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Failure to Diagnose Thiamine Deficiency/Wernicke’s Encephalopathy

CATEGORIES: Other Cases CASE LOCATION: Mifflin Co., PA. CLASSIFICATION: Substantial Recoveries

The Fulton Case

In this case, a 39 year old woman suffered from a thiamine deficiency following bariatric surgery which led to Wernicke’s encephalopathy (a permanent brain injury). This was due to the Defendant doctors never performing a full or proper differential diagnosis on their patient. In fact, the cause that went undiagnosed - a thiamine deficiency - is a known complication from the exact type of surgery that the patient had just weeks earlier. Despite that, and despite numerous signs and symptoms of a thiamine deficiency, every doctor in this case ultimately admitted that they never did anything to rule out or treat a thiamine deficiency as the potential cause. Nonetheless, every Defendant denied liability, and denied any responsibility for their actions.


Because there is very little thiamine (vitamin B-1) stored in the body, thiamine depletion can occur quickly, within 14 days. A severe thiamine deficiency can result in potentially serious complications involving the nervous system, brain, muscles, heart, and gastrointestinal system. Thus, it must be identified and treated immediately.

To that end, thiamine deficiencies are caused by malnutrition where the body isn’t absorbing enough vitamin B-1. If a patient is unable to eat a regular diet to begin with, can only hold down liquids due to being nauseas, and has continued vomiting, gagging and/or sinus drainage, the body can simply be unable to absorb enough thiamine.

Doctors must give thiamine supplements immediately after a thiamine deficiency is even suspected. Depending on the severity, this can be done orally by pill, through shots into the muscle, or intravenously. Due to the dangerous ramifications (permanent brain damage) and zero risk in treating (you can’t “overdose” on thiamine), doctors must never wait until the suspected deficiency is confirmed. Again, treatment must occur immediately after suspicion.

The signs and symptoms of a thiamine deficiency include an unsteady gate, vision problems (notably nystagmus which is involuntary eye movement), hearing problems, swelling, tingling, or a numbness sensation in the hands and feet, and fatigue. Patients rarely have all of these signs; however, since its known to occur following gastric bypass surgery, any combination of the signs and symptoms on a patient that recently had this surgery should immediately place a thiamine deficiency not only on a doctor’s differential diagnosis list, but immediately at the top to be ruled out or treated. That’s because if left untreated, a thiamine deficiency can eventually result in brain damage due to lesions it causes on the brain. This becomes evident when the patient starts becoming confused or has an altered mental status. That form of brain damage is called Wernicke’s encephalopathy. The classic triad of Wernicke’s encephalopathy is vision problems, an unsteady gait, and confusion.

Everyone in this case agreed, even the Defendant physicians did in their depositions, that the earlier a thiamine deficiency/Wernicke’s encephalopathy is diagnosed and treated, the better chance there is of reversing its effects. If left untreated, even though some symptoms may improve over time once treatment is started, memory impairment and cognitive deficits are typically permanent (i.e. high doses of thiamine can improve muscle coordination and confusion, but rarely improves memory loss).

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The patient had gastric bypass surgery at Defendant Medical Center (“Medical Center”) on May 28. It was performed by the Defendant bariatric surgeon (the “Surgeon”) employed by the Medical Center. On discharge, the Surgeon instructed the patient to call his office to let him know of any problems she was having.

The first 4 weeks following surgery, which included a post-op checkup, went well. However, during the next 3 weeks, starting on June 29, the Surgeon’s office received phone call after phone call from its patient. In fact, as documented in the records, the Surgeon and his office were aware that their patient became nauseous, was “worried something was wrong”, could not eat, could only hold down Gatorade, was dizzy, could not get protein in her diet, could not follow her diet as required, was experiencing continued sinus drainage, was experiencing continued gagging and dry heaving, “still could not eat”, etc. Nothing was done.

Ultimately, as noted in the Medical Center’s records, this culminated in a phone call to them on July 20 which documented that the patient was dizzy, had high blood pressure, had trouble seeing, etc. The patient’s father, who called the Medical Center, did as instructed and immediately took his daughter to her local Defendant Hospital (the “Hospital”)(the patient lives in 15 minutes from the Hospital as opposed to 3 hours from Medical Center.

At the Hospital, the patient was admitted and kept for 3 nights. The medical records from this admission document the following symptoms: an unsteady gait, nystagmus, blurred vision, double vision (diplopia), dizzy, weak, hearing problems, numbness in both hands, “can’t focus”, hard time seeing, some vomiting, high fall risk, nausea off and on, hot and sweaty, dry heaves, and bringing up phlegm.

During this admission, the Defendant internal medicine doctor (the “Hospitalist”), was in charge of her care. The Defendant neurologist (“Neurologist”) and the Defendant ophthalmologist (the “Ophthalmologist”) also examined the patient. Although a thiamine test was performed which came back 2 days after discharge showing a thiamine deficiency, no doctor even suspected a thiamine deficiency (although the Ophthalmologist did think the patient’s problems were caused by a neurological disorder discussed in more detail below). Nonetheless, because the doctors never talked with one another, the patient was discharged without any plausible explanation for her symptoms or ever even listing a thiamine deficiency on their differential diagnosis.

A few days later, on July 26, the patient’s family noticed that she was very confused, staring into space, not making any sense, and had serious vision problems. The family called the Medical Center who instructed them to take the patient back to the Hospital’s ER. There, she was treated by the Defendant emergency room doctor (“ER Doctor”). In those records, it’s documented that the patient recently had gastric bypass surgery, was confused, had vision problems, had an unsteady gait, etc. The patient was ultimately discharged after 7 hours with no diagnosis.

