A Summary Judgment Victory? Not So Fast.

Repurposed from The Scope, Second Quarter 2026

Initial Treatment

A 41-year-old single female and CFO at a Fortune 500 company was referred to a MLMIC-insured internist to take over as her primary care physician. The internist followed the patient over the next decade and was aware of her family history of cardiac disease. The patient underwent routine checkups, and her blood work revealed normal cholesterol levels, with some on the high end of normal and the LDL levels slowly climbing over time to the elevated range. The patient underwent a nuclear magnetic resonance LipoProfile, which placed her in a “high risk” category. The internist advised her that this was one of the examinations he relied on to determine if a patient needed to start Lipitor, as he was of the opinion that a patient’s cholesterol and LDL can never be low enough, especially with a family history of heart disease. The internist recommended 20 mg of Lipitor a day, but the patient refused and requested an echocardiogram and repeat blood work before taking any statins. The patient subsequently underwent two intima medical thickness measurements that revealed borderline normal results. The patient then agreed to begin 10 mg of Lipitor.

Symptoms Emerged and Patient Hospitalized

Three weeks after starting Lipitor, the patient presented to the internist with a two-week history of chest discomfort. She reported feeling “weird” and had discontinued taking Lipitor, after which her symptoms had decreased. The internist documented her blood pressure of 90/62 and performed a negative cardiac examination. He further recorded that the patient’s symptoms were only on exertion, specifically while running. Three days later, the patient called the internist and spoke with his nurse. She requested Zithromax for complaints of throat discomfort. The nurse spoke with the internist, who agreed to the prescription request, as the patient had been on Zithromax previously for the same complaint, and the nurse faxed the patient a prescription for Zithromax. Two weeks later, the patient fainted and was taken to the hospital, where she was diagnosed with second-degree heart block. However, the patient declined the recommendation for pacemaker implantation.

The patient was admitted to the hospital three weeks later and was diagnosed with third-degree atrial ventricular (AV) heart block, which required her to have a pacemaker placed.

Lawsuit Filed and Experts Retained

The patient brought a suit against the MLMIC-insured internist as well as his nurse, who had her own medical professional liability (MPL) coverage with a different carrier. The patient claimed that negligent prescriptions of Lipitor alone or in conjunction with azithromycin resulted in the development of a third-degree heart block and the need for a pacemaker. According to her testimony, several doctors at the hospital stated that the combination of Lipitor and azithromycin could cause heart block. MLMIC retained cardiology and pharmacology experts, and they agreed that the standard of care was met. The cardiology expert opined there was no contraindication regarding the use of Lipitor and azithromycin, in combination or separately, and that neither drug causes heart block without rhabdomyolysis, which the patient never had. There was some concern about prescribing Lipitor to someone with essentially normal cholesterol levels. However, given the plaintiff’s family history and the internist’s desire to have the plaintiff’s cholesterol levels as low as possible, this judgment call was deemed appropriate. Regarding the prescription of azithromycin over the telephone, the cardiology expert felt this was not a departure from the standard of care, as this was a long-standing patient who had a history of sore throat and respiratory symptoms and had received azithromycin previously with positive effects and no negative outcomes. Therefore, it was appropriate to prescribe this medication when the same complaints arose again even without seeing the patient. More importantly, the prescription of azithromycin did not cause third-degree heart block. A weakness in the case was the internist’s poor recordkeeping. The chart was sparse, handwritten and often illegible.

Summary Judgment Granted, Then Overruled

The internist’s defense counsel filed a summary judgment motion and demonstrated through both expert proof and the submission of medical literature that Lipitor (or any statin), either alone or in combination with azithromycin, has never been known in the scientific community to result in an AV heart block. The plaintiff opposed the defense’s motion with a mountain of material, including hundreds of pages of medical “studies,” literature, and four separate expert affirmations. However, none of this material established the causational link at the heart of the defense’s motion. The plaintiff then submitted pseudo linkages, including citations to case reports in which Lipitor might have been associated with rhabdomyolysis, which the plaintiff’s expert then tried to link to the patient’s AV heart blockage, skipping over the record demonstrating that the patient never had rhabdomyolysis in the first place. The Court granted the defense’s summary judgment motion, and the plaintiff’s counsel followed with a motion to renew and reargue the case, which the Court denied. The plaintiff then filed an appeal with the Court of Appeals Appellate Division, First Department, which the plaintiff paid for out of pocket. The Court of Appeals stated in a 4-3 decision that the defense had not met their prima facie burden in its summary judgment motion. The majority in the Court of Appeals stated that while the defense addressed the topic of Lipitor alone, it did not adequately address the argument that Lipitor in combination with azithromycin, or azithromycin alone, could not cause electrical disturbances in the heart without myopathy. The Court of Appeals did not address any of the arguments brought up by the plaintiff’s counsel. The internist’s counsel thought the decision was truly bizarre, especially given the claims that the cause of the plaintiff’s injury was the prescription of Lipitor, either alone or in combination with the antibiotic, which was the topic that the defense counsel had addressed.

