LymeNet Law Pages
Case History Document

Foley v. Klein, et al
Entered By: Ira M Maurer/LymeNetDate Created: 10/23/97
Document Type: Case Summary
Title: Summary of Foley v. Klein, et al

In 1992, Elizabeth Foley was employed as an elementary school teacher. Mrs. Foley and her husband resided in northern Westchester County, New York. In late July, 1992 Mrs. Foley was admitted to a local hospital for treatment of severe abdominal cramping associated with diarrhea, abnormally high body temperature, nausea, weakness, fatigue, loss of appetite, chills and shakes with admission diagnoses of gastroenteritis and dehydration. While in the hospital, Mrs. Foley developed a rash behind her left knee which was observed and noted in the hospital chart..

A local gastroenteroligist was brought in as a consultant and a battery of tests were ordered. The results of these tests failed to disclose any information that shed a light on the cause of Mrs. Foley's illness. Additional tests were ordered, including a Lyme Disease test. Mrs. Foley was treated with an antibiotic not commonly used for treatment of Lyme Disease during her hospitalization and had improved dramatically by the time she was discharged.

Subsequent to her discharge, the Lyme test came back reported as positive. This information was reported to both the admitting doctor (Mrs. Foley's primary treating physician who was an internist and infectious disease specialist) and the gastroenteroligist who ordered the test. The doctors discussed the results and neither of them advised Mrs. Foley of the positive Lyme test. The primary treating physician testified at his deposition before trial that he had completely discounted the positive Lyme test for several reasons which included the alleged fact that Mrs. Foley had a positive Lyme test approximately two years before and the doctor was of the belief that once you develop antibodies to B. burgdorferi, your test will remain falsely positive. The gastroenterologist testified before trial that he didn't advise Mrs. Foley of the positive Lyme test because he was just the consulting physician and it was the primary physician's responsibility to advise the patient. The gastroenterologist also testified that if he was the primary treating physician, he would have advised Mrs. Foley of the result.

Several weeks later, Mrs. Foley developed neurologic complaints which were not connected to Mrs. Foley's Lyme Disease by her treating physician and were believed to be caused by a problem in her neck which may have resulted from Mrs. Foley moving things around in her classroom in preparation for the first day of school. Shortly thereafter, Mrs. Foley developed a facial palsy and was eventually readmitted to the hospital with a diagnosis of Lyme Disease with Bell's Palsy for which she was given an intravenous antibiotic appropriate for treatment of Lyme Disease. The primary treating physician also ended up referring Mrs. Foley to Dr. Kenneth Liegner for futher evaluation and treatment which continued over a period of several years.

In the lawsuit commenced against the primary treating physician and his partner, the consulting gastroenterologist and the hospital, Mrs. Foley and her husband claimed, among other things, that it was malpractice for the defendants not to:

Of interest, the primary treating physician considered himself to be an expert on the subject of Lyme Disease. He testified before trial that the previous positive Lyme test was a border line positive result obtained using a kit in his own office and wasn't verified by sending out Mrs. Foley's serum to a reputable, outside laboratory.

Furthermore, the primary treating physician's conclusion that Mrs. Foley's 8/92 positive Lyme test was a false positive was based upon what I believe was a misunderstanding of the medical literature which has suggested that once a patient develops antibodies to B. burgdorferi, they may continue to have antibodies to the organism present in their serum for an extended period of time.

As a result of the Lyme Disease condition with Central Nervous System involvment, Mrs. Foley suffered permanent injuries which included, but were not limited to: cognitive deficits; abnormal re-innervation (healing of the nerve) of the face due to the damage caused by the Lyme Disease infection to Mrs. Foley's cranial nerves; and, weakness of her right arm and hand.

This case was settled for an undisclosed amount which was paid solely by the primary treating physician who settled the case "as a business decision with no admission of liability, negligence or carelessness, deviation from reasonable care or departure from accepted procedures rendered to" Mrs. Foley (language, which was required by the defendant, taken from the General Release signed by the Foleys ). Neither the gastroenterologist nor the hospital contributed to the settlement funds paid to the Foley's.

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