Fair v. Caruthers

Defense Verdict

Date of Verdict: May 29.

Court and Case No.: C.P. Lancaster County No. CI-15-398

Judge: James P. Cullen

Type of Action: Wrongful death, medical malpractice.

Injuries: Death.

Plaintiffs Counsel: Jeffrey Gutkowski, Atlee Hall, Lancaster.

Plaintiffs Experts: Dr. Vivek L. Parwani, emergency medicine; New Haven, Connecticut; Dr. Christopher A. Haines, family medicine, Philadelphia.

Defense Counsel: Edward J. Stolarski Jr., McCumber, Daniels, Buntz, Hartig, Puig & Ross, Norristown.

Defense Experts: Dr. David J. Axelrod, internal medicine; Philadelphia; Dr. Robert B. Norris, cardiology, Philadelphia.


On May 13, 2014, plaintiff’s decedent, Kenneth Fair, 52, a security guard, presented to family medicine physician Ralph Carruthers, in Columbia, with complaints of bilateral shoulder pain. Carruthers performed a normal exam, diagnosed musculoskeletal pain and prescribed pain medications.

On May 19, Fair returned to Carruthers with continued pain in his shoulders and with the pain more prominent in his left shoulder. He told Carruthers that the medication did not alleviate his pain. The physician prescribed different pain medication, instructed him to apply heat to his left shoulder and to return as needed.

On May 22, at 9 a.m., Fair contacted Carruthers’ office, Columbia Regional Heath Center, and told the receptionist that he was experiencing arm pain. The receptionist made an appointment to see Carruthers for 9:45 a.m.

Fair, feeling not well enough to drive, had his nephew, Jesse Ciesmelewski, drive him to Carruthers’ office. While en route, Fair began to experience shortness of breath and chest pain, which prompted Ciesmelewski to pull over and call 911. At some point, Fair lost consciousness and was transported by ambulance to a hospital. After attempts to resuscitate him failed, he was pronounced dead as a result of a myocardial infarction.

Fair’s estate, which was represented by his sister, sued Carruthers, alleging that he had failed to diagnose a cardiac-related issue when he had seen him on May 13 and May 19.

Ciesmelewski also sued Carruthers, alleging negligent infliction of emotional distress.

The estate and Ciesmelewski settled with Carruthers for an undisclosed amount, prior to trial.

The estate also sued Columbia Regional Heath Center, alleging that the receptionist Fair spoke to on May 22 had negligently failed to refer him to an emergency room or call 911.

The estate’s expert in family medicine testified that the standard of care requires that when a patient calls a medical practice complaining of unexplained arm pain, even if the symptom is “generic,” the staff taking the call has the responsibility to elicit more information from the patient.

The estate argued that, in Fair’s instance, the receptionist should have asked which arm was painful and if he had other symptoms. If she was uncertain whether Fair needed to be seen by Carruthers or go to an emergency room, then she should have transferred the call to a nurse in the office, who was in the position to engage Fair with more detail. The fact that the receptionist did not ask any follow-up questions, or in the alternative tell Fair to call 911, breached the standard of care, the expert concluded.

The hospital’s counsel maintained that the receptionist did not breach the standard of care in her discussion with Fair.

The receptionist, who had worked in previous hospital and medical settings, testified that, if she had sensed that Fair was in distress or experiencing a medical emergency, she would have directed him to call 911, but he was not. She testified that it was her usual practice to type into the office telephone-log a patient’s complaints. The log for May 22 read, “arm pain.”

Given the way that Fair sounded and the symptoms he described, the receptionist said, she believed it was appropriate to schedule an appointment with Carruthers.

The defense’s expert in internal medicine opined that the receptionist’s conduct, without knowing any background of the patient, other than that Fair had arm pain, did not fall below the standard of care. The expert concluded that, given the information that Fair provided to the receptionist, it was not necessary for her to tell him to call 911 or report to an emergency room, and that she had properly scheduled an appointment for Fair to see Carruthers that morning.

Prior to 2014, Fair had seen Carruthers on one prior occasion, in 2009. The visit corresponded with an emergency-room visit around the same time. The defense maintained that Fair was certainly familiar with emergency-room treatment and that if he knew he was experiencing a medical emergency, he should have gone to an emergency room on May 22. The defense cited Fair’s 2009 records which indicated that he was a heavy, longtime cigarette smoker, and that Carruthers had instructed him to stop smoking. When Fair saw Carruthers in 2014, he was still smoking; moreover, Fair had not undergone any medical evaluations during that five-year period, the defense asserted.

Fair was single, with no children, and lived with his sister. She testified that he was a good brother who helped around the house. His estate sought damages for past and future pain and suffering.

The estate’s expert in emergency medicine opined that, had the receptionist instructed Fair to hang up and call 911, one of several paramedic units in the proximity of Fair’s home could have gotten to him before the heart attack and provided supportive measures and/or applied a defibrillator, thereby increasing his chances of survival. Instead, Fair was improperly told to drive to Carruthers’ office, and on the way he suffered a fatal heart attack, the expert concluded.

The defense’s expert in cardiology disputed that Fair would have increased his chances of survival had he called 911 from his house. The expert testified that he suffered a major heart attack whose survival rate was between 3 percent and 5 percent outside a hospital setting, and 25 percent inside a hospital setting. Roughly 75 percent to 80 percent of people do not survive the type of myocardial infarction that Fair had suffered, the expert determined.

The jury rendered a defense verdict. It found that Columbia Regional Health Center was not liable for Fair’s fatal myocardial infarction.

This report is based on information that was provided by plaintiffs and defense counsel.

—This report first appeared in VerdictSearch, an ALM publication