Bruno v Mt. Sinai Med. Ctr.

[*1] Bruno v Mt. Sinai Med. Ctr. 2006 NY Slip Op 51699(U) [13 Misc 3d 1205(A)] Decided on June 20, 2006 Supreme Court, New York County Abdus-Salaam, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2006
Supreme Court, New York County

Rocco Bruno

against

Mt. Sinai Medical Center, et al.



104488/03

Sheila Abdus-Salaam, J.

Upon the foregoing papers, it is ordered that this motion by defendants Glenn S. Hammer, M.D. and Barbara L. Schultz, M.D. for summary judgment is denied.

This is a medical malpractice action which involves a Bentall procedure (replacement of the aorta and aortic valve) which was performed on September 15, 2000 and subsequent complications and treatment for those complications. The record shows that movants were first asked to perform consultations on

September 25, 2000. Dr. Schultz is a pulmonary specialist and Dr. Hammer is an infectious disease specialist.

In moving for summary judgment, Drs. Schultz and Hammer have submitted the affirmation of Philip Marcus, M.D. , M.P.H. The affirmation addresses the claims asserted in the bill of particulars and Dr. Marcus opines that the movants did not depart from good and accepted medical practice by failing to timely diagnose and treat the plaintiff's post-operative infection. Plaintiffs have opposed the motion through the affirmation of an expert and have raised triable issues of fact sufficient to defeat the motion. The triable issues include whether Dr. Schultz departed from good and accepted practice on September 25, 2000 when she performed a pulmonary [*2]consultation by failing " . . . to order or suggest immediate drainage of the pleural effusions and loculation, so as to increase the patient's respiratory ability and to increase his oxygen reserve" (Plaintiffs' expert's affirmation, p. 3), failing to order a chest x-ray and arterial blood gas on a stat basis, and failing to take immediate steps to drain the bilateral effusions surrounding Mr. Bruno's lungs. Plaintiffs' expert states that as a direct result of these failures, " . . . the patient went into respiratory distress, precipitating a hypotensive episode which caused the watershed infarct to this brain."(Plaintiffs' expert's affirmation, p. 5).

Regarding Dr. Hammer, the triable issues of fact include whether he departed by not immediately ordering the fluid drained from the patient's pleural spaces and a culture of that fluid, by failing to order a stat chest x-ray and an arterial blood gas, and by failing to order that a Swan Ganz catheter be inserted ". . . or at the very least, have the surgeon and/or pulmonologist notified stat."(Plaintiffs' expert's affirmation, p. 6). Plaintiffs' expert also notes that at Dr. Hammer's examination, he noted a "1+ edema over the upper ¼ of the mediastinum" and that Dr. Hammer should have had a high index of suspicion that the source of the infection was the mediastinum and departed by failing " . . . to have at least a mediastinal tube inserted, or strongly recommended mediastinal surgical exploration, to drain the mediastinal fluid which was the most likely mechanism by which the sepsis was spreading." (Plaintiffs' expert's affirmation, p. 6). Plaintiffs' expert concludes that these departures substantially contributed to the patient's injuries.

Although defense counsel has argued that plaintiffs' expert has ignored the fact that Dr. Hammer and Dr. Schultz had only limited roles as consulting physicians, plaintiffs have raised triable issues as to whether these physicians breached their duties to Mr. Bruno by failing to advise and make appropriate recommendations to the plaintiff's treating physicians (compare Aharonowicz v. Huntington Hospital, 22 AD3d 615 [2005]; Malki v. Krieger, 213 AD2d 331 [1995]). Defendants' citation to Taylor v. Methodist Hospital (6 Misc 3d 1008(A) [2004]) is unpersuasive. In Taylor, the court found that the consulting physician had not been consulted pertaining to a post-operative diagnosis and that therefore he could not be held responsible for ensuring an accurate diagnosis. Here,

Dr. Hammer and Dr. Schultz performed examinations of the patient prior to the time that the patient suffered respiratory distress which precipitated a hypotensive episode and plaintiffs claim that the departures by these physicians contributed to the injuries sustained by plaintiff.

Based upon the foregoing, the motion is denied.

Dated:6/20/06

J.S.C.

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