DONALD VARIAN - As soon as he heard the facts of this case, he knew he would be able to convey the injustice to a jury.
TUBBS v. DINSMORE
Summit County Common Pleas Court, No. CV 98 06 2216
Date of verdict: Dec 9,1999
Plaintiff's attorney: Donald S. Varian, Akron
By Syndie Eardly
The symptoms that Wayne Russell Tubbs was experiencing at the Fourth of July family party read like a laundry list of heart attack warning signs as published by the American Heart Association.
In fact, attorney Donald Varian brought American Heart Association literature to trial to read off what he called the classic signs of impending heart attacks.
"Every sign was there," Varian says, "but the cardiologist eventually said, 'Just go back to your family practice doctor."
The advice was fatal for Wayne Russell Tubbs, who died of a heart attack on July 19, having never been seen by the defendant cardiologist.
The defendant's failure to perform any tests on his patient, or even to see him in his office, led a Summit County jury to award the Tubbs family $2.5 million dollars, though it is little compensation for Linda Tubbs and her three daughters, who are left without their husband and father.
At the age of 50, the decedent had already been under cardiology care since having a heart catheterization in 1989. He had continued to see Dr. Alexander P. Ormond, his cardiologist for the ensuing seven years.
In July 4, 1996, while at a family party, the decedent began to experience difficulty in breathing and great fatigue while walking. He went to see his family doctor, complaining of burning chest pain, fatigue, inability to walk for extended periods of time and inability to go to work.
"At first, the family doctor thought it was the flu," Varian notes. The decedent had also had a previous ulcer condition, and the family doctor thought it might be related to that condition. According to Varian, Dr. Rex W. Dinsmore D.O., the family practice doctor, did not think that the problem was heart related.
As the symptoms progressed over the next two weeks, the decedent saw his family practice doctor two additional times. During this time, he was also taking an old prescription of nitroglycerin. He reported to his doctor that he had taken it and that it had not alleviated the symptoms.
"Eventually, his family told him that he had to see somebody else," Varian says. "So on July 16, 1996, he called his cardiologist, [Dr. Alexander P. Ormond Jr.] The cardiologist said, 'No, you don't have to come in, you can continue to see your family practice doctor,' even though the decedent told him the same problems-that he could not go up stairs, that he had to sleep in the chair at night, that the pain was very great in his chest and that he had shortness of breath."
The decedent returned a fourth time to his family practice doctor on July 19 at 1 p.m. That evening, he died of a heart attack resulting from three blocked arteries.
Issues At Trial
Varian explored three issues at trial, including the effectiveness of the nitroglycerin which the decedent was taking, the standard of care required by physicians and the proximate cause of the decedent's death.
The nitroglycerin which the decedent was taking was an old prescription previously provided by the cardiologist. He took the nitroglycerin thinking it would alleviate his symptoms, but it had no effect. This became a debated point at trial.
"There are two schools of thought on this," Varian says. "One is if you take nitroglycerin and it doesn't help, that must usually indicate that there's not a heart problem. That was the defense's position."
But Varian, and his expert cardiologist Dr. Carl Tomasso, came at the issue from a completely different point of view.
"Our position was if you have serious, impending heart problems, many times nitroglycerin does not help, and that's when you need to get right to the emergency room," Varian says. "Our specialist said when that occurs and you are having these other problems, he should have been sent right to the emergency room and checked out or brought into the cardiologist's office since they had an EKG machine and a stress test machine right there."
Varian notes that the use of the nitroglycerin as an acid test of whether it was a heart condition didn't even make sense in this case since the nitroglycerin itself was old and had likely lost its efficacy.
Although the doctors could not have known it without testing, the decedent was well beyond the point where nitroglycerin could have helped him, according to Varian. But what the doctors did know is that the nitroglycerin was not recently prescribed.
"All the doctors agreed that old nitro is not effective and wouldn't have done him much good," Varian recalls.
Standard Of Care
One of the most important issues at trial was the issue of standard of care.