Later that same night, following discharge, the patient’s husband drove her to the Medical Center where she was admitted. There, immediately upon suspecting a thiamine deficiency, the doctors gave thiamine supplements. Testing later confirmed a thiamine deficiency. The patient was ultimately diagnosed with acute non-alcoholic Wernicke’s encephalopathy caused by a thiamine deficiency. Brain damage was confirmed on an MRI.

After discharge, the patient was required to have 24-hour supervision, physical and occupational therapy, and to use a walker to ambulate. Due to continuing symptoms, she was eventually seen by a neurologist at a larger tertiary care hospital in Pittsburgh and admitted. Upon discharge, the patient stayed with her mom and continued to require around-the-clock care. Since then, the patient continued to treat with a neurologist, and also a neuro-ophthalmologist due to continued problems with her vision and balance. Although some of her symptoms improved with time, she continues to suffer from a permanent cognitive brain injury and vision problems secondary to Wernicke’s encephalopathy.

The patient was 39 at the time of her injury. She was/is married. She has three kids.

We initially only sued a few parties; however, in an odd move, one of the Defense Lawyers, essentially showing her hand too early and before the statute of limitations expired, told us that she would likely be blaming 3 different doctors who had not been sued. As a result, we added them as named Defendants to prohibit the Defense Lawyer from blaming an “empty chair”.



Prior to having gastric bypass surgery, a patient is required to undergo months and months of pre-op testing, exams, attempts at natural weight loss, psychological evaluations, they’re required to keep detailed logs of their diet, etc. If a patient is noncompliant in any way with any requirement, the patient is not approved for surgery. Here, no one could dispute, although they tried, that the patient was extremely compliant with every aspect of the lengthy and arduous process for approval.

On May 31, the Surgeon performed the gastric bypass surgery at the Medical Center. The surgery itself was uneventful and went as planned. The hospital stay was 2 nights. On discharge, the Surgeon placed the patient on a restricted “stage 1” diet. The Surgeon also instructed the patient to call his office with any problems she had. Specially, the Surgeon advised the patient to contact his Nurse Coordinators – “Nurse A” or “Nurse B”.

Starting on June 29, for 3 weeks, the Surgeon’s office received phone call after call from its patient. In fact, as documented in the records, the Surgeon and his office were aware that their patient became nauseous, was “worried something was wrong”, could not eat, could only hold down Gatorade, was dizzy, could not get protein in her diet, could not follow her diet as required, had continuous sinus drainage, was experiencing continued episodes of gagging and dry heaving, “still could not eat”, etc. Nothing was done.

There was no dispute that the Surgeon’s office never considered a nutritional or thiamine deficiency on their differential and/or ordered any tests to check for one. In fact, the Surgeon chose to not get involved in any way. He chose not to schedule any appointments to see his patient. He chose not to order any lab work or thiamine tests. He chose to never even try and talk to his patient. Also, according to the Hospitalist (see below), the Surgeon’s office requested the Hospitalist to order thiamine testing during the Hospital admission; however, the Surgeon never followed up and/or requested that thiamine supplements be provided.

The Surgeon’s defense was essentially fourfold. First, he claimed that he had no reason to suspect a thiamine deficiency because the patient’s complaints were non-specific and routine for post-op patients. Second, he claimed that the patient was noncompliant for not driving 2 hours to be seen at the Medical Center after each phone call – even though his first defense is the symptoms were routine and nothing to be worried about and it’s clear from the testimony and records themselves that the patient was never told to go to the Medical Center. Third, he claimed that he wasn’t aware of each phone call from the patient. Fourth, he claimed that he had no reason to know that his patient was admitted to the Hospital – despite his office faxing records to the Hospital, despite him having access to records indicating that his patient was admitted to the Hospital with blurred vision, nystagmus, dizzy, etc., and despite the Hospitalist’s testimony that the Surgeon’s office requested thiamine testing to be performed during that admission.

Interestingly enough,” Nurse A”, the nurse from the Surgeon’s office who the patient was to told to call and who documented several of the phone calls, contradicted the Surgeon’s defenses and testified in her deposition that:

Even though she was the nurse that was in charge of taking phone calls from bariatric patients following surgery, and one of the 2 nurses that patients were specifically told to call, she is not familiar with signs or symptoms of a nutritional deficiency or a thiamine deficiency; although she was aware that a thiamine deficiency was a known risk for post-op bariatric patients. She would rely on the Surgeon to make that call after she passed on the patient’s complaints to the surgeon.

  • The Surgeon would’ve been aware of each one of the patient’s phone calls.
  • She would’ve updated the Surgeon on the patient’s condition after each phone call.
  • She also relies on the Surgeon to look through the electronic medical record to keep updated on patients calling in with problems. This includes whatever was noted by the patient’s Medical Center PCP or the Medical Center’s Ophthalmologist who was also documenting in the electronic records (they all shared the Medical Center’s electronic medical records).
  • Throughout the post-op period when the phone calls were made, the patient was very compliant (i.e. the patient saw doctors she was told to see, got every medication the exact same day it was ordered, took every test she was told to take, etc.). She would have documented if the patient didn’t follow her advice; she never documented anything like that for this patient. She has no reason to believe that the patient was noncompliant with any instruction given during these phone calls.
  • She would look at the electronic medical record and see any phone calls/interactions with other Medical Center doctors each time the patient called in. She would then update the Surgeon on the patient’s status.
  • The phone calls documenting that the patient was being taken to the Hospital with eye problems etc. were available in the Medical Center chart to her and the Surgeon.
  • The Surgeon absolutely would’ve been told that his patient was admitted to the Hospital when the Hospital called the Surgeon’s office asking for a list of meds and diet restrictions for his patient on July 22 (as documented in the Hospital’s records and faxed to the Hospital from the Surgeon’s office).
  • The fact that records were faxed to the Hospital from the Surgeon’s fax machine during the Hospital admission proved that the Surgeon’s office was aware that his patient - who has been calling in with ongoing complaints - was admitted to the Hospital.
  • The Surgeon’s office faxed records to the Hospital after a note was even placed in the Medical Center’s records by the Ophthalmologist about the patient being admitted to the Hospital with blurred vision and nystagmus.