The plaintiff’s allegations subsequently evolved to include the unnecessary prescription of Lipitor in the absence of any indication for its use, as well as the prescription of azithromycin without indicating the rationale for said prescription or without the internist seeing the patient in the office. The plaintiff made a monetary demand that included the entirety of the internist’s MPL policy coverage limits.

The Trial

At trial, the plaintiff’s counsel made a motion to prohibit the defense from asking the plaintiff about the many other lawsuits she had filed, one of which was a concurrent medical malpractice suit. The Judge advised he would make a ruling before the plaintiff took the stand. The internist was very nervous and feared the litigious plaintiff would go after his personal assets with an excessive award if the trial resulted in a plaintiff’s verdict. The defense was concerned over how the internist would testify at trial, as he did not do well at his deposition and gave more information than required, probably due to stress. There was also a high likelihood of an appeal should the defense prevail. Therefore, after much negotiating, the case was settled for a reasonable amount within the insured’s MPL policy coverage limit.

A Legal and Risk Management Analysis

This case highlights that, apart from the facts and legal arguments, there are other factors at play that can affect the outcome of a medical malpractice case. A strong defense can be undermined by other factors, such as inadequate medical documentation or an unsatisfactory performance at a deposition. In this case, the defendant made mistakes that put him at a significant disadvantage.

Poor Documentation

There seem to have been multiple instances of inadequate documentation by the internist. Telephonic prescriptions have become routine but may be problematic when conjoined with the issue of inadequate documentation. Additionally, during a visit where the plaintiff had complained of chest discomfort, the insured did not record the plaintiff’s heart rate. The problem with poor documentation did not end here, as it seems the overall documentation was lacking the relevant details and was also illegible. This is something that a jury would have likely perceived as being unprofessional and indicative of malpractice, thereby putting the defense of the case at a severe disadvantage.

Problematic Testimony

Compounding the internist’s documentation problems, he did not testify well at his deposition, which is essentially a question-and-answer session in which the opposing attorneys question the defendant regarding the facts and allegations of the case. A deposition presents an opportunity for the opposing side’s attorney to come face to face with you to evaluate your demeanor and theorize how a jury will perceive you. Defendants that come across as insincere or unlikeable to a jury could result in the defense being motivated to settle the case.

Unique Challenges

It is also worth pointing out that another dynamic was at play here, namely, that of the internist feeling nervous about going to trial. Notably, he feared that his personal assets would be exposed if the jury returned an excessive verdict. Such fear is not irrational. In personal injury or medical malpractice lawsuits, the insurance company provides financial coverage up to your insurance policy coverage limits. If there is a verdict beyond the coverage limits, that is essentially the defendant’s responsibility. This is a factor that comes into play in settlement discussions, especially when there is a good chance that a jury might return a verdict favorable to the plaintiff.

The Unknown

Perhaps one of the most challenging aspects of medical malpractice court cases is the uncertainty of jury verdicts. While there are some venues and jurisdictions that are known to have a pro-plaintiff or pro-defendant jury pool, even a seasoned attorney cannot always accurately predict how a jury will rule in each case. Plaintiffs risk completely losing the trial and receiving nothing from the jury, whereas defendants risk a jury award beyond the insurance policy limits. Because of this uncertainty, malpractice cases often settle.

The Role of Legal Motions

This case provides a great example of the role that legal motions can play. In this case’s summary judgment motion, the court was asked to dismiss the case based on no wrongdoing having been committed by the defendant. However, the results of such motions can be unpredictable. Initially, the motion was granted, but then the plaintiff appealed, and the summary judgment decision was overturned by the highest court in the state. Litigation is unpredictable, as even courts and judges might disagree on how to rule.

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This document is for general purposes only and should not be construed as medical, dental or legal advice. This document is not comprehensive and does not cover all possible factual circumstances. Because the facts applicable to your situation may vary, or the laws applicable in your jurisdiction may differ, please contact your attorney or other professional advisors for any questions related to legal, medical, dental or professional obligations, the applicable state or federal laws or other professional questions.