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Fultz v. Peart





Appeal from the Circuit Court of Jefferson County; the Hon. Philip B. Benefiel, Judge, presiding.


Plaintiff, Eugene Fultz, brought suit in the circuit court of Jefferson County alleging that defendant, SIMC, Inc., doing business as Marco Pharmacy (Pharmacy), was negligent in filling his prescription with the wrong medication, that defendant Dr. Kenneth A. Peart and defendant Southern Illinois Clinic, Ltd. (Clinic), were negligent in providing medical treatment and that defendants' negligent actions were the proximate cause of plaintiff's illness and stroke. The jury returned verdicts for the plaintiff and against all defendants. Defendants Dr. Peart and Clinic appeal. Defendant Pharmacy is not a party to this appeal.

On Friday, June 20, 1980, plaintiff's wife went to defendant Pharmacy to refill his prescription for Dymelor, an oral medication for the control of diabetes mellitus. Originally diagnosed as a noninsulin-dependent diabetic in 1969 or 1970, Fultz' disease had been under control for approximately 10 years. Maintaining control of noninsulin-dependent diabetes requires a careful balancing of daily food and insulin requirements. Dymelor stimulates an underproducing pancreas to produce a sufficient amount of insulin. Generally, Fultz took five Dymelor tablets a day.

At the Pharmacy, Fultz' Dymelor prescription bottle was filled with Aldomet, a prescription drug used to reduce blood pressure in individuals suffering from high blood pressure. Aldomet tablets are a slightly different color, shape and size from Dymelor tablets. In taking Aldomet instead of Dymelor, Fultz was not producing sufficient insulin to maintain control of his diabetes and he was receiving an Aldomet dosage significantly greater than the maximum recommended dosage for an individual suffering from high blood pressure. Fultz did not suffer from high blood pressure.

Within 24 hours, Fultz began experiencing chills, shakes, drowsiness and a general decrease in appetite. These symptoms continued through June 24, 1980, when Fultz felt too ill to go to work and contacted defendant Clinic to make an appointment with his physician. Fultz was informed that his physician was on vacation and was referred to Dr. Peart, also a Clinic employee. Fultz saw Dr. Peart on the morning of June 24, 1980.

During the office visit, Fultz complained of chills, shakes, dizziness, fatigue and seeing bright flashing lights. Dr. Peart conducted a clinical examination which revealed that Fultz had a slight fever and a blood pressure of 100/60. Although a blood pressure of 100/60 is low for a man of Fultz' age and general medical condition, it is still within the normal range. Fultz' pulse rate was 140 which is quite rapid. Normal pulse rates range between 60 and 80. A blood count revealed no infection. Based on Fultz' diabetic history, Dr. Peart ordered a blood sugar test which revealed a blood sugar level of 307 milligrams per deciliter. Normal blood sugar levels range from 65 to 110 milligrams per deciliter. Dr. Peart diagnosed Fultz as suffering from diabetes out of control with a fever of unknown origin and suggested hospitalization to conduct additional tests and to re-establish control of his diabetes. Neither Dr. Peart nor Fultz were aware that Fultz had been receiving the wrong medication.

Fultz was admitted to Good Samaritan Hospital in Mt. Vernon, Illinois, on June 24, 1980, where additional tests were performed. Dr. Peart ordered blood sugar level and ketone body checks four times per day. The first two tests performed on June 24, 1980, revealed blood sugar levels of four plus on a scale of zero to four and were negative for ketone bodies. A four-plus blood-sugar level indicates diabetes out of control. Test results negative for ketone bodies indicates that Fultz was not in ketoacidosis, a breakdown of body fats which results in diabetic coma. The third test was three plus on a scale from zero to four for ketone bodies which is an indication of dehydration. An electrolytes balance test was normal, which is an indication that Fultz was not suffering from dehydration. A lipid profile indicated that his triglycerides were quite elevated. High triglycerides are consistent with the diagnosis of diabetes out of control. All other tests returned normal findings.

On June 25, 1980, Fultz' wife realized that the development of his symptoms coincided with the recent refill of his Dymelor prescription and that he had mentioned the refill pills were a slightly different shape from his previous pills. Suspecting the possibility of a medication error, she took some of the pills to the hospital on June 26, 1980, when she went to visit her husband. Dr. Peart identified the pills as Aldomet, a prescription medication for high blood pressure, and indicated that he would contact defendant Pharmacy concerning the prescription refill. Dr. Peart did not inform Fultz of his ownership interest in defendant Pharmacy. June 26, 1980, is the first time the parties knew there had been a medication error.