On July 20, the patient’s father called her Medical Center PCP’s office where it’s documented that he told them his daughter was dizzy, recently had gastric bypass, that her blood pressure was 170/118, and that his daughter had difficulty seeing. He was told to take his daughter to the ER ASAP. As instructed, he immediately took his daughter to the Hospital ER.

Recall that patients following gastric bypass surgery are at a higher risk for a thiamine deficiency. Also recall that being nauseated, having ongoing sinus drainage or ongoing gagging can precipitate a thiamine deficiency, as can vomiting or coughing up phlegm. Further recall that the signs and symptoms of a thiamine deficiency include an unsteady gate, vision problems (notably nystagmus which is involuntary eye movement), hearing problems, swelling, tingling, or numbness sensation in the hands and feet, and fatigue.

The records from this admission note that the patient had gastric bypass surgery 7 weeks earlier. The records also note, over and over, that the patient had the following symptoms: an unsteady gait, nystagmus, blurred vision, double vision (diplopia), was dizzy, was weak, had hearing problems, experienced numbness in both hands, “can’t focus”, had a hard time seeing, had some vomiting, was a high fall risk, was nauseated off and on, was hot and sweaty, had dry heaves, and was bringing up phlegm.

Remarkably, all 3 doctors providing treatment during this admission testified that they never once even considered a thiamine deficiency as a suspect cause of these symptoms on their differential diagnosis, let along ruled it out or treated it.

The Defendant Hospitalist

The Defendant Hospitalist was the “attending” doctor who was charge of the patient’s care during the admission to the Hospital. Among other things, he testified that:

  • He was qualified to diagnose a thiamine deficiency; however, he thinks a neurologist and ophthalmologist are more qualified (note: the Defendant Ophthalmologist disagrees, saying he isn’t qualified at all, and that a neurologist and Hospitalist are more qualified.).
  • He was well aware that a patient that just had gastric bypass surgery is at higher risk for a thiamine deficiency.
  • He was aware that patients that have diet restrictions are at higher risk for thiamine deficiency.
  • He was aware that an undiagnosed thiamine deficiency can lead to brain damage (i.e. Wernicke’s encephalopathy).
  • He was well aware that the moment a thiamine deficiency is even suspected, the doctor should give thiamine supplements; a doctor should not wait to confirm the suspicion.
  • Although he ordered a thiamine test which is an unusual test to order (i.e. suspicion), he never gave thiamine supplements.
  • If a thiamine deficiency is caught early and treated, brain damage can be avoided (an MRI during his care was negative for brain damage; an MRI 4 days after discharge was positive for brain damage).
  • During his care, the patient had no signs of brain damage nor did she have any signs of confusion / altered mental status (i.e. proving that the patient’s thiamine deficiency could have been treated before it affected her brain).
  • He testified that a patient with a thiamine deficiency would only demonstrate confusion after brain damage set in (based on his testimony alone, causation could not be clearer).
  • The thiamine test he ordered on July 22nd, which came back two days after discharge, confirmed a thiamine deficiency.
  • Despite (1) the thiamine test on July 22 (during this admission) revealing a thiamine deficiency, (2) the patient having numerous, classic signs of a thiamine deficiency during his care; (3) the next thiamine test on July 27 also revealing a thiamine deficiency; and (4) it being undisputed that the patient was diagnosed with brain damage caused by a thiamine deficiency, he remarkably claimed that the patient did not have a thiamine deficiency during his care. In fact, he goes so far as to claim that the results from the thiamine test he ordered on July 22, showing a thiamine deficiency, were just coincidentally wrong (note: this is just one small example of what this witness was willing to say at his deposition).
  • He only ordered a thiamine test because the Surgeons’ office requested it.
  • He specifically recalled a nurse telling him that the Surgeon wanted the test done. He was very adamant about this, and even recalled where he was when the nurse told him this. (note: if the jury believed him, this would have been very damaging to the Surgeon and Medical Center for numerous reasons. On the other hand, if the jury would not believe him when he was so adamant of his claim on a very crucial issue, even recalling specific details, it would have proved he was a blatant liar (who was also selfishly shifting blame to another doctor). Not only would this have been inflammatory for obvious reasons, but his credibility was at issue in countless other ways, including with several other co-Defendants).
  • He acknowledged he knew he was in charge of a patient’s care who was 7 weeks out from gastric bypass surgery that had an unsteady gait, vision problems, dizziness, nystagmus, etc., yet he never considered it to be related to the surgery or had a thiamine deficiency on his differential diagnosis.
  • Despite all of the patient’s symptoms, despite being 7 weeks from major surgery, and despite the Surgeon allegedly requesting unusual thiamine testing to be done, he never once even considered calling the Surgeon to discuss the patient.
  • He claimed that his nurses were working in conjunction with the Surgeon’s office.
  • He had a completely different version of a July 26 telephone call he had with the ER Doctor (note: this is very significant and discussed in more detail below; however, again, the versions are so dramatically different that only one doctor would be believed and the other doctor would be considered a liar – although this time, it is likely that neither doctor will be believed.)
  • He had no reason to believe that the patient was a non-compliant patient.
  • He ordered a thiamine test which later revealed that the patient had a significant thiamine deficiency. Recall that thiamine supplementation should be done immediately after even suspecting a thiamine deficiency; however, it was his testimony that he never suspected a thiamine deficiency. He swore that he only ordered this test because the Surgeon’s office recommended it.
  • He stressed that he was relying on the opinion of the Defendant Neurologist, the neurologist that he consulted, who told him that the patient could be discharged (note: again shifting blame).
  • He also claimed that the nursing staff told him that the Defendant Ophthalmologist told the nursing staff that the patient should be discharged (note: again shifting blame. Notably the Ophthalmologist also adamantly denied that).
  • Before he discharged the patient, he admitted he never even tried to talk to the Ophthalmologist about what the Ophthalmologist concluded from the Ophthalmologist’s exam (note: the Ophthalmologist testified that he thought the cause of the patient’s problems was a neurological problem; the Hospitalist was never aware of this and discharged the patient because the doctors never once tried to talk to one another).
  • He claimed that he never knew that anyone (i.e. the Ophthalmologist) thought the patient had a neurological problem. (note: The Neurologist makes the same claim; however, that is only due to the total and complete lack of communication between the three physicians caring for the patient during this admission).

