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February 17, 2004.

Victor Mazurkiewicz and Mary Mazurkiewicz Plaintiffs,
Doylestown Hospital and Daniel Nesi, M.D. Associates, P.C. Defendants

The opinion of the court was delivered by: ANITA BRODY, District Judge


On October 25, 2001, plaintiffs Victor Mazurkiewicz ("Mazurkiewicz") and his wife Mary Mazurkiewicz filed this action against defendant Doylestown Hospital ("Doylestown") and several individual doctors affiliated with the hospital. Plaintiffs alleged state negligence claims and violations of the Emergency Medical Treatment and Active Labor Act ("EMTALA"), 42 U.S.C. § 1395dd(b). On July 18, 2002, I denied Doylestown's motion to dismiss.*fn1 Doylestown has now moved for summary judgment on plaintiffs' claim under EMTALA.*fn2 The court has subject matter Page 2 jurisdiction over this case based on the existence of a federal question.

Factual Background

  On February 19, 2001, Mazurkiewicz arrived at the Emergency Department of Doylestown Hospital.*fn3 Dr. Harold Feiler, an emergency room physician, examined Mazurkiewicz and determined that his symptoms of sore throat, sinus pressure, swollen glands, achiness, painful swallowing and trouble breathing were indicative of right peritonsilar abscess. (Pls.' Resp. Def.'s Mot. Summ. J. Ex. B.) Dr. Feiler called in Dr. Douglas Nadel, an ear, nose and throat specialist. Dr. Nadel ordered a CT scan, which indicated "severe pharyngitis, possible abscess." Dr. Nadel interpreted this result as "negative for a definite abscess." (Nadel Dep. at 82.) In addition to the CT scan, Dr. Nadel performed a fine needle aspiration, which he described as the "gold standard for ruling in or ruling out an abscess." (Id. at 56.) Dr. Nadel performed the aspiration partly for diagnostic purposes and partly "for treatment and to obtain a bacteria for culture if there is an abscess." (Id.) Dr. Nadel was unable to aspirate any fluid for a culture. Dr. Nadel considered the aspiration "as conclusive as clinically possible" in ruling out the possibility that Mazurkiewicz had an abscess. (Id. at 83.)

  Despite his position that his patient did not have an abscess, Dr. Nadel's physician orders indicate Mazurkiewicz's diagnosis as "Parapharyugeal Abscess." (Pls.' Resp. Def.'s Mot. Summ. J. Ex. C.) Dr. Nadel maintains, however, that Mazurkiewicz did not have an abscess on February 19, 2001, nor at any point while he was hospitalized at Doylestown. Dr. Nadel explained in his deposition that he listed parapharyugeal abscess as the diagnosis "because [he] wanted Page 3 [Mazurkiewicz] hospitalized out of [Dr. Nadel's] concern for [Mazurkiewicz] developing an abscess. But again, at no point during his hospitalization did he have a definite abscess." (Nadel Dep. at 90.)

  Dr. Nadel testified that a neck abscess is a potentially life-threatening condition, and that he did not even consider discharging Mazurkiewicz from the Emergency Department on the night he was admitted to the hospital. (Id. at 17, 136.) Because Dr. Nadel admitted Mazurkiewicz to Doylestown Hospital for "airway observation," Mazurkiewicz was put in the Intensive Care Unit with continuous pulse oximetry and with a tracheotomy tray kept at his bedside. (Id. at 68.) Dr. Nadel discussed the pros and cons of performing a tracheostomy with Mazurkiewicz, but Dr. Nadel did not perform a tracheostomy. (Mazurkiewicz Dep. at 54, Nadel Dep. at 66.)

  Mazurkiewicz remained hospitalized for five days until his release on February 24, 2001. During this time he received IV antibiotics and an infectious disease specialist was consulted. (Nadel Dep. at 81, 89.) Dr. Nadel's notes and his deposition testimony suggest that Mazurkiewicz made steady improvement throughout his admission.

  On February 20, Dr. Nadel noted "less odynophagia"*fn4 but that his patient's neck was "still tender." Dr. Nadel also noted "parapharyngeal cellulitis/early abscess" on February 20th, and wrote that he would consider re-aspirating Mazurkiewicz on the following day if his white blood cell count remained elevated. (Id. at 109.)

  On February 21, Dr. Nadel noted that his patient had "much less odynophagia" and that he found Mazurkiewicz's condition "to be somewhat improved." (Pls.' Resp. Def.'s Mot. Summ. J. Ex. B, Nadel Dep. at 119.) In response to a question about whether Dr. Nadel thought on Page 4 February 21 that Mazurkiewicz was developing an abscess, the doctor testified, "It [was] still a possibility, but his overall clinical picture was beginning to improve," and that,"[i]f he had shown any signs of worsening, I would have repeated his aspiration." (Nadel Dep. at 121, 125.)

  On February 22, Dr. Nadel observed "significantly improved odynophagia" and "much less hoarseness." Dr. Nadel also noted that his patient was "clinically much improved [after] 2 1/2 days of Timentin (IV antibiotics)." At that point, Dr. Nadel's plan was to continue the Timentin and if there was continued improvement the next day, he would discharge Mazurkiewicz. (Pls.' Resp. Def.'s Mot. Summ. J. Ex. B.)

  On February 23, Dr. Nadel noted "[c]ontinued decrease in right pharyngeal bulge." (Nadel Dep. at 128.) Dr. Nadel then made the decision to continue the Tementin one more day and to discharge his patient if there was continued clinical improvement. (Id. at 129.)

  On February 24 at 9:30 a.m. Dr. Nadel noted "continued decrease in odynophagia but now with some new findings." Dr. Nadel believed that these new findings (ear pain, right facial pain, nasal congestion, and green nasal discharge) were symptoms of an acute sinus infection. (Id. at 130.) Mazurkiewicz was discharged from Doylestown on February 24, 2001 at 12:45 p.m. with instructions to contact Dr. Nadel if his symptoms worsened. (Id. at 134.)

  Although Dr. Nadel consistently noted in Mazurkiewicz's patient records that he would re-aspirate his patient if necessary, he did not attempt to aspirate Mazurkiewicz again after the initial attempt on February 19, 2001. Dr. Nadel also did not repeat his examination of Mazurkiewicz with a laryngoscope, nor did he order another CT scan. (Pls.' Resp. Def.'s Mot. Summ. J. at 3.) Dr. Nadel testified that he "did not think at any time that it was appropriate to obtain" another CT scan. (Nadel Dep. 75.) Page 5

  According to Mazurkiewicz, he was in pain and had tenderness on the right side of his neck throughout his admission until his discharge, and he complained of increased discomfort on the right side of his neck and throat on the ...

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