Faulty Blood Test Results Do Not Make Doctor Liable For Patient’s ER Bill

Topiel v Caremount Med., P.C., 2020 NY Slip Op 50151(U) (Appellate Term, Second Department 2020)

Your doctor takes your blood for testing. When the results come back he tells you to go to an Emergency Room because you have a potentially fatal condition. But it turns out the blood test result was wrong. Is the doctor liable for your emergency room bill? That was the situation here — in an appeal from the Justice Court of Mount Kisco, New York to the Appellate Term.

It’s quite unusual for a plaintiff to bring a medical malpractice lawsuit in Small Claims Court, but this plaintiff did — pro se, at that. He sued for $2,244.05, the amount charged him by Northern Westchester Hospital for emergency room services. At his non-jury trial, plaintiff testified that, at an annual physical at defendant medical center, he had received erroneous results from a potassium blood test he had taken there. He returned to defendant’s medical center later that day for a retest of his potassium level and for an EKG, which checks for signs of heart disease. Based upon that EKG and the first blood test, but before the second test’s results were available, a doctor at defendant’s medical center directed plaintiff to go to a hospital emergency room, asserting that the EKG results were “severe” and that his life was in danger.

At the hospital, plaintiff’s retest showed that his potassium levels were normal, as was his EKG. Plaintiff later learned at the hospital that his earlier high potassium levels were a result of lab error and that the finding that the EKG was “severe” was in error. Plaintiff stated that had he known about a possible lab error, he would not have gone to the hospital and is seeking reimbursement of the portion of his hospital bill which was not covered by insurance. Plaintiff did not provide an expert witness to support his cause of action.

Defendant’s expert witness testified that an elevated potassium level is a common lab error due to the turbulence of the red blood cells and that it was standard practice to have plaintiff return for a second potassium test and, under the circumstances, an EKG, which is what was ordered. Defendant’s expert also testified that given the high level of potassium from plaintiff’s first test and the changes between plaintiff’s 2012 EKG and his current EKG, defendant exercised reasonable judgment in directing plaintiff to go to the emergency room to be monitored immediately.

Following the trial, a judgment was entered in favor of plaintiff in the principal sum of $2,244.05.

The Appellate Term reversed. “In a small claims action, our review is limited to a determination of whether substantial justice has been done between the parties according to the rules and principles of substantive law.”

Generally, in a malpractice action, expert testimony is necessary to establish the applicable standard of care, as well as a deviation from such standard, which resulted in injury, unless the matter is one within the experience and observation of the average layperson. Here, plaintiff did not provide an expert witness, but relied on his own testimony. Plaintiff, thus, failed to establish that the cautious route taken by defendant constituted negligence or malpractice. In any event, defendant’s expert showed that defendant had been faced with a patient with a lab test result of an elevated potassium level in his blood and a change in his EKG results, which were possible symptoms of a life threatening condition. “Consequently, the judgment in favor of plaintiff did not render substantial justice between the parties according to the rules and principles of substantive law.” The judgment was reversed and the action dismissed.

One judge dissented, with the opinion that this was an action for negligence in the handling of the blood test and in the conducting of the EKG, not medical malpractice, and that plaintiff had established a case of negligence on both counts.

Comment: I have to agree with the dissenting judge. Plaintiff established a case for negligence. There is case law holding medical laboratories liable for negligence in misreading or mishandling blood tests. Though there is less than $2,500 involved here, it would make an interesting appeal to the Appellate Division.