Malebranche v Sunnyview Rehabilitation Hosp.
Annotate this CaseDecided on June 6, 2006
Supreme Court, Schenectady County
Roger Malebranche M.D. and DONNA MALEBRANCHE, his wife, Plaintiffs,
against
Sunnyview Rehabilitation Hospital, SHELDON STAUNTON M.D., RICHARD B. BROOKS M.D., MARK BLAKESLEE D.O., NEUROLOGICAL ASSOCIATES OF NORTHEASTERN NEW YORK, P.C., ELLIS HOSPITAL, Defendants.
2002-2310
APPEARANCES:
Rosenblum, Ronan, Kessler & Sarachan LLP
For Plaintiffs
110 Great Oaks Boulevard
Western Avenue at the Northway
Albany, NY 12203
Thorn, Gershon, Tymann & Bonanni, LLP
For Defendant Ellis Hospital
5 Wembley Court, New Karner Road
Albany, NY 12212-5054
D'Agostino, Krackeler, Baynes & Macguire PC
For Defendants Sunnyview Rehabilitation Hospital, Sheldon B. Staunton MD, Richard B. Brooks MD, Mark A. Blakeslee DO, and
Neurological Associates of Northeastern New York
The Sage Mansion
16 Sage Estate
Menands, NY 12204
Vincent J. Reilly, J.
On June 2, 2000, plaintiff Roger Malebranche (hereinafter plaintiff) went to the
emergency room of defendant Ellis Hospital complaining of left arm weakness and slurred
speech. An MRI performed at Ellis revealed that plaintiff had suffered a small brain stem stroke
and he was admitted for treatment under the neurological care of defendant
Neurological Associates of Northeastern New York and defendant neurologists Sheldon
Staunton, Richard Brooks and Mark Blakeslee. On June 5, 2000, plaintiff reported increased left
side weakness and underwent a second MRI which revealed that plaintiff had suffered a stroke
extension. Plaintiff's condition improved after intravenous treatment with Heparin, a blood
anticoagulant, and he was ultimately transferred to defendant Sunnyview Rehabilitation Hospital
for rehabilitation on June 8, 2000.
However, in the early morning of June 9, 2000, plaintiff complained of worsening symptoms and was examined by Sunnyview's attending physician between 8:00 a.m. and 9:00 a.m. Between 9:00 a.m. and 10:00 a.m. the attending physician contacted one of plaintiff's treating neurologists, defendant Richard Brooks, who recommended a stat MRI to rule out the progression of plaintiff's stroke. Although plaintiff's Sunnyview records indicate that the attending physician ordered a "stat" MRI to be performed at Ellis' MRI Center, Ellis' records indicate that a routine MRI was ordered at 12:04 p.m. and performed at 12:45 p.m. The MRI results showed that plaintiff had suffered another stroke extension and he was transferred back to Ellis where he again received intravenous Heparin therapy and gradually improved.
Plaintiff, and his wife derivatively, thereafter commenced this medical malpractice action alleging that defendants were negligent in delaying the diagnosis and treatment of his stroke extensions, in continuing to administer his high blood pressure medication which increased the likelihood of a stroke extension, in failing to timely commence Heparin treatment and in failing to promptly perform a stat MRI on June 9, 2000. Issue has been joined, substantial discovery has been conducted and trial is schedule to commence on July 24, 2006. Ellis now moves for summary judgment dismissing the complaint on the ground that none of its employees deviated from the accepted standard of care in rendering treatment to plaintiff. Defendants Sunnyview Hospital, Neurological Associates of Northeastern New York Sheldon Staunton, Richard Brooks and Mark Blakeslee (hereinafter collectively referred to as defendant neurologists), collectively move for summary judgment dismissing the complaint against then or, alternatively, striking the informed consent theory of liability that plaintiffs raised for the first time in their January 2006 supplemental bill of particulars. Plaintiffs oppose both motions and cross moves for summary judgment on the issue of liability and for leave to serve an amended complaint asserting a cause of action for lack of informed consent. Plaintiffs also move for permission to correct a typographical error in the supplemental bill of particulars and to compel the further depositions of two Sunnyview employees. Defendants oppose plaintiffs' motions and cross motions.
