Bullard v St. Barnabas Hosp.
Annotate this CaseDecided on April 26, 2005
Supreme Court, Bronx County
Norma McCown Bullard, as Executrix of the Last Will and Testament of CHARLES W. BULLARD, Deceased, Plaintiff,
against
St. Barnabas Hospital; ST. BARNABAS NURSING HOME; AHMAD IBRAHIMBACHA, M.D.; GEORGE PICCORELLI, M.D.; NEIL WEINTRAUB, M.D.; KENNETH SCHWARTZ, M.D.; VICTORIA BENGUALIO, M.D.; REEGINA HAMMOCK, M.D.; JAMES CROLL, M.D.; LOANN TRINH, D.O.; F. CALDERON, M.D.; SCOTT COOPER, M.D.; and A. GUNASETARAN, M.D., Defendants.
7898/2001
Counsel for plaintiff:
Harmon, Linder & Rogowsky, Esqs.
by Mark J. Linder, Esq.
42 Broadway, Suite 1227
New York, NY 10004
(212) 732-3665
Counsel for defendants Pedro Martinez and Pentecostal Church Freed by Jesus Christ:
Richard T. Lau & Assoc.
by Keith E. Ford, Esq.
P.O. Box 9040
Jericho, NY 11735-9040
(516) 229-6000
Betty Owen Stinson, J.
This motion by defendants St. Barnabas Hospital ("hospital"); St. Barnabas Nursing Home ("nursing home"); Loann Trinh, D.O. ("Trinh"); F. Calderon, M.D.("Calderon"), and A. [*2]Gunasekaran, M.D., s/h/a Gunasetaran ("Gunasekaran"), for summary judgment dismissing plaintiff's complaint against them is granted.
Plaintiff's deceased, Charles Bullard ("Bullard"), was visiting New York in November 1998 and reportedly missed several of his dialysis treatments. He was admitted to Lincoln Hospital, treated for pneumonia and released to St. Barnabas Nursing Home on January 12, 1999.
After Bullard's initial admission to St. Barnabas Nursing Home, he was cared for at different times by the individually-named defendants. Bullard's attending physician, Dr. Ahmad Ibrahimbacha, noted the admitting diagnosis as ESRD, sepsis, hypertension, diabetes mellitus and multiple decubiti. Two days later, Bullard was transferred to St. Barnabas Hospital because of an elevated white blood count and fever.
From January 14, 1999 until February 8, 1999, Bullard was treated at St. Barnabas Hospital. Consults with an infectious disease specialist, podiatry and vascular surgery were ordered in an effort to find the source of his infection. A sacral decubitus was infected upon admission, was debrided and otherwise treated. According to nursing notes, decubiti on Bullard's heels were classified as "black" and "eschar". Bullard was placed on a "Clinitron" bed at some point to avoid pressure on the various ulcers, given antibiotics, improved nutrition and regular dialysis. He was discharged back to the nursing home with a diagnosis of ESRD, ventilator dependency and infection.
Bullard remained in the nursing home until April 10, 1999, when he was again transferred back to the hospital due to lethargy, a yellow secretion from his tracheotomy, fever and chills. The admitting diagnosis was elevated white blood count, fever and gangrenous heel decubiti. A bilateral amputation of the legs above the knees was determined to be necessary and was performed on May 13, 1999. Bullard was discharged to the nursing home on May 27, 1999 and returned for a stump revision on June 14, 1999. He returned to the St. Barnabas Nursing Home on June 25, 1999. Eventually, he was weaned from the ventilator and feeding tube and discharged to a North Carolina nursing home on August 26, 1999. While in the nursing home in North Carolina, Bullard was transferred back and forth to hospitals for various ailments. Bullard died in North Carolina on February 28, 2003.
During his stay in the hospital, defendant Calderon, a hospital resident, saw Bullard once on January 14, 1999 after admission. Defendant Trinh, another resident, saw Bullard regularly from January 14, 1999 until February 8, 1999 when Bullard was discharged to the nursing home. Dr. Gunasetaran's name appeared once on the hospital record on January 16, 1999.
Before his death, Bullard commenced this action against the above-named defendants alleging failure to prevent bilateral heel decubiti and gangrene and failure to recognize, report and treat decubiti, leading to the amputation of both legs. The Note of Issue was filed on March 2, 2004.
