LymeNet Law Pages
Case History Document

Koester v. State
Entered By: Ira M Maurer/LymeNetDate Created: 10/4/98
Document Type: Case Summary
Title: Hanania v Abemayor, et al
The plaintiff resided in Nassau county, New York and made a trip to a park in Westchester County, New York in 5/94. Within two weeks he started having low grade fevers that cycled up and down, developed a swollen left axillary lymph node and developed a small rash on his chest between his arm pit and left breast. The rash was 3 centimeters in diameter, annular (circular), pruritic (itchy), indurated (firm), erythematous (reddened), and had a central punctate (puncture) wound consistent with an insect bite.
On June 3, 1994 Mr. Hanania went to his medical group, C.H.P. for an "urgent care" visit and was seen by a registered physician's assistant, Jeanette Kobel-Perez. The R.P.A. diagnosed cellulitis (an infection of the skin) and prescribed an antibiotic called Duricef. Mr. Hanania started the medication and observed that the rash had doubled in size by the next day. On June 4, 1994 Mr. Hanania went back to his medical group for another urgent care visit and this time was seen by Dr. Violet Abemayor. Dr. Abemayor was not given the patient's chart and didn't see the previous day's entry by the R.P.A. that there was a central punctate in the rash which was measured as 3 centimeters in diameter. However, Dr. Abemayor was told by Mr. Hanania that the rash had expanded and the doctor suspected an insect bite even though the central punctate wound was now gone. Dr. Abemayor also diagnosed cellulitis and told Mr. Hanania to stay on the Duricef and seek medical attention if he didn't improve or worsened.
Mr. Hanania's condition improved over the next several days and his rash faded but didn't completely disappear. On approximately June 24, 1994, Mr. Hanania started to experience headaches on top of his head and in the area of his temple. He also started to experience pain in his neck. Mr. Hanania returned to his medical group on June 30, 1994 and was seen by Dr. Christina Jankowski who diagnosed a neck sprain (in the absence of any history of injury) which she thought was responsible for the neck and head complaints. Over the next several days, Mr. Hanania lost his sense of taste and smell and developed a facial paralysis. He was subsequently diagnosed as having Lyme disease with Lyme Meningitis. Serologic testing of blood and CSF confirmed the diagnosis.
A medical malpractice lawsuit was commenced by Mr. Hanania against Jeanette Kobel-Perez, R.P.A., Dr. Violet Abemayor, Dr. Christina Jankowski as well as against the now defunct medical group, C.H.P. The Complaint filed against all four defendants alleged malpractice in failing to diagnose and treat Mr. Hanania for Lyme disease. The plaintiff's direct case included the testimony of Mr. Hanania, Dr. Raymond Dattwyler, Marian Rissenberg, Ph.D., a computer expert, Patrick Cline and the individual defendants.
Mr. Hanania testified that he told the R.P.A. and Dr. Abemayor that he had been in a park in Westchester County, New York prior to his development of his rash and other symptoms and that he was concerned about Lyme disease. The R.P.A. and Dr. Abemayor denied being given this information but indicated that because Mr. Hanania lived in an endemic area for infected deer ticks that they considered Lyme disease any way in their differential diagnosis. Mr. Hanania also testified that he conveyed concern on 6/4/94 to Dr. Abemayor about a possible abscess (pocket of pus) and a surgeon in the medical group examined the area on 6/4/94, attempted to aspirate pus without success and ruled out an abscess at that time. Mr. Hanania testified that prior to contracting Lyme disease, he had started developing a computer program for use in individual and group medical practices and that his illness had delayed completion and marketing of the software by over two years.
Dr. Raymond Dattwyler testified as both a treating physician and Lyme disease expert. Dr. Dattwyler expressed the opinion that when Mr. Hanania presented at C.H.P. with an erythema migrans rash it was a deviation from accepted standards of medical care not to diagnose and treat him for Lyme disease. Dr. Dattwyler stated that at a minimum, the plaintiff should have been treated for cellulitis and Lyme disease at the same time to cover the bases. On cross-examination, Dr. Dattwyler acknowledged that since the plaintiff's rash was only 3 centimeters in diameter on 6/3/94, that by definition, the rash couldn't be considered a Lyme rash because a Lyme rash must be atleast 5 centimeters in diameter. Based upon this testimony, the claim against Jeanette Kobel-Perez was dismissed by the Court. Dr. Dattwyler also testified that the plaintiff didn't appear to be as sharp cognitively as he expected based upon the plaintiff's educational level (Masters in Computer Science) and that the apparent diminished cognitive function appeared to be a permanent condition.
