Our Record of Success

Plaintiff v. Defendant Internal Medicine Physician

Mark Burden and Curtiss Schreiber successfully defended an internal medicine physician in a case involving a nursing home fall.

The plaintiff was a 56-year-old man with a history of mental illness who had been living in a nursing home since 2005. He had his first seizure in 2006, and was placed on Dilantin, an anti-seizure medication. In 2009, the defendant internal medicine physician, who was the plaintiff’s attending physician at the nursing home, took him off Dilantin and placed him on Keppra, a newer seizure medication with a more favorable side-effect profile.

The plaintiff was free of seizures for two years but began having breakthrough seizures again in 2011, some of which resulted in falls. In April 2012, he had another seizure and was placed on an increased dosage of Keppra and restarted on Dilantin. In January 2013, after no seizures had occurred for eight months, the defendant discontinued Dilantin and lowered his dosage of Keppra.

On June 29, 2013, the plaintiff fell down a flight of stairs at the nursing home, resulting in a skull fracture, traumatic brain injuries and a laceration on his face.

The plaintiff claimed the fall was caused by a seizure, and that defendant 1) should not have discontinued Dilantin in January 2013, 2) should not have lowered Keppra, particularly since he discontinued Dilantin and 3) should have labeled the plaintiff as a fall risk.

DBMS argued that because Dilantin has serious side effects – and because the plaintiff was on 12 other medications, including psychotropics – it was reasonable for the defendant to try to move him back to a medication with fewer side effects that had previously kept him seizure-free. The firm also argued that there was no reason to restrict the plaintiff’s access to the stairs, as people with seizure disorder generally live normal lives in the community.

The plaintiff asked for $2.7 million. The jury returned a not guilty verdict after an hour of deliberation.