By order dated January 7, 2005, this court granted summary judgment to defendants Ahmad Ibrahimbacha M.D.; George Piccorelli, M.D.; Neil Weintraub, M.D.; Kenneth Schwartz, M.D.; Victoria Bengualid, M.D.; Regina Hammock, M.D.; James Croll, M.D., and Scott Cooper, M.D., finding that Bullard's heel decubiti were present upon his initial admission to the defendant nursing home and, a day later, to the defendant hospital, so that none of the doctors treating Bullard at those institutions could have prevented the decubiti, contrary to plaintiff's allegations. This court found that all the named doctors were aware of the decubiti as part of Bullard's total [*3]medical condition, although they may not have personally noted them at the time of their examinations, either because they had already been noted by others on the medical chart, or because their particular focus was on Bullard's other acute medical problems. The evidence did not reveal any treatment which any of the doctors specifically responsible for treatment of the decubiti failed to render. Deposition testimony of the various doctors, taken together with the affidavit of their expert, demonstrated that, at the time of his admission, Bullard was bedridden, ventilator dependent, in need of regular hemodialysis, vascularly compromised, with multiple decubiti, and extremely ill. As a result of treatment by the defendants, Bullard regained responsiveness and his ability to breathe and eat on his own, and was finally well enough to be able to return to North Carolina. That same testimony and the expert's affidavit demonstrated that failure to amputate Bullard's legs below the knees would most likely have resulted in Bullard's deterioration and death. This court found that plaintiff's expert opinion to the contrary was completely conclusory, contrary to the facts in evidence and failed to specify which treatment was allegedly missing or which doctor failed to render which allegedly indicated treatment.
Following service of this court's January 7, 2005 decision, the remaining defendants, movants herein, made the instant motion for summary judgment dismissing the complaint against them based on the doctrine of issue preclusion. Movants gave as their excuse for failing to move sooner that their motion on those grounds could not have been made prior to service of this court's previous decision.
Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v Associated Fur Manufacturers, 46 NY2d 1065 [1979]). Bare conclusory assertions of an expert are insufficient to defeat summary judgment (Wright v NYCHA, 208 AD2d 327 [1st Dept 1995]). While an expert may reach conclusions in his area of expertise, he may only do so on the basis of established facts (id.).
A motion for summary judgment may not be made after 120 days of filing of the note of issue except upon good cause shown (Civil Practice Law and Rules ["CPLR"] § 3212). "Good cause" requires a satisfactory explanation for the untimeliness (Brill v City of New York, 2 NY3rd 648 [2004]). A court may search the record while considering a timely motion for summary judgment and grant it to a non-moving party if it appears the party is entitled to that relief (id.; CPLR § 3212[b]).
To make a prima facie case of medical malpractice, a plaintiff must prove that the healthcare provider departed from accepted standards of practice, thereby breaching a duty owed to the patient, and must prove that the departure alleged was a proximate cause of injury (Stanski v Ezersky, 22 AD2d 311 [1st Dept], lv to app. denied 89 NY2d 805 [1996]). A physician generally does not have a duty to involve him- or herself with aspects of the plaintiff's care unrelated to the physician's field of practice (see Yasin v Manhattan Eye, Ear and Throat Hospital, 254 AD2d 281 [2nd Dept 1998][urologist could not be charged with duty to discover plaintiff's cardiac problem]).
Hospitals are generally not liable for the actions of private attending physicians (Hill v St. [*4]Claire's Hospital, 67 NY2d 72 [1986]). The affiliation of a physician with a hospital or medical facility which does not amount to employment is not alone sufficient to impute a doctor's negligent conduct to the hospital (id.). Nurses and hospital staff are required to follow the orders of attending physicians except where those orders are "clearly contraindicated" (Toth v Community Hospital at Glen Cove, 22 NY2d 255 [1968]). A hospital can, however, be held liable for medical malpractice if it can be shown that their employees' independent departures from accepted treatment caused the plaintiff's injuries (Woodard v LaGuardia Hospital, 282 AD2d 529 [2nd Dept 2001]).
In support of their motion, moving defendants offered this court's previous decision, the deposition of Gunasekaran and the affirmation of their expert, Richard S. Blum, M.D. Gunasekaran testified that his name appeared once on Bullard's medical records on January 16, 1999 because he was the assistant attending surgeon, employed by the hospital, "on call" at the time the record was made. He had no independent recollection of having seen Bullard, the note with his name on it was not in his handwriting and the residents who examined Bullard may or may not have discussed their findings with him. They would first have discussed the case with their senior or chief resident.