Marian Rissenberg, Ph.D. testified that she performed a complete neuro-psychological evaluation of Mr. Hanania and that he had significant cognitive deficits which were caused by his Lyme disease with Lyme Meningitis. She further testified that the cognitive deficits were probably permanent.
Patrick Cline testified that: he was involved in computer programming and software sales for approximately 20 years; he evaluated the plaintiff's software program and compared it to other programs presently available for purchase; he believed the program was a good program and marketable once completed. Patrick Cline provided his estimates regarding the amount of sales, in dollars, he expected for the program in the first and second year it is marketed.
Dr. Violet Abemayor testified that Mr. Hanania's clinical picture was consistent with a cellulitis condition and that his rash was atypical for Lyme disease because it was pruritic and indurated. Dr. Abemayor concluded that Mr. Hanania had a cellulitis condition and that he should remain on Duricef.
The defense consisted of the testimony of Dr. Block (neurology), Dr. John Halperin (neurology), Dr. Robert Schoen (rheumatology), Dr. Bruce Farber (infectious diseases), Dr. O'Connor (primary care) and Bruce Martin (computer expert).
Dr. Block examined the plaintiff for the defendant for litigation purposes and found his neurologic exam completely normal, notwithstanding Mr. Hanania's ongoing complaints of periodic head pressure, fatigue, numbness and pain. Dr. Block also concluded there was no evidence of cognitive deficits.
Dr. Halperin examined the plaintiff in the fall of 1994 for a second opinion regarding Mr. Hanania's ongoing complaints of head pressure, pain and numbness. Dr. Halperin was concerned about the ongoing head pressure but felt Mr. Hanania was making a good recovery from his Lyme meningitis.
Dr. Schoen reviewed Mr. Hanania's medical records (without examining the plaintiff) at the request of the defense and expressed the opinion that Mr. Hanania had been cured of his Lyme disease and had no ongoing Lyme related problems at the present time. Dr. Schoen acknowledged his authorship of an article published in 1994 in which Dr. Schoen stated in substance that you have to have a high index of suspicion of Lyme disease when evaluating a patient who lives in a geographic area that is endemic for infected deer ticks and the patient comes in with a rash (even an atypical Lyme rash) during the spring or summer months. In spite of this, Dr. Schoen testified that he didn't think it was malpractice to diagnose and treat cellulitis and not diagnose and treat Lyme disease at the same time. Dr. Schoen testified that it was good medical judgment to just treat Mr. Hanania for Cellultis.
Dr. Farber's and Dr. O'Connor's testimony was consistent with the testimony of Dr. Schoen. Both doctors expressed the opinion that it was sound medical judgment to diagnose and treat Cellulitis and not diagnose and treat Lyme disease. Dr. Farber stated that in most cases it is better not to treat a patient with two seperate antibiotics at the same time to cover two possible conditions when you aren't sure which condition is the correct diagnosis.
The claim against Dr. Jankowski was dismissed before the case was given to the jury because there was no expert testimony that the failure to diagnose and treat Mr. Hanania on 6/30/94 for Lyme disease caused any damage. Specifically, there was no expert testimony that had Mr. Hanania been given an appropriate antibiotic on 6/30/94 to treat Lyme disease, that it more probably than not would have prevented him from developing the multiple sensory loss and facial paralysis.
The jury decided this case in favor of the remaining defendant, Dr. Abemayor and her employer, the C.H.P. medical group. In successfully defending this lawsuit, Dr. Abemayor and C.H.P. did not have to prove that Dr. Abemayor had not been mistaken in her diagnosis on 6/4/94. The defense only had to convince the jury that it was a reasonable exercise of medical judgment on 6/4/94 to just diagnose and treat the plaintiff for cellulitis without diagnosing and treating Lyme disease at the same time.
The success of the defense in this case, in spite of the testimony of Dr. Schoen regarding when a doctor should have a high index of suspicion of Lyme disease, serves to underscore how difficult it is to win a medical malpractice case.

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