Dunham v Federowicz

[*1] Dunham v Federowicz 2009 NY Slip Op 50216(U) [22 Misc 3d 1121(A)] Decided on February 9, 2009 Supreme Court, Broome County Lebous, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 9, 2009
Supreme Court, Broome County

Dorothy C. Dunham, Plaintiff,

against

Stephen G. Federowicz, M.D., Tier Orthopedic Associates, P.C., and Kyung I. Kim, M.D., Defendants.



2003-0436



COUNSEL FOR PLAINTIFF:

COTE, LIMPERT & VANDYKE, LLP

BY:JOSEPH S. COTE, III, ESQ., OF COUNSEL

OFFICE & POST OFFICE ADDRESS:

214 NORTH STATE STREET

SYRACUSE, NY 13203

COUNSEL FOR DEFENDANTS:

MARTIN, GANOTIS, BROWN, MOULD & CURRIE, P.C.

BY:MARK L. DUNN, ESQ., OF COUNSEL

OFFICE & POST OFFICE ADDRESS:

5790 WIDEWATERS PARKWAY

DEWITT, NY 13214

Ferris D. Lebous, J.

Plaintiff Dorothy C. Dunham commenced this medical malpractice action against Stephen G. Federowicz, M.D., Tier Orthopedic Associates, P.C., and Kyung I. Kim, M.D., seeking to recover for damages suffered after a total left knee replacement resulted in a left above knee amputation.[FN1]

Defendants Stephen G. Federowicz, M.D., Tier Orthopedic Associates, P.C., and Kyung I. Kim, M.D, move for summary judgment dismissing the complaint arguing they were not negligent in their care and treatment of plaintiff and did not deviate from accepted standards of medical care in treating plaintiff (CPLR § 3212).

The court heard oral argument from counsel on January 16, 2009. During oral argument the court granted defendants' motion to dismiss with respect to defendant Kyung I. Kim, M.D.[FN2] As such, this Decision & Order addresses the motion relative to defendants Stephen G. Federowicz, M.D. and Tier Orthopedic Associates, P.C.[FN3]

BACKGROUND

In 2001, after many years of pain from osteoarthritis of the left knee, plaintiff, then age 78, elected to have Dr. Federowicz perform a left total knee replacement. Plaintiff's medical treatment in relation to said surgery is described in a nearly 4 inch thick hospital chart which will not be detailed herein, but the court will review the general sequence of events.

On April 25, 2001, Dr. Federowicz performed a total left knee replacement on plaintiff using a Zimmer® knee replacement kit. Dr. Federowicz's one and a half page Report of Operation states that "[t]he patient was also noted to have dusky appearing left foot. Postoperatively Doppler pulses could not be obtained in the foot but they were noted to be strong in the popliteal space and distal to the knee. Vascular consult with Dr. Bartoli was obtained and arteriogram was ordered."

More specifically, in the recovery room plaintiff's left foot was noted to have ischemic changes with her foot described as "pale and pulseless." Dr. Federowicz arranged for plaintiff to be seen by Alberto Bartoli, M.D. who found plaintiff had suffered significant arterial [*2]compromise. Thereafter, Dr. Federowicz consulted with Jeffrey Gunzenhauser, M.D. who performed a left lower extremity arteriogram, pulse spray thrombolysis, and thrombolytic infusion in an attempt to evaluate the ischemic changes in plaintiff's left lower leg. On April 25, 2001, at approximately 12:30 p.m., Dr. Gunzenhauser performed the arteriogram. Dr. Gunzenhauser's report concluded plaintiff was suffering "[o]cclusion of the left popliteal artery at the level of the distal femoral prosthesis."

Next on April 25, 2001, at approximately 1:27 p.m., Michael Bogdasarian, M.D., a vascular surgeon, was consulted by Dr. Federowicz. Dr. Bogdasarian's consultation report recommended that plaintiff needed to return for surgery to repair the vessel and indicated a plan to explore the popliteal area, with the exact nature of the repair to be dictated by the extent and nature of the injury revealed. Later that same day, at approximately 5:00 p.m., Dr. Bogdasarian performed a left distal superficial femoral artery to distal popliteal artery bypass. Dr. Bogdasarian's Report of Operation states "[a]t operation she had an injury which appeared to enter through the anterior portion of the popliteal artery and exit the posterior portion with thrombosis" (emphasis added). Plaintiff continued to suffer ischemic changes during and following this bypass surgery.