The Defendant Neurologist

On the second day of this hospital admission, the Hospitalist ordered a consult from the Defendant Neurologist. The Neurologist’s deposition revealed:

  • Although he was not board certified, he agreed that as a neurologist, he was trained to diagnose a thiamine deficiency and Wernicke’s encephalopathy.
  • He didn’t consider the recent surgery of any importance.
  • He testified that the doctor who performed the gastric bypass surgery (i.e. the Surgeon) should have been watching and checking his patient’s thiamine levels, and if the Surgeon was not, “the doctor is at fault not the patient.” He went on to add that they have nutritionists at the Hospital that follow post gastric bypass patients and that surgeons regularly check up on blood work to make sure that everything is okay.
  • During his exam, he noted that the patient, among other things, was dizzy and felt like she may fall down, and that her visual field was grossly poor.
  • Since he wanted to determine whether the patient had nystagmus (i.e. involuntary eye movement which he agrees is a sign of thiamine deficiency), he ordered a consult from the Defendant Ophthalmologist to determine whether the patient did have nystagmus.
  • His other goal of the consult was to see if the Ophthalmologist could find a cause of the blurred vision.
  • The next day, the Ophthalmologist did his consult and examined the patient. Notably, the Ophthalmologist confirmed the nystagmus diagnosis. So what did the Neurologist, do once the Ophthalmologist confirmed nystagmus which was the primary goal of the consult? Nothing.
  • And what did he do once the Ophthalmologist did not rule out causes of the blurred vision which was the secondary goal of the consult? Same thing. Nothing.
  • That’s because he didn’t find out about either of these vitally important facts and findings until his deposition. In fact, he testified that he thought the Ophthalmologist was going to call him afterward with the Ophthalmologist’s conclusions so they could discuss the patient. Again there is no dispute this never happened.
  • Essentially he blamed the Ophthalmologist. He testified that his routine with the Ophthalmologist was for the Ophthalmologist to call him if there was anything significant that they needed to discuss, and that the Ophthalmologist was well aware of his expectations. Notably, he never tried to communicate with the Ophthalmologist either. This was another example of the total lack of communication here.
  • He considered the Hospitalist to be in charge of the patient’s care.
  • Again, he then testified that he expected to be updated, by the Hospitalist or the Ophthalmologist, on the patient’s condition prior to her being discharged. This was inconsistent however because the Hospitalist testified that he did update the Neurologist and that the Neurologist told him that the patient could be discharged. The Neurologist testified that he could not deny the Hospitalist’s claim.
  • Again blaming the Ophthalmologist, he was very clear in his deposition that the Ophthalmologist never let him (the neurologist) know that the Ophthalmologist believed the patient had a neurologic cause to her vision problems; and that is something he “definitely” would have wanted to know (especially since the Ophthalmologist testified that he thought the patient had an underlying neurological problem).
  • He expected the Ophthalmologist not to just evaluate the patient but to evaluate the nystagmus and then treat the nystagmus. The Ophthalmologist never did that, nor did anyone else.
  • And he agrees that since the Ophthalmologist never contacted him, as a neurologist, he was never given the opportunity to determine the neurologic cause of the patient’s nystagmus during that admission. As a result of this botched miscommunication, it was difficult to deny that a chance to diagnose and treat the cause (i.e. a thiamine deficiency) was lost before it affected the patient’s brain.
  • He also agreed that it is important to diagnose Wernicke’s encephalopathy as early as possible because the earlier it is diagnosed and treated, the greater chance the patient of recovering from that condition.

The Defendant Ophthalmologist

On the third day of the four day hospital admission the Ophthalmologist examined the patient as a result of being consulted by the Neurologist. His deposition revealed:

  • He did not pass his Boards on the first attempt.
  • He spent no more than 15 minutes with the patient.
  • Oddly, he claimed he was not qualified to diagnose a thiamine deficiency. He claimed that a neurologist or Hospitalist were more qualified to diagnose a thiamine deficiency (recall that the Hospitalist claimed that an ophthalmologist is more qualified than him to diagnose this condition).
  • He did acknowledge however that he knew that patients following gastric bypass surgery are at a higher risk for a thiamine deficiency because a patient can’t always absorb thiamine properly.
  • He also acknowledges that he knew that a thiamine deficiency has to be treated as early as possible, and that a thiamine deficiency can affect the patient’s vision through double vision and/or nystagmus.
  • Unlike the Neurologist, he agreed that a recent gastric bypass surgery would be a very significant part of the medical history to be aware of.
  • He was relying on the Neurologist to determine the neurologic cause of the nystagmus; however, he didn’t do anything to let the Neurologist know that that is what he found or that he thought the cause of the nystagmus was neurologic in nature. (Again, inexcusable lack of communication).
  • He was aware the patient was experiencing dizziness, felt like she might fall down, had double vision, nystagmus, and hearing problems (which he agreed also has a neurologic cause).
  • He did not know the patient had nausea, vomiting, unsteady gait, etc. even though these symptoms were clearly documented over and over again prior to his exam in the medical record.
  • The patient fully cooperated with him during her exam.
  • He testified, as did all of the doctors from this admission, that cognitively, the patient showed no sign of confusion or brain damage. (Further supporting Plaintiffs’ causation case).
  • He was never told that a doctor (either the Hospitalist or the Surgeon depending on which one is believed) was considering a thiamine deficiency as a cause and/or ordered a thiamine test the day before his exam.


