Dispigno v Berroya

[*1] Dispigno v Berroya 2006 NY Slip Op 51083(U) [12 Misc 3d 1166(A)] Decided on June 7, 2006 Supreme Court, Nassau County Robbins, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 7, 2006
Supreme Court, Nassau County

Rosemarie Dispigno and Vito Dispigno, Plaintiffs,

against

Renato B. Berroya, LONG ISLAND SURGICAL SPECIALISTS, P.C., EUGENE W. SEGALL, and ST. FRANCIS HOSPITAL, Defendants.



7209/04

Tammy S. Robbins, J.

Defendants RENATO B. BERROYA, LONG ISLAND SURGICAL SPECIALISTS,P.C., EUGENE W. SEGALL, and ST. FRANCIS HOSPITAL NASSAU HEALTH CARE CORPORATION has moved this court, pursuant to CPLR § 3212 for an order granting summary judgment to defendants. Plaintiffs have submitted an Affirmation in Opposition. This decision references the affirmation of Eric S. Strober (herein Strober Aff.) and the affirmation of Robert B. Jackson (herein Jackson Aff.).

This is a personal injury action sounding in medical malpractice. The plaintiff Rosemarie Dispigno (referred to herein as "the plaintiff") had a medical history of congestive heart failure, uncontrolled diabetes, spinal stenosis, hypertension, hypothyroidism, peripheral neuropathy, peripheral vascular disease and hypercholesterolemia. In August of 1999, she underwent a triple bypass at St. Francis Hospital. In April of 2000, the plaintiff underwent cardiac catheterization at St. Francis Hospital. On July 6, 2000, the plaintiff underwent a left-sided carotid (a major artery in the neck that supplies blood to the brain) endarterectomy (a surgical procedure designed to clean out material occluding an artery, done on the carotid, to restore normal blood flow). Defendant Dr. Renato Berroya performed the surgery at defendant St. Francis Hospital. In December of 2000, January of 2001 and February of 2001, the plaintiff received steroid injections for spinal stenosis. In November of 2001, the plaintiff underwent a second carotid endarterectomy, this time on her right side, performed by Dr. Renato Berroya at St. Francis Hospital. Dr. Eugene Segall performed general anesthesia.

As a result of the second carotid endarterectomy, performed on the right side ("the surgery"), plaintiff alleges that she sustained numerous injuries. On May 24, 2004, plaintiff commenced this medical malpractice action by filing and serving upon defendant her Summons and Complaint alleging that the named defendants were negligent in her care and treatment, that [*2]there was a lack of informed consent, and that plaintiff's husband suffered loss of services. Plaintiff claims all these actions or omissions of defendants resulted in her sustaining injury. It is not disputed that plaintiff was known to be allergic to penicillin at the time the surgery was performed.

Defendants' Motion - The Administration of Kefzol

Defendants now move for summary judgment alleging that Dr. Segall was not negligent when he administered the antibiotic Kefzol to the plaintiff. Defendants provide the affidavit of Dr. Bluth, a board certified anesthesiologist who states that the administration of Kefzol was not a departure from good and accepted practice. Defendants contend that even if the plaintiff had an allergic reaction to Kefzol, this did not cause the claimed injuries.

Defendants' Motion - The Carotid Endarterectomy

Additionally, defendants argue that plaintiff's injuries were not the result of the carotid endarterectomy. Defendants offer the affidavits of Dr. Vishnubhakat, a neurologist, and Dr. Myssiorek, an ENT. Dr. Myssiorek states that plaintiff's complaints following the second carotid endarterectomy are not consistent with an injury to the hypoglossal nerve or an allergic reaction. Dr. Myssiorek states that plaintiff's complaints and symptoms are consistent with an organic process unrelated to and predating her surgery. Dr. Vishnubhakat states that the plaintiff does not suffer from the injuries claimed to have been caused by the surgery. He states that the plaintiff's neurological examination post operatively was within normal limits, and there was no evidence of adverse neurological or other adverse sequelae attributable to the surgery.