In the hospital, Fultz was removed from all medication and placed on a controlled diabetic diet and a sliding scale of insulin to determine his daily insulin requirement. Although his blood sugar level continued to drop, it remained above the normal range. By July 3, 1980, the date of his release, Fultz' blood sugar level of 155 was still above normal, but Dr. Peart considered it an acceptable level to allow discharge. Throughout his hospitalization, Fultz' blood pressure remained consistently low. Although within the generally accepted normal range, it was notably low for a man of his age and medical history. Additionally, his past blood pressure readings had been significantly higher. No additional tests were performed to determine the determine the reason for his consistently low blood pressure, and on the date of release, Fultz' blood pressure was 98/60, the lowest it had been since he entered the hospital.

On the morning of July 3, 1980, Fultz was released from the hospital. Sometime late that evening or early the next morning, Fultz suffered a cerebral infarction, or stroke, resulting in a permanent loss of function to his right side, disorientation, and general debility. A CT scan revealed that a major area of his left frontotemporal lobe had been destroyed. Plaintiff's disabilities include partial paralyzation of parts of the right side of his body and the left side of his face, difficulty in speaking, memory tending to fade as he speaks and inability to perform even simple manual labor. He was readmitted to Good Samaritan Hospital under the care of Dr. Trivedi.

A cerebral infarction, more commonly called a stroke, is the death of brain tissue by one of three general mechanisms, all of which involve depriving the brain of an adequate blood supply and the oxygen it carries. Central nervous system tissue, of which the brain is a major portion, is extremely sensitive to oxygen deprivation. If the brain is completely deprived of oxygen for more than four minutes, a person will die. In a stroke, a portion of the brain is deprived of oxygen long enough for tissue death to occur. Brain tissue is unique in that it has no capacity for regeneration. Although post-stroke recovery is possible, such recovery involves utilizing undamaged cells or relearning, not the healing of damaged cells.

An elementary understanding of the different types of stroke is necessary in this case. There are three types of stroke: hemorrhagic, embolic and thrombotic. A hemorrhagic stroke results from the rupture of a blood vessel or aneurysm. Brain tissue normally supplied by the ruptured vessel is deprived of its blood supply and dies. Hemorrhagic strokes are rare and sudden in onset with little or no prewarning. All parties agree that Fultz did not suffer a hemorrhagic stroke. In an embolic stroke, a small embolus, a free-floating piece of plaque, lipid or blood clot, breaks loose from somewhere else within the circulatory system and eventually lodges in a smaller vessel, thus depriving brain tissue of its blood supply. Medical conditions that predispose an individual to an embolic stroke include phlebitis, heart murmurs, atrial fibrillation and arteriosclerosis. Embolic strokes occur suddenly with no forewarning. Fultz was suffering from arteriosclerosis wherein the blood vessel walls become less elastic and the diameter is narrowed because of deposits of cholesterol, and defendants contend that he suffered an embolic stroke which they could neither predict nor prevent. A thrombotic or occlusive stroke occurs when a blood vessel closes off because of a collapse in the vessel, a build up of lipids (fatty deposits) or plaque, or the formation of a blood clot which prevents the passage of blood. A thrombotic stroke develops gradually and is often indicated by transient ischemic attacks (TIA's). A TIA is the transient loss of neurologic function and occurs because the blood vessel is narrowing and the brain is not receiving enough blood to function at 100%, but it is receiving enough blood to keep the tissue alive. Because the area of the brain that is not being completely profused with blood is the same area that will be damaged by any thrombotic stroke, the accompanying TIA's are evidenced by short-term losses in the same functions. TIA's may be evidenced by garbled speech, behavior changes, and paralyzation or weakness. Plaintiff contends that he suffered a thrombotic stroke which defendants could have prevented with proper medical treatment.

Fultz brought suit asserting that defendant Pharmacy negligently refilled the prescription with the wrong medication and that defendants Dr. Peart and Clinic provided substandard medical care and that these actions were the proximate cause of his stroke. Fultz claimed that if defendant Pharmacy had properly refilled the prescription, he would not have suffered the stroke and that if defendants Dr. Peart and Clinic had properly treated him with intravenous fluids (IV fluids), he would not have suffered the stroke. Two expert medical witnesses testified for Fultz.