Initially addressing plaintiffs' cross motion to amend the complaint, plaintiff seeks to add a new cause of action alleging that defendants failed to obtain his informed consent before they continued to administer the daily hypertension medication that he had been taking prior to his hospitalization. According to plaintiff's expert, the hypertension medication reduced plaintiff's auto regulation of blood pressure and cerebral blood pressure, thus increasing the risk that plaintiff would suffer a stroke extension. Plaintiff avers that if he had been informed of this risk, [*2]he would have declined all hypertension medication during his hospitalization and stroke treatment. Plaintiffs first attempted to assert this new cause of action in their January 2006 supplemental bill of particulars but defendants objected, prompting plaintiffs to file the present motion to amend the complaint on or about April 28, 2006.
Although leave to amend a pleading is usually freely granted in the exercise of the Court's discretion, it would be improvident for the Court to grant leave to amend if significant prejudice to the nonmoving party would result or if the amendment plainly lacks merit (see, CPLR 3025 [b]; Adirondack Combustion Technologies v Unicontrol, 17 AD3d 825; Miller v Goord, 1 AD3d 647; Edenwald Contr. Corp. v City of New York, 60 NY2d 957; Moon v Clear Channel Communications, 307 AD2d 628). Moreover, "[w]hen such motions are made on the eve of trial, as was the motion at issue here, the court must be especially cautious in the exercise of its discretion, granting the motion only where the movant has submitted a reasonable excuse for the delay" (Schwab v Russell, 231 AD2d 820, 821).
Here, plaintiffs utterly fail to provide any explanation for the more than three-year delay in asserting the informed consent cause of action. Furthermore, defendants would be severely prejudiced by the belated amendment inasmuch as substantial discovery has been conducted without even a passing reference to the informed consent claim and plaintiffs have filed their note of issue indicating that they are prepared to proceed to trial, which is scheduled to commence shortly. Although issues relating to plaintiffs' hypertension medications were briefly explored during discovery, they were discussed in the context of the medical malpractice claim rather than in the context of an informed consent claim, which is a distinct cause of action requiring proof of facts not contemplated by an action based upon malpractice (see, Parese v Shankman, 300 AD2d 1087; Jolly v Russell, 203 AD2d 527). Under these circumstances, the motion to amend the complaint to add a cause of action for lack of informed consent must be denied (see, Smith v Bessen, 161 AD2d 847).
Turning to defendants' respective motions for summary judgment dismissing the complaint, Ellis' alleged liability is premised upon the alleged negligence its employee physician assistants and nursing staff. In order to demonstrate its entitlement to summary judgment, Ellis must submit expert affidavits, sworn testimony and/or medical records which rebut plaintiffs' claims of negligence with factual proof that its employees did not deviate from accepted standards of care (see, Hranek v United Methodist Homes of the Wyoming Conf., 27 AD3d 879; Hoffman v Pelletier, 6 AD3d 889; Suib v Keller, 6 AD3d 805). Ellis satisfied this burden with a prima facie showing that its nursing staff and physician's assistants provided appropriate care to plaintiff, timely performed the MRI on June 9, 2006 and properly administrated medications in accordance with physician directives. Notably, Ellis' evidence establishes its nursing staff and physician's assistants were not authorized to make any independent decisions regarding plaintiff's treatment or medications and provided plaintiff with treatment only in accordance with the instructions furnished by plaintiff's treating physician and neurologists (see, Turcsik v Guthrie Clinic, 12 AD3d 883).
Ellis having satisfied its initial burden on the motion, plaintiffs must raise a triable issue of fact with expert medical opinions that establish a departure from accepted medical practice and a causal nexus between the alleged malpractice and plaintiff's injury (see, Chase v Cayuga [*3]Med. Cent. at Ithaca, 2 AD3d 990). Plaintiffs' medical evidence in this regard consists of the affidavits of plaintiff, who is a board-certified surgeon, and an unidentified neurologist.Initially, the Court rejects that notion that plaintiff should be disqualified from providing an expert opinion on his own behalf simply by virtue of his interest in the outcome of this action (see, Zinn v Jefferson Towers, 14 AD3d 398; Hirschfield v IC Securities, 132 AD2d 332, appeal dismissed 72 NY2d 841). Plaintiff's status as an interested witness merely relates to the weight to be given his testimony and not to his qualifications as medical expert.
