— A Montgomery County jury has awarded $1.83 million to the estate of a man who died from a heart problem, in a lawsuit alleging an emergency room physician failed to diagnose his condition.
The jury in late September awarded $738,500 in wrongful death damages and $1.09 million in survival damages, according to the verdict sheet in Polvino v. Pottstown Memorial Medical Center .
Joseph D. Polvino, 37, went to the hospital’s emergency room April 3, 2007, complaining of sharp pain in his throat and the upper, central area of his abdomen, according to the plaintiffs’ pretrial memorandum.
Polvino was diagnosed by emergency room physician Dr. Cyrus Houshmand with pneumonia, but Polvino was having cardiac problems, the plaintiffs’ pretrial memorandum said. Polvino died from cardiac tamponade, which caused his heart to not pump properly because the tissue surrounding his heart was inflamed and fluid collected inside of the sac, according to court papers.
Polvino died 19 hours after being discharged from the emergency room, according to the hospital’s pretrial memorandum.
The hospital’s radiologist read the X-ray films of Polvino’s chest as not showing any signs of pneumonia, while Houshmand did find evidence of pneumonia, Polvino’s pretrial memorandum and the hospital’s pretrial memorandum said.
Houshmand said in his pretrial memorandum that cardiac tamponade was not indicated because Polvino’s heart sounds did not exhibit the sounds often associated with inflammation of the sac around the heart. Houshmand also said in court papers that Polvino’s chest pain was associated with a productive cough, and chest pain with a productive cough is generally not associated with cardiac disease. Houshmand also said that Polvino’s EKG did not demonstrate that he had inflammation in the sac around his heart.
While Houshmand said in court papers that Polvino has a history of gastric reflux disease, irritable bowel syndrome, hypothyroidism and smoking cigarettes, Polvino had no history of coronary artery disease, heart attack or hypertension.
The hospital said in its pretrial memorandum that “Dr. Houshmand did not note observance of any of the symptoms of cardiac tamponade known as Beck’s Triad.”
Aaron J. Freiwald, the attorney for Polvino’s estate as well as Polvino’s widow, Sharon Polvino, said that their theory was not that Houshmand should have diagnosed Polvino with cardiac tamponade, but that Houshmand should have diagnosed Polvino with a heart problem that needed the expert attention of a cardiologist.
“The jury was persuaded there were a lot of signs and symptoms of a cardiac condition,” Freiwald said. “What we said from the beginning was the doctor didn’t need to figure out the ultimate diagnosis. He just needed to figure out there was a heart problem and this patient needed to be seen by a cardiologist.”
The plaintiffs argued the hospital, because of vicarious liability through an emergency nurse, could have been liable if there was evidence that she did not report that Polvino had high blood pressure when he came into the hospital but that he had low blood pressure shortly before he was released.
Susan Ellis Wild, of Gross McGinley in Allentown and who represented the hospital, said that, after the plaintiffs’ case in chief closed, the hospital was released out of the case on its motion for nonsuit regarding the vicarious liability because of nurse Kim Vitelli.
Freiwald and Wild said that the plaintiffs’ expert said that the nurse acted appropriately.
Freiwald said they were not really pursuing a case against the nurse.
While the hospital got out of the case because the claim against the nurse was dismissed, the hospital was still in the case because Houshmand is an employee of the hospital, Wild said.
The hospital and Houshmand presented a joint defense, Wild said.
Because the judge ruled in favor of the hospital in terms of vicarious liability regarding the nurse but the jury found against Houshmand and the hospital vicariously, Wild said: “Basically, I won the case and lost the case.”
Houshmand’s personal counsel paid through his liability carrier was Benjamin A. Post and Daniel J. Rovner.
Post said in a statement that Houshmand is arguing in post-trial motions that his medical decision-making was appropriate and that he should have been able to introduce evidence of Polvino’s medical conditions.
“As our post-trial motions respectfully state, and which are a matter of public record, we were prevented from introducing any of the patient’s past medical records,” Post said in his statement. “Therefore, the jury did not get a full understanding of all of the patient’s history in this case which involved a very complicated and rare medical condition. For example, the patient left the emergency room with a blood pressure of 95/51, and the jury may have thought this blood pressure was too low for discharge. But we were prevented from showing the patient’s underlying history wherein this blood pressure was normal for him.”
Houshmand argued in court papers that “while the death of a 37-year-old Mr. Polvino is sympathetic, the unfortunate truth is that while in the emergency room, this patient demonstrated complaints and diagnostic study results completely atypical of the condition which took his life 19 hours later.”
Polvino, who worked for Norristown’s department of public works, earned $32,000, and the plaintiffs’ economic expert, David Hopkins, estimated Polvino’s lost earnings were $1.1 million to $1.37 million, according to the plaintiffs’ papers.
The jury deliberated for about nine hours, Freiwald said.
Wild and Freiwald said they didn’t talk to jurors because they were deliberating until 10 p.m., but the presiding judge, Montgomery Common Pleas Court Judge Kent Albright, did speak with them.
Post-trial motions are pending.
Katherine M. Robinson was plaintiffs’ co-counsel.