Defendants' Motion - Informed Consent

As to plaintiff's lack of informed consent claim, defendants maintain that according to the affidavit of Dr. Vishnubhakat, Dr. Berroya communicated to the plaintiff the reasonably foreseeable risks, benefits and alternatives that a reasonable physician would disclose prior to carotid endarterectomy surgery. Defendants state that the plaintiff herself testified that she readily accepted the risks of a stroke, brain damage and death in consenting to the surgery and that there was no alternative to the surgery.

Plaintiffs' Opposition- The Administration of Kefzol

Plaintiffs argue that the plaintiff Rosemarie Dispigno suffered injury as a result of the administration of Kefzol. First, plaintiffs claim that according to the defendants own testimony, there was a departure from the accepted standards of care by administering the Kefzol. Plaintiffs state that Dr. Segall testified that he was aware that plaintiff was allergic to penicillin, that individuals with such allergies can have cross-over reactions to Kefzol, and that he would not have given the plaintiff Kefzol without first discussing it with Dr. Berroya.. However, Dr. Segall testified that he could not recall having a discussion with Dr. Berroya or whose idea it was to administer the Kefzol. Dr. Berroya documented plaintiff's allergic reaction. Plaintiffs argue that Dr. Berroya had an affirmative obligation to be aware of and to approve the medications given to the patient.

Secondly, plaintiffs contend that although defendants argue that the allergic reaction was not due to Kefzol, the signs and symptoms of plaintiff's allergic reaction were documented in the records of St. Francis Hospital. Plaintiffs contend that defendants have not offered any alternative causes for the signs or symptoms of plaintiff's allergic reaction. Plaintiff's refer to defendants' expert affidavit of Dr. Bluth who states that even if there was an allergic reaction, it [*3]would have been a transient event with no permanent adverse medical effects. Plaintiffs contend that this statement merely points to the duration or the severity of the injuries sustained, where the issue is whether the plaintiff sustained any injury as a result of the allergic reaction. Plaintiffs argue that Dr. Bluth's statement directly contradicts defendants' grounds for summary judgment in that defendants contend that the plaintiff did not suffer any injury as a result of the Kefzol.

Next, plaintiffs refer to the defendants' expert Dr. Myssiorek who states that the injuries sustained by the plaintiff are not the result of receiving Kefzol but rather are due to an underlying disease pathology which predated the surgery. There are no medical records submitted in support of this theory and there are no reports from medical practitioners diagnosing or suspecting a diagnosis of this underlying disease pathology. Additionally, plaintiffs' observe that the notes of Dr. Mra, an ENT who evaluated plaintiff in the hospital three days after the surgery, indicates that there was an anterior tongue edema. Dr. Mra also noted that she suspected the cause of the patient's complaints to be an allergic reaction to Kefzol. Plaintiffs' conclude that the affidavits of their experts Dr. Katz and Dr. Schwartz along with the medical records, Dr. Mra's observations, and the defendants' own testimony all support the finding that the defendants departed from the accepted standards of care by administering Kefzol which resulted in injury to the plaintiff.

Plaintiff's Opposition-The Carotid Endarterectomy

Plaintiffs' maintain that the patient's symptoms of slurred speech and difficulty swallowing as noted by St. Francis Hospital records after the surgery is consistent with a cranial nerve XII injury. Plaintiffs' expert claims that Dr. Berroya made numerous departures from accepted standards of practice in performing plaintiff's surgery (see Jackson Aff. Exhibit L). Dr. Schwartz finds that Dr. Berroya failed to connect the patient to an electroencephalograph while she was under general anesthesia, failed to have a second surgeon trained in the procedure present or available, failed to have the nursing staff place folded towels between the patient's shoulder blades to facilitate extension of the neck in preparation for the first incision, failed to hyperextend the patient's neck to facilitate exposure of the carotid artery, failed to perform preoperative angiography to determine the relationship of the external and internal carotid arteries, or the location of the carotid bifurcation, failed to identify and mobilize the hypoglossal nerve, failed to visualize and palpate the carotid artery, failed to draw the proposed arteriotomy line along the vessel, failed to document the surgery done to obtain the saphenous vein to create a vein patch, and failed to test the patency of the repair with a Doppler (Id.). Plaintiffs contend that Dr. Berrayo failed to fully identify structures, particularly the cranial nerve XII. As a result he blindly operated and severed the hypoglossal nerve during the surgery causing permanent injury to plaintiff.

