law who also represented Figaro’s estate, said the defense at one point contended what the plaintiff called an abnormality was actually a shadow. Testimony eventually indicated that a bulge could be identified but the physicians see it all the time, she said.

Some parties entertained the idea of participating in a mediation this summer, McNulty said, but not every physician agreed.

The parties had been sent to trial before Circuit Judge Thomas V. Lyons II and seated a jury when Northwest, Singh, Northwest Radiology and Dev presented their $6.5 million settling offer. That final offer, Cosgrove said, was one of several they made surrounding the jury selection process.

The estate will receive $3.5 million from Northwest Community Hospital, $1 million from Singh, $1 million from Northwest Radiology and $1 million from Dev. All other named defendants were dismissed.

“We hope that the doctors can walk away from the litigation with a newfound sense of how they practice and adhering to the standards of care that they must follow with every patient encounter,” McNulty said.

Krzak said Figaro’s family has a sense of relief that the case is over and can now move on from it to the best of their ability.

“Beth initially brought this lawsuit to find out what happened, and she’s hopeful a lesson was learned so that no other family ever has to go through what she went through in losing her husband from something that a simple CT scan could have prevented,” he said.

Michael T. Trucco, a partner at Stamos & Trucco LLP who represented Singh and Northwest Radiology, declined to comment.

Sheldon A. Brenner, a partner at Brenner, Monroe, Scott & Anderson Ltd. who represented Dev, also declined to comment.

Robert S. Baker, a partner at Baker & Enright who represented the hospital, could not be reached.

The case is Beth Figaro v. Northwest Community Hospital et al., 12 L 4745.

Aortic Dissection Diagnosis Delayed

Selected Illinois Verdicts and Settlements

$4,500,000 Verdict (Will County): After M-43 entered defendant’s E/R with severe chest pains, a CT-scan showed a dilated aorta, raising the suspicion of aortic dissection. To confirm the diagnosis, a CT-scan with contrast was ordered, but was not performed. When the dissection was finally diagnosed hours later, a surgeon could not be located to do the repair on an emergency basis. Consequently, the patient suffered cardiac arrest and died before surgery could be done. The verdict, which was against multiple defendants, is subject to several high/low agreements, which reduced the total award to $3,350,000.

$4,750,000 Settlement (Cook County): On February 11, M-45 underwent a magnetic resonance angiogram that had been ordered by his cardiologist to check for an aneurysm. However, the scan was not read until February 21—one day after the patient died due to an untreated ascending aortic dissection. Timely reading of the scan would have revealed the condition, which was more likely than not treatable surgically.

Defense Verdict (Lake County): Allegedly, defendants negligently failed to order proper tests and obtain a cardiothoracic surgical consult after M-62 was brought to the E/R with significant chest pain. As a result, the patient coded and died from an undiagnosed aortic dissection. The defendants argued that the patient did not present with signs/symptoms that were indicative of aortic dissection. The defense further asserted that even if the dissection had been diagnosed earlier, it was so severe that the patient most likely would not have survived any attempted repair surgery. Reportedly, a family practice group settled out for $550,000 after the close of evidence.

Defense Verdict (Cook County): Defendant radiologist misread the patient’s CT-scan as normal, failing to identify a clear aortic dissection, resulting in a 5-hour delay in diagnosing a dissecting aortic aneurysm. While M-50 was in the operating room being prepared for surgery, his ascending aorta ruptured, resulting in severe brain damage that subsequently claimed his life. The court directed negligence against defendants. However, the defense denied causation, contending that the diagnosis of aortic dissection was made in time for the patient to receive corrective surgery—and that subsequent delays by other treating doctors were the sole proximate cause of the brain damage. Reportedly, the estate will receive $500,000 from defendants pursuant to a high/low agreement. In addition, the defendant hospital previously settled out for $1.2 million.

$1,000,000 Settlement (Winnebago County): On-call cardiologist ordered a CT-scan shortly after F-61 was admitted to the hospital for chest and back pain, but the order was not carried out for 48 hours. Consequently, the patient’s aortic dissection ruptured and caused her death. Allegedly, defendant’s nurses misinterpreted the order and canceled it.

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