Robert R. Sappe and William T. Collins, III provided a fine example of Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) dedication to teamwork in winning summary judgment for our clients, an orthopedic surgeon, a sports medicine specialist and the practice to which they belong, in this medical malpractice and wrongful death claim alleging failure to diagnose an evolving clot in a cardiac artery of the patient.
The patient, who was on a statin for slightly elevated cholesterol levels prescribed by his primary physician, initially presented to FKC&S’s orthopedic surgeon in May 2020 complaining of atraumatic non-radiating left shoulder pain. After obtaining the patient’s history (which denied any cardiac history or complaints), examining the patient and reviewing imaging of the shoulder, FKC&S’s client diagnosed the patient with impingement of the left shoulder and administered a cortisone injection which provided several-months of relief, thus confirming the diagnosis.
The patient did not return to see the orthopedic surgeon afterward. However, in September 2020, the patient visited his cardiologist, who, after cardiac testing, cleared the patient of any significant cardiac issues. The patient returned to FKC&S’s client’s orthopedic practice in January 2021, at which time he saw a sports medicine specialist (also represented by FKC&S). The patient complained of increasing atraumatic pain to the left shoulder and neck for several months. Once again, the patient denied any cardiac history or complaints. FKC&S’s client examined the patient and diagnosed him with shoulder impingement syndrome.
The plan was for physical therapy and prescription pain medication. However, the patient’s pain did not improve, which led him to visit the local emergency room (ER) at the co-defendant hospital in February 2021. There, the patient was seen by a co-defendant emergency medicine specialist, who diagnosed him with chronic shoulder pain. The patient was discharged after pain medication improved his pain and he was told to follow up with his orthopedist in two days. Two days later, the patient followed up with FKC&S’s client, the orthopedic practice, and saw our sports medicine client.
The patient reported that the prescription pain medication provided some relief of the pain and of the recent hospital encounter. The patient provided an interval history of worsening, atraumatic left shoulder pain, particularly with activity, minimal pain without movement of the left shoulder and occasional radiating pain throughout the neck and arm into the hand. The patient expressly denied any associated chest pain or cardiac complaints.
FKC&S’s sport medicine client felt this was impingement and tendonitis and, therefore, ordered an MRI and prescribed a muscle relaxant. The patient participated in physical therapy later that afternoon without complaints other than the left shoulder pain. That evening, while at home, the patient had a heart attack and died. The autopsy report identified a 100 percent occlusion of the left main artery from a plaque thrombus as the cause of death.
After discovery was completed, Collins made a motion for summary judgment arguing that FKC&S’s clients did not deviate from accepted practice during their respective encounters with the patient and that their acts were not a proximate cause of the patient’s heart attack and consequential death. The gravamen of the arguments on behalf of FKC&S’s clients was that the patient’s complaints of pain were limited to the left shoulder and the patient expressly denied any cardiac history or complaints, including angina. Accordingly, there was nothing during the three encounters with FKC&S’s clients that should have elevated their index of suspicion of a cardiac cause of the patient’s complaints.
The plaintiff opposed the motion arguing in part that the fact the patient was on a statin should have elevated the defendants’ index of suspicion for a cardiac cause of the left shoulder pain. After the motion was fully briefed and submitted, the assigned judge requested oral argument of several “interesting issues” raised in the motion.
Sappe handled the oral argument, during which he focused on the legally insufficient affidavits of the plaintiff’s expert orthopedist and expert cardiologist used in opposition to the motion. Particularly, he argued that the plaintiff’s expert used “facts” that were not in the record before the court in opining that FKC&S’s clients were negligent. Sappe pointed out that plaintiff’s experts based their opinions on the patient’s reports of “radiating pain from the left shoulder down his arm,” which was nowhere in the medical records concerning the first two encounters with FKC&S’s clients, and which was specifically denied by the plaintiff/surviving spouse at her deposition.
With respect to the final encounter with FKC&S’s sports medicine specialist, Sappe argued that though the patient had radiating pain from the shoulder down the arm, such a complaint without a corresponding complaint of cardiac pain (i.e., angina), is inconsistent with a cardiac cause of his symptom and consistent with an orthopedic issue. He also argued that the plaintiff’s experts failed to rebut this very argument that Collins made in the original motion papers, thus the plaintiff conceded the point.
The judge asked the attorneys for their respective clients to submit supplemental memorandums in support of their positions, which Sappe did, highlighting the points he made during oral argument. After the additional briefing of the summary judgment motion, the Supreme Court judge sitting in Putnam County dismissed the case against FKC&S’s three clients.