Plaintiff's Opposition- Informed Consent

Dr. Berrayo testified as follows:

When you start exposing the carotid artery,

you see the hypoglossal nerve. If it's a normal

location, you just kind of point it out to your

assistants, don't go there, it's right there.

Usually it's exactly where it is. It's very unusual

if it's located elsewhere...It usually crosses over

the external carotid artery ... it's way out of your [*4]

field at that point

(Strober Aff. Exhibit E). Plaintiffs' expert Dr. Schwartz states that the hypoglossal nerve is well within the operative field when surgery of this type is performed (see Jackson Aff. Exhibit L). Dr. Schwartz contends that his assertion is supported by Dr. Berroya's own statement that he visualizes the nerve during his exposure of the carotid artery (Id.). As well, Dr. Schwartz states that his view is supported by the anatomical literature which repeatedly and consistently describe cranial nerve XII as traveling in close contiguity with the internal carotid artery (Id.). Plaintiffs' contend that Dr. Berrayo could not have fully informed the plaintiff of the risks of the operation, specifically the risk of damage to her hypoglossal nerve, since he did not feel that the hypoglossal nerve was within the operative field.

Additionally, plaintiffs argue that Dr. Berroya failed to adequately discuss alternatives to the surgery performed. Although he told the plaintiff about the alternative of using a stent, he also stated that this procedure was still experimental and that he told the plaintiff that his preference was the surgery which was actually performed (see Strober Aff Exhibit E). Plaintiffs' argue that this form of disclosure failed to comply with the guidelines contemplated by § 2805-d of the Public Health Law.

Decision

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Winegrad v New York University Medical Center, 64 NY2d 851

citing Zuckerman v City of New York, 49 NY2d 557). Failure to make such showing

requires denial of the motion, regardless of the sufficiency of the opposing papers (Id.). The court must view the evidence in the light most favorable to the non-moving party and must give the non-moving party the benefit of all reasonable inferences which can be drawn from the evidence (see Negri v. Stop and Shop, 65 NY2d 625). "The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damage" (Wicksman v Nassau County Health Care Corp., et al., 27 AD3d 644 citing Anderson v Lamaute, 306 AD2d 232; DiMitri v Monsouri, 302 AD2d 420; Holbrook v United Hosp. Med. Ctr., 248 AD2d 358).

The Administration of Kefzol

In support of their motion, defendants submitted the affidavit of Dr. Bluth who states that the use of Kefzol was not a departure from accepted standards of anesthesia practice (see Strober Aff. Exhibit G). Dr. Bluth explains that the plaintiff was documented to have an allergy to penicillin and that it is claimed that Dr. Segall should not have used Kefzol, a prophylactic infection control during surgery (Id.). Dr. Bluth explains that this assertion is incorrect. He affirms that under appropriate monitoring, which was done in this case, and when given in the appropriate dosage, as was done in this case, it is not a departure from accepted standards of anesthesia practice (Id.). Dr. Bluth states that Dr. Segall titrated the dose and maintained careful monitoring of the plaintiff at all times during the administration of the Kefzol with no adverse reactions (Id.). Dr. Bluth states that his review of the medical records indicate that there were no resulting adverse reactions and the onset of swelling of the tongue is not indicative of a reaction to the intra-operative antibiotic Kefzol (Id.). Defendants have made a prima facie showing [*5]through their expert's affidavit entitling them to summary judgment as a matter of law with regard to the administration of Kefzol.

