Wayne M. Rubin successfully obtained summary judgment on behalf of Feldman, Kleidman, Collins & Sappe LLP’s (FKC&S) client, a dermatologist based in Orange County, NY.
The plaintiff had alleged that the dermatologist had failed to diagnose and treat cellulitis (a skin infection) of the legs in a 75-year-old woman. The plaintiff claimed that the bacteria from the skin infection travelled to her blood stream and seeded her heart valve. She further alleged that this caused an infection in her heart (endocarditis) as well as vegetation growth that destroyed her valve, requiring valve replacement surgery. She claimed that during the valve replacement surgery, a piece of vegetation broke off and caused a stroke.
The plaintiff was seen by FKC&S’s dermatologist client on two occasions. The first time was in April 2022 when she was referred by her primary care physician to evaluate and treat blisters that had developed on her legs. The dermatologist diagnosed the condition as elephantiasis nostra verrucosa (ENV). ENV is a non-infectious condition that is caused by chronic swelling of the legs which causes plaques to form on the skin which resemble the skin of an elephant. The dermatologist recommended a steroid cream to soften the plaques and compression stockings to reduce the swelling. He further recommended that the patient return to her cardiologist for ongoing management of the swelling, which was thought to be due to a heart condition.
The patient used the cream but did not use the compression stockings. When she returned a month later (in May) she had developed open sores on the skin. The dermatologist told her to continue using the steroid cream and suggested compression stockings again. He also referred her to a wound care clinic at the local hospital to assess the open wounds. He did not prescribe an antibiotic at that visit since he felt the symptoms were due to ENV, not an infection. The plaintiff alleged that the dermatologist should have prescribed an antibiotic which would have stopped the spread of the bacteria from her skin to her bloodstream, thereby preventing vegetations from destroying her heart valve.
Notably, a few days before the plaintiff’s visit to the dermatologist in May, she went to a local emergency room (ER) to seek treatment for the same open leg wounds. Evidently, she did not mention this ER visit to the dermatologist when she saw him days later. At her ER visit, a doctor diagnosed the plaintiff with stasis dermatitis and cellulitis. She was prescribed Doxycycline, an antibiotic, which she filled. The ER doctor also referred the plaintiff to the same wound care clinic that the dermatologist ultimately referred her to.
In early June, before the plaintiff could be seen at the wound care clinic, the wounds on her legs began draining. She called her primary care doctor who sent her back to the ER. At the ER, she was diagnosed with cellulitis and bacteremia (bacteria in her blood stream). A blood culture showed that the bacteria was Streptococcus Viridans (S. Viridans). She was also found to have vegetations on her heart valve caused by the S. Viridans infection. She was put on IV antibiotics and transferred to a tertiary facility to undergo the heart valve replacement surgery mentioned earlier.
In consultation with an infectious disease specialist, FKC&S’s Wayne Rubin drafted a 13-page affirmation in which he successfully demonstrated to the court that S. Viridans is a bacteria that is not found on the skin and therefore the plaintiff’s endocarditis could not have come from a skin infection. He also demonstrated that, due to the size of the heart valve vegetation, it would have already been present when the patient first saw the dermatologist. Therefore, the dermatologist was not responsible for the destruction of the heart valve. Rubin further demonstrated that – at the time the plaintiff saw the dermatologist – her symptoms would not have raised a concern for endocarditis, so he was not negligent for not diagnosing endocarditis.
The plaintiff attempted to oppose Wayne’s evidence with her own expert, but the court was not convinced because she did not address the substance of FKC&S’s experts’ affirmations. In addition, the court found the plaintiff’s expert opposition to be speculative, insufficient and conclusory. The case was dismissed in its entirety.