Nevertheless, the Court finds that the affidavits of plaintiff and the unidentified neurologist are substantively insufficient to defeat summary judgment as to Ellis. The affidavits address only the treatment errors allegedly made by defendant neurologists and Sunnyview's nursing staff. Inasmuch as the expert affidavits fail to identify any specific act of negligence attributable to a particular member of Ellis' nursing or physician's assistant staff, they are patently insufficient to rebut Ellis' proof (see, Roberts v El-Hajal, 23 AD3d 733; Chase v Cayuga Med. Cent. at Ithaca, supra). Accordingly, Ellis' motion to dismiss the complaint against it is granted. This determination requires the denial of plaintiffs' cross motion for summary judgment on the issue of liability against Ellis, and renders moot plaintiffs' motion to amend its supplemental bill of particulars to correct an alleged typographical error concerning the allegations against Ellis.
The Court next addresses the defendant neurologists' motion for summary judgment dismissing the complaint against them and plaintiffs' cross motion for summary judgment on the issue of liability against said defendants. Plaintiffs and defendant neurologists submit conflicting medical expert opinions on the issue of whether defendant neurologists deviated from the requisite standard of care in treating plaintiff and whether any such deviation contributed to plaintiff's failure to achieve a better outcome from his stroke. It is well settled that conflicting medical opinions in a medical malpractice action create a credibility question for the jury to resolve, precluding summary judgment in favor of either party (see, Benfer v Sachs, 3 AD3d 781; Toomey v Adirondack Surgical Assoc., 80 AD2d 754; Cromarty v Hamoud, 278 AD2d 691; Provost v Hassam, 256 AD2d 875). Given the numerous contradictions in the evidence presented, summary judgment in favor of any of these parties is inappropriate.
Finally turning to plaintiffs' cross motion to compel further deposition testimony, plaintiffs seek to further depose Sunnyview nurses Barbara Hallett and Michalinda Hudson on the ground that defense counsel improperly directed them not to answer questions at their original depositions. Specifically, plaintiffs contend that defense counsel improperly directed Hallett not to respond to the question, "And would it have been a deviation from good nursing practice not to report [plaintiff's] change of increased weakness on the left side back to a medical doctor?" As a basis for the objection, defense counsel reasoned that Hallett had not characterized plaintiff's increased weakness as a "change" in his condition. However, Hallett specifically stated during her deposition that increased weakness "could definitely be a change". Accordingly, plaintiffs, at their own expense, are permitted to further depose Hallett for the purpose of eliciting a response to this question.
As for plaintiffs' request to further depose nurse Hudson, defense counsel prevented Hudson from answering the question, "could the possibility that a patient's stroke be progressing be ruled out by a telephone conversation with a doctor over the phone?" The Court agrees with [*4]defense counsel that this question was improper because Hudson, as a registered nurse, was not qualified to testify as to how a medical doctor would view plaintiff's symptoms. Accordingly, the Court declines to direct Hudson to submit to a further deposition.
For the foregoing reasons, it is
ORDERED that defendant Ellis Hospital's motion is granted, without costs, and the complaint is dismissed against said defendant, and it is further
ORDERED that the motion for summary judgment by defendants Sunnyview Rehabilitation Hospital, Sheldon B. Staunton MD, Richard B. Brooks MD, Mark A. Blakeslee DO, and Neurological Associates of Northeastern New York is denied, without costs, and it is further
ORDERED that plaintiffs' cross motion is denied, with costs, except insofar as plaintiffs, at
their own expense, are permitted to conduct a further deposition of Barbara Hallett consistent
with this Court's decision.
THIS DECISION SHALL CONSTITUTE THE ORDER OF THE COURT.
THE ATTORNEYS FOR DEFENDANT ELLIS HOSPITAL SHALL ENTER
THIS ORIGINAL DECISION/ORDER WITHIN 20 DAYS OF ITS DATE AND PROVIDE A
COPY WITH PROOF OF ITS ENTRY ON THE OPPOSING ATTORNEY(S) OR THE PRO
SE LITIGANT(S), AS THE CASE MAY BE.
Dated: June 6,
2006
_______________________________
HON. VINCENT J. REILLY JR.
Supreme Court Justice
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