"In medical malpractice actions, a plaintiff opposing a defendant physician's summary judgment motion must submit material or evidentiary facts to rebut the physician's prima facie showing that he or she was not negligent in treating the plaintiff" (see Jonassen v Staten Island University Hospital, 22 AD3d 805 quoting, DiMitri v Monsouri, 302 AD2d 420). In opposition to the motion, plaintiffs submit the affidavits of two experts, Dr. Katz and Dr. Schwartz. Dr. Katz states that the plaintiff suffered an allergic reaction "due to the administration of a penicillin cross sensitive antibiotic, Kefzol, which was given despite Mrs. Dispigno's sensitivity or allergenicity to penicillin" (see Jackson Aff. Exhibit K). Dr. Schwartz, who did not examine the patient, refers to the examinations of plaintiff done by other doctors and experts and the medical records of plaintiff wherein the patient was noted to have an allergic reaction that caused acute angioedema as well as swelling of the tongue, the mucous membranes of the nose, mouth, and throat, and the face. Dr. Schwartz opines that Kefzol was contraindicated for the plaintiff and that the administration of Kefzol caused her to suffer injury (Id. at Exhibit L). Dr. Schwartz states that it is not standard practice to give an antibiotic during a carotid endarterectomy.

In support of their opposition, plaintiffs refer to the deposition testimony of Dr. Segall and Dr. Berrayo. Both doctors admit that before administering the Kefzol they were aware that the plaintiff was allergic to penicillin (see Strober Aff. Exhibit E, Exhibit F). Dr Segall admitted that he was aware that individuals who are allergic to penicillin can also have a similar allergic reaction to Kefzol (Id.). Additionally, Dr. Segall indicated that Vancomycin is an antibiotic frequently used which is not contraindicated for individuals who have penicillin allergies (see Strober Aff. Exhibit F). Dr. Segall also stated that he routinely discusses the administration of the antibiotic with the surgeon (Id.).

The expert opinions offered by the parties differ as to whether the Kefzol was contraindicated. When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution" (see Shields v. Bavtidy, 11 AD3d 671 citing Barbuto v. Winthrop Univ. Hosp., 305 AD2d 623; Fotinas v. Westchester County Med. Ctr., 300 AD2d 437). This court finds that factual issues exist as to whether the administration of Kefzol was contraindicated and whether the administration of the Kefzol caused injury to the plaintiff (see Rivera v Macaluso, 209 AD2d 679). Defendants' motion for summary judgment as to the claim arising out of the administration of Kefzol is denied.

The Carotid Endarterectomy In support of their motion, defendants have submitted the expert affidavit of Dr.

Vishnubhakat who is board certified in neurology with a subcertification in neurophysiology (see Strober Aff. Exhibit I). After a full neurological examination of the plaintiff relative to her complaints and after a review of the medical records, Dr. Vishnubhakat concludes that the plaintiff is not suffering from any sequelae from her carotid endarterectomy surgery and that her complaints are not consistent with a trauma to the hypoglossal nerve or an allergic reaction to an antibiotic (Id.).

Defendants also offer the affidavit of Dr. Myssiorek, board certified in Otolaryngology, who examined the plaintiff, took her medical history, and reviewed all of her medical records (see Strober Aff. Exhibit H). Dr. Myssiorek states that the signs and symptoms about which the [*6]plaintiff complains are not related to the surgery (Id). More significantly, Dr. Myssiorek continues, the symptoms are continuing to worsen over time and are not consistent with intraoperative trauma to the hypoglossal nerve or an allergic reaction to antibiotic (Id.). The symptoms, he concludes, are a result of an underlying disease pathology that predated the surgery giving rise to this litigation (Id.). Plaintiffs contend that Dr. Myssiorek's finding of other disease pathology is not supported with substantial evidence. However, Dr. Myssiorek both examined the plaintiff and took her medical history; an expert's conclusions may be based on an examination of the patient or on the patient's medical history (see Davis v Pimm, 228 AD2d 883). As to the carotid endarterectomy claim and the resulting hypoglossal nerve injury, defendants have presented a prima facie showing through their expert physicians' affidavits entitling them to summary judgment as a matter of law.

