The decision of First Department, in King v. St. Barnabas Hospital., 2011 WL 2567782 (June 30, 2011), a medical malpractice case, interestingly found that the evidence from which a jury could find that the proximate cause of the death of a heart attack victim came not from expert testimony on behalf of the plaintiff but from [t]he very fact that advanced life support protocols exist for patients in an asystolic (no electrical activity in the heart) state . According to the court, the existence of advanced life support protocols for patients in an asystolic state in and of themselves means that adherence to the protocols afford a chance of reviving the patient, notwithstanding the grave nature of the condition. It necessarily follows that failure to follow the protocols reduces the chances for reviving the patient. The court noted that New York courts have implicitly recognized liability premised on negligent resuscitation efforts. The plaintiffs expert failed to offer any statistics or studies concerning the survival rates of patients in an aystolic state, or whether the administration of epinephrine or atropine during cardiac arrest increases the patient’s chances of survival offer statistics concerning the survival rates of patients in an asystolic state, and could not predict whether plaintiffs decedent would have been saved. In King, the plaintiffs decedent, a 38-year old correction officer at Rikers Island, was off-duty and playing a basketball game at the correctional facility’s gym when he suffered cardiac arrest and collapsed during the game. Plaintiffs expert testified that the defendants had departed from good and accepted medical practice in this emergency situation by defibrillating him because doing so to a patient in an aystolic condition damages the heart muscle, thereby diminishing the chances of survival. Further departures were failing to promptly set up an IV and to administer epinephrine and atropine, as per resuscitation protocols. Plaintiff established an undisputed delay on the order of 6 to 10 minutes in administering epinephrine and 18 minutes in administering atropine. The decision of lower court, which was reversed on appeal, disssed the estates lawsuit on the premise that the decedent, found in a life-threatening, nonresponsive state, was in some sense destined to die, and therefore, that any departures from the resuscitation protocols by the first responders were of no import as to whether or not the decedent survived his heart attack. In other words, the lower court found that even if the defendants were negligent, their negligence could not, as a matter of law, have been a substantial cause of death. But the First Department disagreed with this logic, observing that [b]y definition, victims requiring resuscitation are found in grave condition from which the likelihood of recovery may be negligible. These circumstances, however, cannot excuse first responders from all responsibility when they fail to abide by professional standards. Perhaps most useful for plaintiffs attorneys is language in the King decision to the effect that proof that is ambivalent as to whether the deceased would have died regardless of the malpractice is sufficient to raise a pure factual issue that can only be resolved by a jury determination of whether the malpractice proximately deprived the deceased of that substantial possibility. The court held that the evidence in this case supports the inference that by shocking decedent when he was in an asystolic condition and by failing to timely administer the appropriate cardiac medications, defendants diminished decedent’s chances of recovery and may have further damaged decedent’s heart.
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