On July 22nd, during the admission at issue, the Hospitalist ordered thiamine testing which required blood to be drawn from the patient. This occurred at 4:00 pm and was provided to the hospital lab at 4:28 pm. Since the Hospital’s lab wasn’t capable of performing this type of test in-house, the lab had to send the specimen to Quest Diagnostics in Chantilly, Virginia via a courier. It was not until the next day, on the afternoon of the 23rd, that the lab finally sent the specimen to Quest Diagnostics.

On July 24, Quest Diagnostics received the specimen shortly after midnight. Testing revealed that the patient had a dangerously low thiamine level.

By the early afternoon of July 25, there is no dispute that the hospital was in possession of the test results. What did the hospital do with the test results? Nothing. The test results sat in the Hospital’s lab computer for 3 days by which time the patient had already been admitted to the Medical Center and diagnosed with a brain injury caused by a low thiamine level.

At the time, an electronic copy of the test result did not get placed in the patient’s electronic medical records – only a hard copy of the test result got put into the hard copy of the medical records. Per the Hospital policy, the test results were only printed out once a day in the morning by lab personnel. A “clerk” then had the responsibility to walk the printed test result 100 feet down the hall to the medical records department and place one copy in the medical record, and the other copy in the ordering physician’s mailbox. This didn’t happen on July 25 because the test came back in the early afternoon, after the test results were printed, and the lab only prints test results once a day in the morning.

It didn’t happen the next day either, on Sunday July 26th, because although the lab technician was there to print out the test result in the morning, the hospital chose not to have any clerks work on Sunday to physically walk the results down the hall. Therefore, per Hospital policy, any test result that came back on any Saturday or Sunday would just sit in the lab until Monday morning (it is unimaginable how many vital test results have sat all weekend as a result). Even worse, in his deposition, the Hospital lab director agreed that the hospital’s system was due to a “financial decision” that the hospital made so that the hospital didn’t have to pay a clerk on Sunday ($12.00/hour), even though the Hospital was well aware that that decision would result in tests sitting all weekend, thus potentially placing its patients’ lives at risk.

Notably, the Hospital has since changed how a thiamine test result is handled once it is received. Unlike here where it sat in the lab computer all weekend, a thiamine test result now immediately posts in the patient’s electronic medical record so that health care providers can be timely notified. Thus, there is no dispute that the Hospital had the capacity to have such a system in place during the period in question, they just chose not to do it.

Accordingly, there could be no dispute that when the patient came to the ER on July 26, there was a lab technician in the lab who had the capability of pulling up the test result and letting the caregivers know that a thiamine deficiency was and has been the problem. Even worse, the test result was likely already printed and just sitting in a bin to be walked down the hall. Instead, the patient wasted 7 hours in the ER while caregivers tried to find out what the problem was to no avail. So while a lot of time and money was spent trying to find out the problem that day, the answer was sitting in a computer right down the hall. As a result, the thiamine deficiency went undiagnosed for yet another day (until July 27th).

The Hospitalist and the Thiamine Test Result

What did the Hospitalist plan on doing once he got the test results back? Nothing. He testified that he was under the impression that after the patient was discharged, the lab would take it upon itself to send a copy of the test results to the patient’s PCP (who wasn’t involved in the patient’s care here whatsoever). He testified that he has been told that is what happens by lab administration. The Hospitalist testified that sometimes he would get a copy of the test results, sometimes he wouldn’t; he testified that the Hospital was really inconsistent in that regard. He never thought the lab was going to give him a copy of the test results because the patient was discharged. In fact, the Hospitalist was insistent that the PCP would be sent a copy of any test results that came back after a patient’s discharge.

As for the Surgeon getting a copy of the test result, the Hospitalist even made up some odd story about how the Medical Center was “2 hours away” and since that’s a long way to fax the test result, he wasn’t sure whether the Surgeon would get a copy. In any event, he agreed that he didn’t make any arrangements for the Surgeon or the PCP to get the results (even though he claims the Surgeon requested it). He still thought however that the Surgeon would follow up on the results” somehow”, guessing even that the Surgeon had access to the Hospital records electronically. The Hospitalist then changed his story claiming that once the patient was discharged, he was under the assumption the PCP would get the test results and whatever follow-up occurred from there was the PCP’s and the Surgeon’s responsibility since she was no longer his patient.

Significantly, the Hospital lab director testified that none of the Hospitalist’s testimony was true. The lab director testified that per written hospital policy, only the Hospitalist, as the ordering physician, would get a copy of the test, and that a copy of the test result would get placed in his mailbox. The PCP or Surgeon would not get a copy sent to them


Two days after discharge, on July 25, 2009, a Saturday, the patient and her family visited her father’s house. Not feeling well, she decided to just spend the night. The following morning, on the 26th, a Sunday, the patient’s father and her husband noticed that the patient still wasn’t doing well. They made a phone call to the patient’s mom, who immediately left her house to come see her daughter. They then noticed that the patient was staring into space, couldn’t see, that she didn’t know where she was, that she didn’t recognize her son, etc. Upon the mom’s arrival, the mom called the Medical Center, and as documented, explained how the patient was staring into space, was confused, had vision problems, etc. As instructed, the patient’s mom immediately took her to the ER at the Hospital.