In opposition, plaintiffs' offer the affidavits of Dr. Katz and Dr. Schwartz. Dr. Katz states that the plaintiff was admitted to South Nassau Communities Hospital within a month of the surgery with what was diagnosed as hypoglossal nerve injury with dysarthria related to the right endarterectomy (Id). Dr. Katz concludes that with a reasonable degree of medical certainty that the plaintiff's decreased mobility, decreased strength of the tongue, sensitivity on the right greater than the left, and the lateralization of the tongue to the right side on projection are the result of a hypoglossal nerve impairment sustained during the right endarterectomy (see Jackson Aff. Exhibit K). Dr. Katz's affidavit is insufficient to rebut defendants' prima facie showing, as he does not offer any opinion as to the surgical procedures performed by Dr. Berrayo and, he does not offer an opinion as to whether the procedures employed by Dr. Berrayo deviated from the accepted standards of medical practice in his treatment of the plaintiff.

Plaintiffs' other expert, Dr. Schwartz describes numerous deviations made by Dr. Berrayo in conducting the surgery (see Jackson Aff. Exhibit L). Specifically, Dr. Schwartz states that Dr. Berrayo failed to connect the patient to an electroencephalograph, failed to have a second surgeon trained in the procedure present or available, failed to hyperextend the patient's neck to facilitate exposure of the carotid artery, failed to perform preoperative angiography, failed to identify and mobilize the hypoglossal nerve, failed to visualize and palpate the carotid artery, failed to draw the proposed arteriotomy line along the vessel, failed to document the surgery done to obtain the saphenous vein to create a vein patch, failed to test the patency of the repair with a Doppler and failed to fully identify structures (Id.). Although not all of the claimed departures can be deemed to have proximately caused plaintiff's injuries, Dr. Schwartz does opine that Dr. Berrayo failed to fully identify structures, particularly the cranial nerve XII which resulted in him blindly operating and severing the hypoglossal nerve causing permanent injury to plaintiff (Id.).

Defendants argue that Dr. Schwartz is an internist, not a vascular surgeon and therefore he is not qualified to give an opinion and critique the procedure used by Dr. Berroya. Defendants also criticize plaintiffs' use of Dr. Katz to claim a nerve injury. In Erbstein v Savasatit, supra defendant moved for summary judgment and submitted the affidavit of a general surgeon which stated that he did not deviate from good and accepted standards of medical practice in his treatment of the patient/decedent. In response, plaintiff submitted an expert affidavit of a pathologist. The Supreme Court denied the defendant's motion based on a finding that the expert affidavits had raised a triable issue of fact as to whether the defendant had departed from the [*7]proper standards of medical care (Id.). The Second Department found that the "contention that the plaintiff's expert was unqualified to give an expert opinion on the standard of care of a general surgeon merely because he was a pathologist is without merit"(Id.). The court held that

Once a medical expert has established his or her

knowledge of the relevant standards of care, he

need not be a specialist in the particular area at

issue to offer an opinion. Any lack of skill or

expertise goes to the weight of his or her opinion

as evidence, not its admissibility

(Id., citing Adamy v Ziriakus, 92 NY2d 396; Julien v Physician's Hosp., 231 AD2d 678; Ariola v Long, 197 AD2d 605). In the case before this court, the plaintiffs' expert, Dr. Schwartz, affirms that he has been in active practice of Internal Medicine for more than thirty five years, he is experienced in hospital risk management and in the diagnosis and treatment of patient's with cranial nerve impairments (see Jackson Aff. Exhibit L). Given the fact that "[t]he law is settled that a physician need not be a specialist in a particular field in order to qualify as a medical expert" and render an opinion, defendants' arguments as to plaintiffs' expert is without merit (see Bodensiek v Schwartz, 292 AD2d 411 citing Erbstein v Savasatit, supra ; Gordon v Tishman Constr. Corp., 264 AD2d 499; Julien v Physician's Hosp., supra ). Accordingly, plaintiffs' have met their burden of rebutting defendants' prima facie showing and summary judgment as to the malpractice claim resulting from the carotid endarterectomy is denied.

