Medical Malpractice Claim Tried, Won By Respondent

Saturday, May 5, 2007 | 0

By Anne Hammill-Pasqua

Respondent successfully defeated petitioner's dependency claim petition for alleged medical malpractice in the matter of Karak v. DuPont. The matter was tried in the Division of Workers' Compensation pursuant to Hawksby v. DePietro as the alleged malpractice was against decedent's co-employees, respondent's employee assistance staff. Capehart Scatchard workers' compensation shareholder, Lora V. Northen, Esq. tried the matter to conclusion which included both lay testimony and expert testimony. At oral argument, Ms. Northen argued that respondent's EAP staff actions were consistent with the applicable standards of care and that there was no deviation that led to decedent's death. The judge found in respondent's favor and dismissed the claim.

The litigation of a medical malpractice case is very unique in the Division as the issue of negligence is litigated rather than the usual no fault standard. To succeed on the claim for malpractice, petitioner has the burden of proof to establish the applicable standards of care, that a deviation has occurred, and that the deviation proximately caused the injury. The petitioner alleged that her husband committed suicide due to work stress. She also claimed the suicide occurred as a result of an alleged misdiagnosis by respondent's employee assistance staff and company doctor. By way of background, the petitioner's claim of workrelated stress was dismissed pursuant to Cairns v. City of East Orange, 267 N.J. Super. 395 (App. Div. 1993). The matter was remanded to the Division of Workers' Compensation on the issue of alleged malpractice by coemployees.

The decedent transferred to respondent's Repauno plant on May 1, 1992 after another plant was downsized. Decedent worked rotating shifts. The petitioner also moved to a new home where construction was ongoing in the development. The skylights in his room and noise from the construction prevented decedent from sleeping at home. Decedent put a bed in the basement of the home to insulate him from the noise. Petitioner testified her husband started to behave differently around Christmas time in 1992. The decedent seemed depressed to the petitioner. On April 13, 1993, decedent went to see Dr. Rosero, a general practitioner. The doctor's impression was that decedent had anxiety and may be in the early stages of depression. The doctor relayed his concerns to petitioner and told her to watch decedent closely for the next 72 hours. He also told her to report her observations to him. On April 15, 1993, decedent went to work having taken the medication prescribed by Dr. Rosero. The decedent consulted with DuPont's occupational nurse due to complaints of nausea and diarrhea. The nurse called Dr. Rosero regarding decedent. The nurse advised decedent that he could not work that night on the new prescription with sedative effects. The nurse sent the decedent home pending an evaluation with the company doctor, as to whether decedent could work with those medications. The nurse also referred decedent to contact the employee assistance program consultant. Decedent met with the EAP consultant on April 16, 1993. The decedent's core complaint was that he was not sleeping. The EAP consultant referred decedent to see a psychiatrist, Dr. Glass. Petitioner was also referred to the company doctor that same day to assess return-to-work status. The doctor returned decedent to work without restrictions consistent with decedent's wishes and the result of his return-to-work evaluation. The decedent was evaluated by Dr. Glass on April 23, 1993. Dr. Glass evaluated decedent to assess if he was suffering from depression and the need for treatment. Dr. Glass concluded decedent had no psychiatric diagnosis and his prognosis was excellent. The EAP consultant called Dr. Glass' office regarding the April 23, 1993 evaluation. The EAP consultant was advised that there was no diagnosis and no treatment recommendations by Dr. Glass. The EAP consultant subsequently received a report confirming same.

The occupational nurse rechecked decedent's blood pressure on May 4, 1993. As decedent's blood pressure was elevated, the nurse recommended that decedent follow up with a local medical doctor for evaluation for same and for the gastrointestinal problems. During the visit, the nurse asked decedent if he was having any problems with his job. Decedent said his job was a "piece of cake." On May 4, 1993, decedent received verbal counseling at work. Verbal counseling is a minor discipline, the first step of a three-step process should improvements not be made. The decedent was counseled on excessive use of emergency bank days, sudden illnesses and inappropriate behavior. Petitioner was not aware of this verbal counseling until after his death. Petitioner testified her husband was late coming home from work on May 4, 1993. She described decedent as being very nervous and upset when he came home that morning. Petitioner testified that morning her husband told her "one day you're going to come home and find me, and he pointed to his head." Petitioner testified she was appalled that her husband made this gesture. Despite witnessing this behavior, she did not tell her husband that guns needed to be removed from the house. She did not call Dr. Rosero, who had previously told her to watch him and report back to him. Nor did she contact the DuPont staff. Decedent committed suicide on May 6, 1993 at his home Expert testimony of Dr. McKenzie was presented on behalf of petitioner. Expert testimony of Dr. Ziv was presented on behalf of respondent. The judge of compensation found Dr. McKenzie's opinion was not based upon facts in evidence but was that of a net opinion. The doctor also referred to a standard of care of a psychiatrist as opposed to that of the EAP staff. The judge noted Dr. McKenzie cited to Dr. Rosero as viewing decedent as suicidal but a review of Dr. Rosero's testimony was not consistent with same. Dr. McKenzie points to decedent making a mistake at work but decedent denied that mistake. Dr. McKenzie also pointed to petitioner's observations of decedent's changes in behavior at home weeks prior to his death. However, petitioner never communicated these observations to the DuPont staff as highlighted by respondent at oral argument. Dr. Ziv found the DuPont staff acted within their applicable standards of care both individually and collectively within an employee's assistance program. The judge found Dr. Ziv's opinion supported by the evidence. The judge found the staff's referral of decedent to Dr. Glass as appropriate. The judge found decedent's death was not the result of a deviation from the appropriate standard of care by the DuPont staff and dismissed the claim for dependency benefits.

Anne M. Hammill-Pasqua is an attorney at Capehart Scatchard law firm located in New Jersey. This column first appeared in the law firm's newsletter. The law firm's Web site is http://www.capehart.com/CM/Custom/Home.asp. This article is reprinted with permission.

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