There, she was seen by an ER Nurse and the Defendant ER Doctor. It’s documented that the patient recently had gastric bypass surgery, was confused, had an unsteady gait, couldn’t see, etc. This ER encounter lasted for roughly 7 hours – even though a documented decision to discharge was made about 3 hours into the visit. No diagnosis was ever made.

After the patient and her mom returned home with still no answers or diagnosis, the patient’s husband drove her to the Medical Center where she was admitted and finally diagnosed with Wernicke’s encephalopathy caused by a thiamine deficiency. Notably, thiamine supplements were immediately given as soon as a thiamine deficiency was even suspected.

While the details of this ER visit and the ER Doctor’s version of the events are simply too long to go into detail, it became well known to all of the parties that the ER Doctor – who has worked for 9 different employers and 12 different hospitals in the previous 3 years, and was let go by the Hospital shortly after this incident – did not make the best witness or carry much credibility.

For example, he testified that none of the records from the prior admission - electronic or hard copy - were available to him. He unequivocally pleaded it in his Answer, his discovery responses, and over and over for the first 2 hours of his deposition. He was emphatic that no records were available. He even pleaded and testified that he sent the ER Nurse to get the hard copy of the records and even she couldn’t find them. He also specifically testified that no electronic records were available. When it became apparent that his testimony was a blatant lie (e.g. it came up that he referenced a prior record in his notes, that the hospital could determine whether he used his password to access the electronic records, how he referenced doctors from the prior admission, how the hospital has documentation that the hard copy of the records was brought to the ER for him to review, etc)., he then did a complete 180 claiming that it was only the “discharge summary” that he couldn’t find. It was incredible testimony.

Similarly, in his Answer and deposition, he unequivocally stated that he couldn’t perform an MRI because the Hospital didn’t have an MRI machine. Again, later to be proven untrue.

Moreover, the ER Doctor, who was actually employed by a separate Defendant Corporation that supplies ER doctors to hospitals, testified that prior to his deposition, he met with a risk manager physician who is also an employee of the Defendant Corporation, for roughly 4½ hours. The ER Doctor essentially testified that the risk manager physician gave him a “script” for his deposition; the risk manager physician told him what to say, what not to say, what to stress, to blame the patient, how to answer questions, etc. Again, incredible testimony.

Phone call between the ER Doctor and the Hospitalist on July 26 In the records, the ER Doctor documented a phone that he had with the Hospitalist during the ER visit on the 26th. When asked about it in his deposition, the ER Doctor testified that he called the Hospitalist because he needed permission to “admit” the patient. The ER Doctor testified that he told the Hospitalist that the patient returned to the Hospital now showing signs of confusion. The ER Doctor also testified that the Hospitalist told him that that wasn’t anything new, and refused to admit the patient. The ER Doctor testified that his notation in the chart - that the Hospitalist told him that the patient needed a psychiatric referral - was because the Hospitalist thought the patient was faking her symptoms, and thus needed to be seen by a psychiatrist.

Interestingly enough, the Hospitalist offered this far-fetched explanation for why he told the ER Doctor that the patient needed a psychiatric referral: sometime patients who have gastric bypass surgery need counseling to deal with the mental aspects of their surgery. Moreover, the Hospitalist also testified that he was under the impression that the ER Doctor would look to see what tests were ordered and to see if the results came back after discharge (recall the thiamine test came back the day prior). The Hospitalist also vehemently denied that the ER Doctor ever told him that the patient now presented with confusion or that the ER Doctor was asking for his permission to admit the patient.

One last thing to note about this ER admission is the ER Nurse’s testimony. She testified that:

  • She was the ER nurse on July 26.
  • Regarding the ER Doctor being terminated from the Hospital, she testified that “nobody was upset to see him go.”
  • She further added that the ER Doctor’s personality didn’t mesh with the ER staff; he was difficult to work with; had his “own way of thinking”; people didn’t like working with him; and at times was not a good doctor. She also knows there were many complaints made about him.
  • Based on the records, she did a nursing assessment on the patient. She documented that the patient came in on a wheelchair and noted that loss of vision in both eyes
  • She testified that the ER Doctor’s story (that he asked her to get the paper chart from the medical records department and she couldn’t find it) is simply not true and “absolutely” makes no sense. In fact, a records was produced after the ER Doctor’s deposition evidencing that the paper chart was in fact brought down to the ER per routine.
  • The electronic medical record would “absolutely” have been available to the ER Doctor as well and that the ER Doctor’s testimony about that also makes no sense.
  • Contrary to what the ER Doctor testified to, ER doctors routinely order tests where the results come back after discharge.
  • If a patient signs out Against Medial Advice (“AMA”) there is a procedure to follow where the patient signs a document filled out by the staff. If the patient refuses to sign, the document still gets placed in the chart. There is no documentation in the chart to that effect to support the ER Doctor’s claim that the patient left AMA.
  • Contrary to what the ER Doctor claims, the Hospital was fully capable of performing an MRI as it does have an MRI machine


Becky and Brian Fulton are blue collar, everyday Americans. They were married for roughly 20 years when these events place. Becky was born and raised in rural Pennsylvania. Her parents divorced when she was young; her and her younger sister were raised primarily by their dad who worked for over 40 years as a maintenance man for a local steel company before he retired. Brian is a long-time construction worker. His job frequently requires him to be away from home during the week working 4 10-hour days. They had 3 children ages 22, 20, and 13. They also had one granddaughter.

Becky was 43 years old during the course of the lawsuit. She had training as a CNA. She was working for the Medical Center as a switch board operator/receptionist; however, shortly before surgery, her position was eliminated and she was laid off. Prior to that, she worked at Wal-Mart, as a waitress, as a health aid, etc. She was thin all of her life, but following the birth of her third child, she had problems losing weight. She tried dieting, exercising, etc. Due the health stresses of putting on weight (she became hypertensive, a diabetic, etc.), her PCP recommended that she undergo gastric bypass surgery.