Dr. Howard Schwartz, director of emergency medical services at St. Louis County Hospital, a board certified toxicologist who teaches at St. Louis University Medical School, testified for Fultz. Dr. Schwartz testified that, based on a review of the hospital records, plaintiff's exhibits 1, 2, and 3, Dr. Peart failed to meet the standard of care required of a physician in providing care and treatment to a diabetic presenting Fultz' symptomatology. Based on the signs, symptoms, and tests given, Dr. Schwartz testified that plaintiff was dehydrated when he entered the hospital on June 24, 1980, and that he was still dehydrated when he was discharged nine days later on July 3, 1980. Dr. Schwartz testified that any diabetic out of control is dehydrated and that the effect of taking a blood pressure reducing medication like Aldomet would be to increase that dehydration. The records show that Fultz had an elevated urine specific gravity, rapid pulse, abnormally low blood pressure for a man of his age and medical history, and fever, all indications of dehydration. Dr. Schwartz testified that this prolonged period of dehydration resulted in a reduction of the actual volume of blood in Fultz' circulatory system, and insufficient blood volume combined with the lowered blood pressure to cause clotting of blood vessels in the brain which, in turn, resulted in a thrombotic stroke. Normally, blood within the blood stream remains liquid and does not clot; however, when there is low blood volume and low blood pressure, clotting can occur. Dr. Schwartz testified that failure to provide IV fluids deviated from both the proper national standard of care and from the standard of care in southern Illinois as he knew it. Dr. Schwartz further testified that had IV fluids been administered to replace lost fluids, the medical probability is that the stroke would not have occurred. Additionally, Dr. Schwartz testified that releasing Fultz on July 3, 1980, was a deviation from the proper standard of care since Fultz' blood pressure on that date was at its lowest recorded reading. Finally, based on hypothetical questions, Dr. Schwartz testified that TIA's would have been additional indications of low blood volume and low blood pressure resulting in poor profusion of the brain and the potentiality of a thrombotic stroke. Dr. Schwartz noted that the symptomatology as reported by plaintiff's wife were TIA's consistent with plaintiff's eventual stroke damage.

Dr. Harvey Liebhader, plaintiff's current treating physician, also testified as an expert medical witness. Dr. Liebhaber, also from St. Louis, Missouri, is currently in private practice and specializing in internal medicine. The treatment of diabetics and stroke victims is a substantial portion of his practice. During his professional career, Dr. Liebhaber has field faculty positions at several major medical schools. Dr. Liebhaber testified extensively concerning the relationship of diabetes out of control and dehydration. Dr. Liebhaber testified that dehydration was indicated by the three-plus ketone-body findings, the very low blood pressure, the elevated sugar levels and other factors including the rapid pulse rate. When a diabetic is out of control, his body cannot utilize sugar for energy. Excessive amounts of sugar accumulate in the blood and are flushed out of the body as it passes through the kidneys. The diabetic becomes dehydrated because in order to pass the sugar out of the body, each molecule of sugar must attach to a molecule of water that would otherwise be retained within the body. With dehydration, the blood volume contracts and the blood pressure goes down. In a diabetic suffering from arteriosclerosis the blood vessels are rigid and cannot contract to help maintain blood pressure. Thus, a diabetic is less able to properly cope with major fluctuations in blood pressure. Relying on the hospital records, Dr. Liebhaber testified that Dr. Peart's care was substandard in that failure to administer IV fluids allowed Fultz' blood pressure to remain too low for too long. Dr. Liebhaber testified that additional indications of Dr. Peart's failure to follow both nationally recognized standards in the care of a diabetic out of control and in the standard within southern Illinois, as known by his contacts with physicians consulting in that area, include the failure to conduct a neurological examination, the failure to conduct a serum ketone to determine accurate sugar levels and the failure to check for evidence of TIA's. Based on information provided by plaintiff's wife, Dr. Liebhaber testified that during his hospitalization, Fultz was experiencing TIA's which manifested as behavior changes, mumbling, staring off into space, and not hearing conversations directed at him. Dr. Liebhaber testified that Fultz suffered a thrombotic stroke which could have been prevented by proper medical treatment. Additionally, Dr. Liebhaber testified that, in his opinion, it would have been impossible for Fultz to have suffered an embolic stroke since the only indication of arteriosclerosis was over the right carotid artery and plaque from that area could not have caused damage to the left hemisphere of the brain.

Dr. Samuel Bernstein, the executive director of Jewish Employment and Vocational Service, a comprehensive vocational rehabilitation agency, testified for plaintiff concerning his employability and the extent of his disability. Dr. Bernstein conducted extensive testing and interviewing and determined that plaintiff was unemployable, with no future prospects of ...

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