August 22, 2013
Gerald Toner and Brittany Asher successfully defended a pediatric pulmonologist against allegations of medical malpractice in Jefferson Circuit Court. Plaintiff alleged that the defendant physician negligently failed to diagnose a laryngeal cyst in an infant, instead misdiagnosing his respiratory distress as resulting solely from laryngomalacia, a condition in which the immature cartilage of the upper larynx collapses inward during inhalation, causing airway obstruction. Plaintiff further alleged that the defendant physician, having diagnosed the infant with laryngomalacia, negligently referred the patient to a pediatric surgeon (and co-defendant at trial), which resulted in the placement of a tracheostomy. Plaintiff contended that at the time of treatment, tracheostomy was an outdated treatment modality for children with laryngomalacia, and that supraglottoplasty was the gold standard. Plaintiff alleged that defendant’s negligence resulted in the infant’s death two months later as the result of a plugged tracheostomy tube. Toner and Asher countered by establishing that the physician’s diagnosis of laryngomalacia was accurate and supported by the patient’s clinical history and presentation as well as imaging studies. To the contrary, there was no support in the medical records for the presence of a laryngeal cyst at the time of treatment. Toner and Asher further established through expert testimony that tracheostomy was a reasonable treatment for the infant’s laryngomalacia, and that supraglottoplasty would have been both risky and potentially ineffective. The defense further demonstrated that plugging is a known complication of tracheostomy, and that the infant’s caregivers were thoroughly trained on how to respond to a plugged tracheostomy tube. Though those procedures were unfortunately not followed when the infant’s tracheostomy tube plugged, this was not the result of any negligence on behalf of the defendant physician. The jury ultimately agreed with the defense that all defendants acted appropriately and entered a defense verdict finding no fault against them.