After Becky was admitted to the Medical Center for four days at the end of July in near critical condition – where she was ultimately diagnosed with Wernicke’s encephalopathy which was confirmed on an MRI – she was discharged to home where she continued to receive physical and occupational therapy. She was unable to walk and had to use a walker to ambulate. Becky couldn’t use the stairs, had to stay on the first floor, and go to the bathroom in a porta-potty. Her husband and kids pitched in take care of her (e.g. the daughters even had to bath Becky).

A few weeks later, she was admitted to a tertiary care hospital in Pittsburgh for another 4 days because she wasn’t getting any better. The hospital records document that Becky was having trouble balancing, vision problems, had light sensitivity, nystagmus, was dizzy, had residual eccentric gaze, significant misalignment, and cognitive problems as a result of her brain injury. The doctors in Pittsburgh advised that Becky still wasn’t absorbing the thiamine pills she was taking due to the surgery; and that Becky was going to need thiamine supplements injected directly into her leg.

Tellingly, Becky’s treating neurologist believed that this all began when Becky had continued sinus drainage combined with gagging and spitting up for weeks. That - combined with the effects of surgery and not being able to eat – simply didn’t allow her body to absorb enough thiamine.

Becky still feels wobbly and has trouble with balance (depending on the weather). She has problems with bright lights so she wears sunglasses a lot. Her eyes bounce. She has a hard time driving with windshield wipers on. As a result, she stays home a lot. She had to use a walker for a period of time. She also couldn’t drive at night for a period of time and still avoids it if possible.

One of the worst problems is how Becky’s cognitive deficits and memory impairment have made her a completely different person. She can’t interact with her kids like she used to. She can’t carry on conversations with anyone like she used to. What’s worse, there aren’t any surgeries or medications that can cure her either. She questions herself a lot. She constantly misplaces items. On a daily basis, her husband and kids have to leave notes for her. She’s withdrawn from her friends. She can’t hold simple conversations like she used to. Brian and her family are required to constantly remind Becky to do things or buy things. Brian can ask her the same thing several times and she does not remember (this also leads to more responsibility for Brian). The couple doesn’t engage in social activities anymore (e.g. get-togethers with friends) like they previously did.

One special way that Becky and Brian used to spend time together as a couple would be to attend circle track races on Saturdays; however, due to noise and the affects it has on her eyes, brain, and balance, she could longer do this. She stays home while her husband goes alone. The couple also can’t enjoy everyday things that couples usually enjoy (and take for granted) because of the brain injury, whether it’s a deep conversation, or talking about their kids. This also leads to missing shared experiences.

In his deposition, Becky’s father described how Becky is “slow” now, and just hot happy anymore. Due to her brain injury, she just sits around in a daze and isn’t the same person. He described how Becky used to be a happier person, even at a higher weight. He also described Becky’s memory problems. He even gave examples of how Becky forgot that her grandfather died, or how Becky forgot that her daughter graduated from high school. She’ll even call him multiple times in one day to ask the same thing. He also described how Becky’s family has to write notes for her and leave them all over the house on a daily basis.

Becky’s mom described how prior to the operation, although Becky was overweight, she was a happy person. Prior to this Becky wasn’t a homebody; she used to do things for people, like volunteer cutting hair at a home that houses mentally challenged people. Her mom also described how Becky’s eyes still bother her, how Becky can’t really drive in rain or at night, and how she’ll lose her balance at times. She also described how Becky has no memory anymore, and tires out (mentally) quicker. She even gave an example how Becky will text her the same thing multiple times in one day without knowing. She also described how Becky just isn’t the same person anymore and how this affects every day of Becky’s and her family’s lives.

Becky’s PCP, who was a Medical Center physician, noted in his records that Becky’s injury “constantly” interferes with the attention and concentration required to perform simple work tasks, and that Becky was “incapable of even low stress jobs.” He also noted that Becky is not a malingerer, and still continues to suffer from ataxia, photophobia, fatigue, dizziness, etc. and that these are all symptoms consistent with her diagnosis.

Becky’s treating neurologist in Pittsburgh noted in his records that Becky has a chronic cognitive disorder that will continue long-term, and that her “major impairments” that will continue long-term will be nonverbal memory, attention, concentration, visual special tasks, memory, and the stress that accompanies her injury. He further opined that any job that Becky gets will have to provide a very favorable working environment that included no distractions, no noise, no multiple task, and frequent break periods. He further wrote that Becky would need frequent days off due to “bad days”. He also noted that Becky is not a malingerer.

On referral from one of her treating physicians, Becky was examined by a neuropsychologist. He found that Becky had cognitive deficits associated with Wernicke’s encephalopathy. He also opined that Becky would have problems with “attention and executive function in everyday life would be expected.”

The Defendants had their own neuropsychologist examine Becky. The Defense neuropsychologist noted Becky was polite and cooperative during her exams. Moreover, even though he was being paid by the Defendants, he also found that Becky had neuro-cognitive deficits that were consistent with the same deficits she displayed during her neuro-pysch testing two years earlier (this was significant because it is known that 99.99% of Defense medical exams result in the doctor falsely claiming that the victim is not injured in any way). He also found Becky to be depressed and pessimistic about her future which he believes is reflective of her injury.

As is the case in every medical malpractice lawsuit, the Defendants’ Lawyers tried to think of any way they could to blame the patient or defend the case. The Defense tried every tactic to prove and/or insinuate that Becky was and is a noncompliant patient who wasn’t taking her vitamins as required or listening to her doctors. As a result, Plaintiffs exhaustively went through each one of Becky’s medical records/encounters with each healthcare provider deposed in this case, asking, “At this point, was Becky noncompliant with anything?” The answer to every question was always, “No.”