Informed Consent

A Defendant is required to present evidence "demonstrating that the plaintiff signed a consent form after being informed of the surgical procedure and the alternatives, as well as the reasonably foreseeable risks and benefits" (Ericson v. Palleschi, 2005 WL 3193694 citing Bernard v. Block, 176 AD2d 843). Defendants have established that Dr. Berroya provided plaintiff with sufficient information as to the available alternative to the procedure such that her consent can be said to have been informed (Velez v Goldenberg, - - - NYS2d - - -, 2006 WL 1343615 citing Eppel v Fredericks, 203 AD2d 152). The only alternative available at the time was a stent procedure with which Dr. Berroya was very familiar since he was one of the directors of the two experimental programs being conducted in the United States and Canada (see Strober Aff Exhibit E). Furthermore, plaintiff had undergone this surgery before and she admitted that both times she was informed of the risk of stroke.

Plaintiffs argue that Dr. Berroya failed to disclose all the material risks which a reasonable medical practitioner "under similar circumstances would have disclosed, in a manner permitting [the plaintiff] to make a knowledgeable evaluation" (see Davis v Nassau Ophthalmic Services, P.C., 232 AD2d 358). To refute defendants' prima facie showing as to the informed consent claim, the plaintiff is required to submit an affirmation from a medical expert (Ericson v. Palleschi, supra citing Wilson v. Buffa, 294 A.D2d 357). Plaintiffs have provided expert medical testimony alleging that the consent was qualitatively insufficient based on Dr. Berroya's view that the hypoglossal nerve was not within the operating field. Plaintiffs claims that because of Dr.Berrayo's view with regard to hypoglossal nerve, he did not inform the plaintiff of all of the risks involved, specifically the risk to the hypoglossal nerve. The plaintiff herself testified that [*8]Dr. Berrayo told her about the risks, "a lot of them" including a stroke (see Strober Aff. Exhibit D). Additionally, the plaintiff stated that knowing that there was a risk of a stroke, she went forward with the surgery because "she had to" (Id.). Moreover, plaintiff testified that Dr. Berrayo gave the plaintiff written material regarding the surgery and the risks. The record before this court indicates that Dr. Berrayo disclosed the material risks, benefits, and alternatives to the surgery in a manner permitting the plaintiff to make a knowledgeable evaluation (see Public Health Law § 2805-d).

Plaintiffs additionally claim that because Dr. Berrayo stated to the plaintiff which procedure he preferred, she was not permitted to make a knowledgeable evaluation. However, Dr. Berrayo had substantial medical reasons for his preference. Providing the plaintiff with his preference was in fact providing her with knowledge to make an informed decision. The logical conclusion of plaintiffs' argument would result in patients being given information by doctors without any assistance in evaluating that information. Dr. Berrayo testified that he indicated his preference for the open procedure (the surgery) as opposed to the stent procedure "[b]ecause the stent today is still experimental procedure and the stroke rate is higher than the open technique, and we don't even know the fate of the stent in the carotid artery over a long haul since the procedure has only been done a few years, as opposed to open procedure which has been studied since 1951, so it has a long track record "(see Strober Aff. Exhibit E). Dr. Berrayo's statements to the plaintiff complied with what a reasonable medical practitioner under similar circumstances would have disclosed (see Public Health Law § 2805-d). Defendants' motion for summary judgment as to the informed consent claim is granted.

It is so Ordered.

Dated: June 7, 2006Honorable Tammy S. Robbins