Dr. Blum stated that he reviewed the relevant medical records and Bill of Particulars and, in his opinion, the decubiti on Bullard's heels were the result of his underlying medical conditions at the time he was admitted to the hospital. Those conditions included severe vascular disease and, hence, a blood and oxygen supply which was not sufficient to effectuate healing of the sores. This was aggravated by low hemoglobin secondary to chronic renal disease and low oxygen tension in the blood secondary to pneumonia. Dr. Blum stated that the treatment rendered by defendants did not deviate from accepted standards of medical care and did not cause Bullard's injuries. The amputation of Bullard's legs was necessary because the non-healing and continuously worsening condition of the heel decubiti posed a significant risk to Bullard's life. In a supplemental affirmation, Dr. Blum stated there was no definitive treatment that any of the defendants could have used to prevent the need for amputation of Bullard's legs. Once the skin of Bullard's heels had begun to break down, as was already the case upon admission to the hospital, given his other chronic health conditions, the breakdown was virtually impossible to stop or reverse. Dr. Blum also emphasized that decubiti did not cause vascular disease, as plaintiff's expert seems to suggest.
In opposition to the motion, plaintiff offered the affirmation of an unidentified expert who stated that he reviewed Bullard's relevant medical records and "portions of depositions" and concluded that the care rendered by moving defendants Trinh and Calderon represented deviations from accepted and proper medical standards and constituted a proximate cause and substantial factor in causing the amputations of both Bullard's legs on May 13, 1999. Plaintiff's expert conceded that the medical records show Bullard's heel decubiti were present on admission to St. Barnabas Hospital on January 12, 1999. He conceded that Gunasekaran testified he had no recollection of seeing or treating Bullard. He conceded that the nurses recorded the stage and size of the ulcers. The expert, however, concluded that, if the defendants were unaware of Bullard's heel decubiti, it was because, either they did not read the medical chart, or did not see the sores; and this constituted a deviation from accepted medical practice. If, on the other hand, they did see the decubiti and failed to record what they saw and render treatment, this constituted [*5]a deviation from accepted medical care. The expert stated that "delay" in treatment deprived Bullard of any chance to prevent the death of tissues, cutting off their blood supply and bringing about the amputations.
Moving defendants have demonstrated their entitlement to summary judgment which plaintiff has not refuted with admissible evidence. Plaintiff has not shown what the individual moving defendants, as agents of the hospital or nursing home, could have done or did not do to treat Bullard's heel decubiti and avoid the necessity of amputation. Plaintiff merely speculates that they did not see the sores or failed to record them in the record if they did see them, despite the fact the sores had been noted in the record since the time of admission. This court found in its previous decision that heel decubiti were present at admission, that there was no delay in treatment of the decubiti, that the treatment provided was appropriate and that there was no deviation in accepted medical practice by any of the attending physicians. Unchallenged evidence offered by the physicians who were actually responsible for treatment of the sores, discussed at length in this court's previous decision and supported by expert opinion, demonstrated that there was no additional appropriate treatment that could have been provided for Bullard's heel sores. Plaintiff's expert's opinion to the contrary is completely conclusory, contrary to the facts in evidence, and fails to specify which treatment was allegedly missing (see Wright, 208 AD2d 327). Instead, plaintiff's expert merely offers a list of possible treatments associated with decubiti without discussing under what circumstances, if ever, the various suggested treatments were indicated. Even if some other treatment were a possibility, the role of this hospital staff was to carry out the orders of the attending physicians regarding care (see Toth, 22 NY2d 255). There is no evidence and no allegations that moving defendants failed to carry out their orders. There is no evidence that any of the treatment provided was "clearly contraindicated" (see id.). There is no evidence that attending surgeon Gunasekaran ever even saw Bullard.
Given this court's findings in its previous order, summary judgment would have been justified in favor of the defendant hospital and nursing home at the time the first decision was rendered, since their only possible liability was vicarious in nature (see CPLR § 3212[b]). For that reason, this court finds the moving defendants' motion based on issue preclusion would not have been possible until that time and could not have been made until defendants became aware of the court's findings upon service of the previous decision. That, taken together with the demonstrably meritorious nature of the motion, constitutes a satisfactory explanation for the untimeliness and amounts to "good cause shown" (see Brill, 2 NY3d 648).
The action is, therefore, dismissed as to defendants hospital, nursing home, Trinh, Calderon and Gunasekaran. Movants are directed to serve a copy of this order on the Clerk of Court who shall enter judgment dismissing the plaintiff's complaint in its entirety.
This constitutes the decision and order of the court.
Dated: April 26, 2005
Bronx, New York
_______________________________
Betty Owen Stinson, J.S.C..
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