Over the next 2 ½ days, Dr. Gunzenhauser performed two arteriograms and thrombolysis on April 26, 2001, and another on April 27, 2001. These repeated efforts at thrombolysis were unsuccessful and the viability of plaintiff's left lower leg was in doubt. On April 27, 2001, a second vascular consultation was obtained with Ghassem Mangouri, M.D. who concluded that the lower leg was not salvageable. Also during this time frame plaintiff was developing progressive multi system disease. After discussions with plaintiff's family, it was determined that plaintiff's lower left leg was not salvageable and given her overall deteriorating condition, the family authorized amputation.

On April 28, 2001, a left above knee amputation was performed by Dr. Bogdasarian and the amputated limb was sent for analysis. The Pathology Report will be discussed below.

Plaintiff continued with postoperative difficulties including congestive heart failure and renal failure. Ultimately, however, plaintiff was discharged on May 17, 2001.

On February 21, 2003, plaintiff filed a summons and complaint against various medical providers involved in her surgery.

DISCUSSION

It is well-settled that "[t]he 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 demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Upon meeting this threshold, the burden shifts to the opposing party to establish "[a] departure from accepted medical practice, as well as a nexus between the alleged malpractice and plaintiff's injury (citations omitted)" (Rossi v Arnot Ogden Med. Ctr., 268 AD2d 916, 917 [*3][2000], lv denied 95 NY2d 751 [2000]). Moreover, "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician's summary judgment motion" (Alvarez, 68 NY2d at 325).

Here, defendant submits an expert affidavit from Seth Greenky, M.D., a board certified orthopedic surgeon, as well as two affidavits from Dr. Federowicz. Dr. Greenky avers that popliteal artery damage is a recognized complication of knee replacement surgery and can occur even with adherence with good and accepted surgical technique (Greenky Affidavit, ¶ 7). Dr. Greenky further opines that Dr. Federowicz's surgical technique was in keeping with good and accepted techniques and that the perforation of the vessel could not have been caused by instrumentation used during this knee replacement surgery because: (a).the pathologist does not describe any hole in the tibia bone from anterior to posterior to reach the vessel which sits behind the knee.(b).Dr. Federowicz did not use a drill to pre-drill holes in the bone for the pins used to hold the cutting jig in place.(c).The pins utilized to hold the jig in place have a stop which prevents them from completely penetrating the bone.(d).Dr. Federowicz described using an osteotome to release soft tissue from the medial side of the bone. This was an appropriate use of the instrument. The vessel is posterior and lateral to the tibia. It is my opinion expressed with reasonable medical certainty that the osteotome could not have caused the anterior to posterior perforation of the vessel described by the pathologist.(e).A retractor was used to position the tibia forward and away from the vessel. Again, it is my opinion expressed with reasonable medical certainty that the perforation was not caused by the retractor.

(Greenky Affidavit, ¶ 9).

Dr. Greenky also concludes that Dr. Federowicz properly managed plaintiff's hypertension and bleeding during surgery because although "[b]leeding was noted due to a venous tourniquet...the tourniquet was deflated during the majority of the procedure" (Greenky Affidavit, ¶ 10). Finally, Dr. Greenky opines that Dr. Federowicz properly and timely arranged for a vascular consultation. Dr. Federowicz's own submissions mirror Dr. Greenky's statements.

The court finds that defendant has met his burden by submitting proof that Dr. Federowicz's surgical management and technique employed in this case was within good and accepted medical standards. Thus, the burden shifts to plaintiff to demonstrate the existence of a triable issue of fact by submitting an expert affidavit attesting to a deviation or departure from accepted practice and containing an opinion that the defendant's acts or omissions were a competent-producing cause of the injuries of the plaintiff (LifShitz v Beth Israel Med. Ctr-Kings Highway Div., 7 AD3d 759 [2004]). [*4]

Here, as noted, plaintiffs do not argue that defendant did not make a prima facie showing of entitlement to summary judgment. Rather, plaintiff attempts to raise material questions of fact by submitting an expert's affidavit[FN4] identifying three areas of negligence by Dr. Federowicz, including perforation of the popliteal artery, failure to properly manage plaintiff's hypertension during surgery, and a delay in addressing the ischemic post operative condition of plaintiff's leg.

