On August 16, 2007, Rose Kij, then 81 years old, had a sudden attack of left-sided weakness and was taken by ambulance from her home in Buffalo to Millard Fillmore Gates Hospital. She was admitted with a diagnosis of transient ischemic attack (similar to a stroke, but usually lasting only a few minutes and causing no permanent damage).

After a week in the hospital, during which time Ms. Kij was given a daily dose of 80 milligrams of Simvastatin (a cholesterol lowering medication), her condition appeared to improve and she was transferred to a rehabilitation facility where she was able to walk and continued to improve.

The Simvastatin dosage prescribed at the hospital and continued during rehabilitation, was, inexplicably, four times what she’d been taking in the past to control her cholesterol and it ultimately caused her to succumb to rhabdomyolysis (a  dramatic, rapid, very progressive destruction and breakdown of muscle) that ruined her kidney function and caused her death on October 10, 2007.

In the ensuing medical malpractice wrongful death a lawsuit, the Erie County jury determined that the initial hospital was negligent in the care and treatment rendered to the decedent (in quadrupling her Simvastatin without explanation) and they awarded pre-death pain and suffering damages in the sum of $1,000,000 (five weeks).

The verdict as to both liability and damages has been affirmed in Mancuso v. Kaleida Health (4th Dept. 2019).

As indicated in the appellate court’s decision, the decedent suffered from the following during the five week period from her initial hospital admission until her death:

  • muscle soreness and progressive weakness, to the point where she could not lift her arms, feed herself, walk or keep her head up
  • bladder incontinence
  • kidney failure, resulting in dialysis treatment
  • awareness of impending death

Inside Information:

  • Defendant’s brief on appeal conceded that as much as $500,000 wold be reasonable for pain and suffering damages in this case.
  • The physician who signed the order prescribing 80 milligrams of Simvastatin was never called as a witness for the defense; instead, the hospital relied upon an expert who opined that it was not negligence to order high dose statin therapy for Ms. Kij because she was at risk for another stroke and the development of rhabdomyolysis was very unlikely.