The cardiologist's position in the case was that, since the decedent was seeing his family doctor and that doctor had diagnosed him with flu and hiatal hernia and had given him an antacid for an upset stomach, the decedent should continue to see his family practice doctor.
"At trial, his position was that those symptoms seemed reasonable for the kinds of problems he was having," Varian says.
This, according to Varian, affected the jury most deeply.
"The jury was quite taken aback that the cardiologist had treated it so cavalierly, just sending him back to his family doctor," Varian says. "They were very upset that he never had him come in to see him, even though he was his patient. They were upset that he didn't give him a stress test, didn't give him an EKG, didn't give him any medication and didn't even physically observe him."
Varian presented evidence to the jury that if the cardiologist had seen the decedent visually at the time, he would have known there was something happening.
"He would have seen that he was very white, he was sweating, he would lose his breath very quickly if he was trying to just move around the room," Varian explains.
"These things would have given a really good indication of problems with the heart."
The defense expert's position was that, since the cardiologist talked to the decedent on the phone, made the call and referred him back to his family practice doctor, he did meet the standard of care.
Varian's expert witness, also a cardiologist, indicated that the defendant cardiologist had a duty to see the patient and treat him for coronary artery disease since the decedent had a known coronary artery problem and since there was a strong presentation of cardiac symptoms.
"All our doctor was saying is that you have to bring him in and look at him and check him out, and then you have met the standard of care," Varian says. "Just do the testing and after that point, you've done what you're supposed to do."
Varian feels his cardiologist did an excellent job of presenting the case.
"He was a very fair doctor; he said what was right, and he said what was wrong," Varian says. "He did not try to overstate the case. The jurors found him very believable."
The third issue at trial was the issue of proximate cause, and Varian acknowledges that the jury was not unanimous on this issue.
"The proximate cause issue was whether or not the failure to treat by Dr. Ormond was the direct cause of [the decedent's] death, because there was an intervening three days in which he did see the family practice doctor," Varian notes.
But one fact got through to the jury and tipped the scales in favor of the plaintiff.
"What overcame that issue with the jury is that Dr. Ormond testified that he never transferred the cardiac care of this patient and that was what caused his death."
Varian said that neither Dr. Ormond nor his specialist could or would give an opinion on whether treating the decedent would have saved his life. That was an unknown because he was never tested.
"That was part of my argument," Varian notes. "If they had tested him, they would have known."
The plaintiff's doctor testified that if the decedent had come in and been tested, his life could have been saved because he could have had bypass surgery or an angioplasty.
Varian believes that the jury was also influenced by the fact that the cardiologist, who has since retired, was not board certified.
"Today he would not have been able to practice at Akron City Hospital," Varian explains. "He was sort of grandfathered in. Thirty years ago there was no board certification process."
The original gross settlement sought by Varian for his client from both defendant doctors was $1 million. On the Sunday before the start of trial, Varian settled with the family practice doctor for $340,000. The cardiologist rejected the settlement offer until the third day of trial, when he offered $200,000. The plaintiff rejected that and the jury came back with an award of $2,516,000.
Varian says the jury had plenty of numbers to work with to substantiate the award. An economist was brought in to calculate lost wages, and other considerations of pain and suffering were presented to the jury.
"Obviously, we had a very robust individual, age 50 years old, a very active father of three daughters," Varian says, noting that the decedent's wife was able to articulate well her loss to the jury.
"She was just a very, very nice person," Varian says. "She was not overly dramatic, but the jury saw the devastation that has occurred to her family."
Varian says it was the injustice of the situation that moved him from the beginning.
"You sort of get a reaction right away as a layman, and that is sort of the test I always use-that as a layman, a nonexperienced medical person, if your sense of injustice comes about right away when you've heard the facts, you can pretty well relate that to a jury," Varian explains. "Then you have to see if the doctors and medical experts support it. I was taken aback by the facts of this case right away."
And in the end, he was able to translate that sense of injustice to the jury.