Additionally, the Defense tried to embarrass, harass, and humiliate Becky and Brian every chance they could. This included trying to subpoena records from a tattoo shop to look into the tattoo that Becky got when she was 18 years old; looking into who cuts her hair; how she got her tan; going through her Facebook pages; requesting Brian’s personnel files from his employer; having a private investigator spy on them for days while filming them; having Becky remove her shoe at her deposition to measure the heel, etc. Significantly, none of these attempts have led to anything that would contradict or damage Plaintiffs’ case. Instead, Defendants’ actions have only led to the Judge issuing numerous Orders prohibiting these tactics.

Last, one non-issue in the case that Defendants tried to make an issue of is a “positive” ethanol test from the July 26 ER visit. The “normal” reference range is extremely broad: 0.0 - 13.0. That’s because many factors can cause a “false positive” for ethanol. For example, diabetics are known to have false positives (Becky had been diagnosed with form of diabetes). A surprising number of common household products such as over the counter decongestants, cold medicines, perfumes, and cosmetics will raise someone’s ethanol test score. Mouthwash and hand sanitizer can raise someone’s ethanol score. Here, Becky’s came back at 13.3. That’s 00.3 outside the accepted reference range.

While most Defense Counsel acknowledged that the ethanol test was a red herring or non-issue, some continued to beat that drum no matter how illogical it was. In fact, the defense would have to prove not only that Becky drinks alcohol, but prove that she was a long-term, chronic alcoholic, and that is what caused her thiamine deficiency, not anything to do with the surgery. To do that, they would have needed to ignore not only overwhelming facts, but basic logic.

One subset of people that are known to experience Wernicke’s encephalopathy caused by a thiamine deficiency are long-term, chronic alcoholics. That’s because long-term, chronic alcoholics can suffer from a nutritional deficiency if all they do is drink alcohol and not eat. Therefore, the same principles that apply to post-op gastric bypass patients apply to these types of alcoholics. If the body isn’t eating properly and therefore not getting the proper nutrition required, it can lead to a thiamine (vitamin B-1) deficiency. It isn’t the alcohol that causes a thiamine deficiency, it’s not eating (alcohol itself has no effect on how the body absorbs thiamine). To that end, alcohol in a post-op gastric bypass patient is medically irrelevant. In fact, the Surgeon here, and an expert on this issue, even testified in his deposition that he counsels his patients to not drink alcohol after they had this operation, not because it has anything do with a thiamine deficiency, but since the stomach capacity is so small, it can lead to dumping (i.e. chronic diarrhea). Everyone agreed that Becky never had any diarrhea.

Furthermore, to believe that Becky’s ethanol test result was the result of her drinking alcohol, an objective person would have to suspend belief in reality. It would have to be believed that Becky got up 2 days after being admitted to the hospital (for 4 days), early Sunday morning, at her father’s house, and started drinking alcohol heavily. We knew that the family called her mom who lives 2 hours away because Becky wasn’t feeling well. We knew her mom drove 2 hours while the family waited with Becky. We knew that after mom got here, she called the Medical Center at 11:48 am telling them that Becky was confused, had eye issues, and was staring into space (so Becky would’ve had to secretly start drinking well before her mom was called around 9:00 am. Not only that, the drinking had to be so heavy that it showed up in a test taken roughly 5 hours later). We knew she arrived at the ER at 12:43 pm and that blood work for the test was collected at 1:26 pm. We knew that every one of Becky’s medical records produced in this case (some going back 10-15 years) note she does not drink alcohol. We knew that none of Becky’s personnel files subpoena by Defense Counsel note anything about drinking. We knew that Becky and her family were adamant that she didn’t drink alcohol. We knew the records from her admission from 2 days earlier document that she was nauseas, had double vision, couldn’t focus, was weak, had hearing problems, couldn’t stand, was bringing up phlegm, etc. We knew these are symptoms of a thiamine deficiency. We also knew that Becky was later diagnosed that same Sunday with a brain injury caused by a thiamine deficiency. We also knew that the ER Doctor that ordered the ethanol test, testified that once he received the test back showing only 00.3 outside the negative reference range he dismissed the thought of Becky drinking. We further knew that she was diagnosed with “non-alcoholic Wernicke’s encephalopathy” caused by a thiamine deficiency. We knew her treating neurologist gave an opinion as to how the thiamine deficiency occurred. Despite all of this, some Defense Lawyers continued to make the disingenuous argument that Becky was a closet, chronic alcoholic, and that is what coincidentally caused her thiamine deficiency induced brain injury in this case (their “proof” that Becky was a chronic alcoholic was 1 of the 72 things that Becky “liked” on her Facebook page was a Captain’s Morgan’s ad).


In the end, here were the facts that no one could deny despite countless efforts by the Defense to deny:

  • The Defendants were all well aware that their patient was at risk for a thiamine deficiency.
  • In the month before suffering a brain injury caused by a thiamine deficiency, the patient called her surgeon’s office over and over again looking for help.
  • In the week before suffering a brain injury caused by a thiamine deficiency, the patient sought care from the Hospital on multiple occasions looking for help.
  • Throughout this period, the patient exhibited numerous, numerous signs of a thiamine deficiency that the Defendants were all well aware of or should’ve been well aware of.
  • None of the Defendants ever had a thiamine deficiency on their differential diagnosis.
  • All of the Defendants misdiagnosed their patient.
  • As a result, Rebecca Fulton suffered a permanent brain injury caused by a thiamine deficiency which has forever changed her life.

After years of litigating this case, after taking roughly 16 depositions, extended discovery, and making numerous court appearances, the parties agreed to “mediate” the case before a former Common Pleas Judge. During the mediation, which lasted over 7 hours, all but one of the Defendants agreed to contribute and settle the case for a substantial amount. The one remaining Defendant - who would have been the only remaining Defendant to try the case against - settled the following day.