Arkin v. Gittleson

32 F.3d 658, 1994 WL 382938
CourtCourt of Appeals for the Second Circuit
DecidedJuly 21, 1994
DocketNo. 1249, Docket 93-9119
StatusPublished
Cited by16 cases

This text of 32 F.3d 658 (Arkin v. Gittleson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Arkin v. Gittleson, 32 F.3d 658, 1994 WL 382938 (2d Cir. 1994).

Opinion

LUMBARD, Circuit Judge:

Susan Arkin and her husband Mark Arkin appeal from an October 5, 1993 judgment of the Eastern District of New York (Tsoucalas, J.1), granting judgment as a matter of law2 to Dr. Roger Gittleson. The Arkins sued Dr. Gittleson after he allegedly mistreated Susan for a pulmonary embolism that developed following childbirth by cesarean section at Long Island Jewish Medical Center in Queens. The embolism eventually resulted in permanent partial blindness. At a jury trial in July 1993, the Arkins presented expert testimony that Dr. Gittleson should have treated Susan differently and that if he had, “this would not have happened.” Dr. Gittle-son presented expert testimony that there is no way to tell whether and to what extent Susan would have suffered injury if he had treated her differently. The jury found Dr. Gittleson liable and awarded $1,202,500 to the Arkins. Dr. Gittleson moved for judgment as a matter of law, and the district court granted the motion on the ground that the Arkins failed to present evidence that Dr. Gittleson’s negligence proximately caused Susan’s injuries. We reverse.

I.

In 1985, Susan, at age 40, wished to have a baby, but was concerned about the risks at her age. She placed herself under the care of Dr. Gittleson, who advised that she should be able safely to give birth. Susan became pregnant, and continued under the care of Dr. Gittleson and his partner, Dr. Richard Roberts.

Records from an office visit in June 1986 show that Susan had edema — swelling—in her legs, which is common during pregnancy. Records from several subsequent office vis[660]*660its, however, contain no reference to continued edema.

On July 14, 1986, Susan entered the early stages of labor. The Arkins went to the office of Dr. Roberts, who advised that Susan was very early in childbirth and that it was unnecessary to go to the hospital yet. By 10 p.m., as Susan’s contractions became discomforting and unsteady, the Arkins went to the hospital. Dr. Roberts examined Susan at about 11:30 p.m., and after efforts to induce natural childbirth, performed a cesarean section at 4:30 a.m. on July 15.

On July 16, Dr. Gittleson visited Susan and found her doing well. Susan Roach-Darcy, an assistant nursing care coordinator, cared for Susan and recorded Susan’s condition on July 16 and 17. On July 16 at 11 p.m., Susan’s blood pressure was 140 over 80, her pulse was 90, and her abdomen was softly distended. She suffered no edema, shortness of breath or difficulty in breathing, each of which would have been noted if present.

On July 17, Susan’s blood pressure was 130 over 80, her pulse was 80, and her abdomen was soft. At 11 p.m., Susan complained of abdominal pain, and received medication. Edema in her feet and ankles was noted.

On July 18, Mark arrived at 3 p.m. He testified that Susan looked gray, and that she complained of nausea and difficulty in breathing. Trieia Lewis, a registered nurse, recorded Susan’s condition. At 5 p.m., Susan’s blood pressure was 140 over 84, her pulse was 104 and her abdomen was distended with underactive bowel sounds noted (abdominal pain and dysfunction are symptoms of a paralytic ileus, a common post-operative condition). She was assisted out of bed to the bathroom, and returned to bed complaining of lightheadedness and tingling around her nose and ears. She continued to complain of dizziness, and her vital signs were checked again. Her blood pressure was 90 over 60, her pulse was 120 and her respiration rate was 30 and regular. She appeared nervous, and Lewis encouraged her to do relaxed breathing exercises. Another check of vital signs showed that Susan’s blood pressure was 124 over 80, her pulse was 120 and her respiration rate was 24 and regular. Lewis consulted with Dr. Stephen Goldman, a resident, who instructed that Susan should be observed for continued signs of lighthead-edness or orthostatic hypotension (the lowered blood pressure and increased pulse that sometimes occur when people rise from a position of rest).

At 5:15 p.m., Susan complained of severe abdominal discomfort. Two milligrams of Dilaudid — a narcotic painkiller — were administered. Susan indicated relief.

At 6 p.m., Susan was resting comfortably. At 7 p.m., Susan was in the company of Mark and another visitor, had no complaints and appeared to be resting comfortably.

At 7:40 p.m., Dr. Gittleson arrived. Mark testified that he expressed concern about Susan’s appearance to Dr. Gittleson, who assured that Susan’s-breathing difficulty was not serious and explained that “Susan gets hyper and gets excited.” Dr. Gittleson had Susan breathe into a paper bag. Roach-Darcy testified that Dr. Gittleson had come to the nurses’ station to obtain a paper bag.

At 8:30 p.m., Susan was assisted out of bed to the bathroom and returned to bed complaining of dizziness. A cheek of vital signs showed that her blood pressure was 100 over 60 and her pulse was 150. Dr. Gittleson was in attendance and was noted as aware of the vital signs. Susan complained of severe abdominal pains. She was encouraged to relax and breathe deeply. Upon another check, her blood pressure was 130 over 90 and her pulse was 160. Dr. Gittleson was still in attendance. Circumoral cyanosis — blueness around the mouth, a sign of oxygen deprivation — was noted, and Dr. Gittleson was noted as being aware of it. Lewis testified that she asked Dr. Gittleson why Susan was purple around the lips. He said she might be hyperventilating.

At 8:50 p.m., two milligrams of Dilaudid were administered at Dr. Gittleson’s direction. He then left the hospital.

At 9:15 p.m., Susan was resting without complaints.

At 9:45 p.m., Susan complained of light-headedness. Her blood pressure could not be obtained even though she was placed in a supine position. Her pulse was 160. Lewis [661]*661alerted Roach-Darcy, who obtained a blood pressure of 60 over 54, a pulse of 170 and a respiratory rate of 24 and regular. Although Susan had no shortness of breath and no chest pains, she complained of severe abdominal pain and tightness in her chest. Roach-Darcy called for assistance. Susan’s blood pressure was still 60 over 54. Lewis’s notes show that Susan’s color was pale, that the circumoral cyanosis continued and that her abdomen remained distended. Susan demanded “Get my bra off ... I don’t care if you cut it off ... Get my bra off.” Dr. Goldman arrived. Susan’s blood pressure now was 60 over 50. Oxygen was administered via face mask.

At 10 p.m., an arterial blood gas measurement was obtained, and proved normal. Susan complained of a burning sensation on her face and forehead.

At 10:05 p.m., Dr. Gittleson returned to the hospital. Susan was transferred to a recovery room where more space and equipment were available. She talked to the attending caregivers all the way to the recovery room, but then she fell back, apparently unconscious. A code for assistance with a cardiac arrest was called in the hospital. Dr. Roberts inserted an endotracheal tube to get oxygen into Susan’s lungs. Numerous other steps — including chest compression and cardiac defibrillation — were taken throughout the night and succeeded in saving Susan’s life. Altogether, Susan suffered three cardiac arrests.

The cause of Susan’s cardiac arrests was uncertain until well into the night.

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Arkin v. Gittleson
32 F.3d 658 (Second Circuit, 1994)

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Bluebook (online)
32 F.3d 658, 1994 WL 382938, Counsel Stack Legal Research, https://law.counselstack.com/opinion/arkin-v-gittleson-ca2-1994.