With respect to the perforation of the popliteal artery, plaintiff's expert identifies four ways in which this injury could occur during knee replacement surgery while identifying the guide pins and/or the predrilling used in placing them as the most likely cause of the perforation (Plaintiff's Expert's Affidavit, ¶¶ 27 & 30). Plaintiff's expert states that Dr. Federowicz must have predrilled the femur even if he did not predrill the tibia and, in any event, the use of the pins in the tibia could themselves cause injury (Plaintiff's Expert's Affidavit, ¶ 30). Plaintiff's expert also alleges that the failure of Dr. Federowicz to provide adequate detail "[a]s to the location where he employed the tools used during the procedure [makes it] impossible to precisely state the exact moment when he caused the puncture of the artery" (Plaintiff's Expert's Affidavit, ¶ 75).

Defendant argues that plaintiff's expert opinion that the popliteal vessel may have occurred in one of four ways is speculative without any evidentiary foundation. More specifically, Dr. Federowicz avers that plaintiff's expert's opinion is without foundation because the pins used during surgery have a stopper at the end and he does not predrill the tibia.

Initially the court will note that plaintiff's expert's affidavit is inartfully drawn. Nevertheless, while plaintiff's expert does describe four possible ways in which a popliteal artery may be perforated during knee surgery, the expert does form "[a]n opinion within a reasonable degree of medical certainty, that it is more likely than not, that the injury was caused by a pin employed during the anchoring of the Tibial cutting guide, or during the drilling of the femur" (Plaintiff's Expert Affidavit, ¶ 75). Moreover, plaintiff's expert avers that this injury should not occur in the absence of negligence in the performance of knee replacement surgery (Plaintiff's Expert Affidavit, ¶52).

In any event, on the issue of the perforation of the popliteal artery, the court finds most compelling the Pathology Report and Dr. Bogdasarian's Report of Operation. The Pathology Report states, in pertinent part, as follows:

The popliteal artery is ligated twice. The proximal ligation is 2.3 cm below the resection margin. The distal ligation is located 1.1.cm below that. Within the intervening segment of popliteal artery there is a minute linear perforating a defect measuring 2 mm on the posterior aspect and a similar defect on the anterior aspect of the artery. The surrounding soft tissue is not encased by hematoma and there does not appear to be extrinsic luminal compromise.

(Pathology Report, p 2; emphasis added). [*5]

The Pathology Report further states:

[t]he dissected arterial system is thoroughly reviewed: The popliteal artery and anterior tibial artery at the resection margin contains a small amount of thrombus, but are not compromised.....One section (EE) of the vessel shows a through and through disruption of the arterial wall associated with adherent thrombus formation

(Pathology Report, p 4; emphasis added).

Finally, the diagnosis portion of the Pathology Report includes the conclusion of a "[m]inute (2MM) through and through perforation of popliteal artery" (Pathology Report, p 5; emphasis added).

Moreover, Dr. Bogdasarian's Report of Operation states that plaintiff suffered a popliteal artery injury which entered through the anterior portion of the popliteal artery and exited the posterior portion. This proof of an entrance and exit of this so-called "through and through" injury directly contradicts Dr. Federowicz's position that the injury must have been caused by Dr. Gunzenhauser using an '[i]nstrument from within the vessel itself" (Federowicz Affidavit sworn to October 2, 2008, ¶ 11). The court finds that defendant's argument that the lack of a corresponding hole in the tibia bone is proof to the contrary is best left for cross-examination of plaintiff's expert at trial. In sum, the court finds that plaintiff has raised questions of fact relative to the perforation of her popliteal artery.

With respect to the hypertension issue, plaintiff's expert opines that Dr. Federowicz departed from appropriate practice in failing to detail when and how long the tourniquet was deflated (Plaintiff's Expert's Affidavit, ¶ 44). Further, plaintiff's expert avers that plaintiff:

[e]xperienced an alarming rise in her blood pressure which caused blood to accumulate in the surgical field despite the use of a tourniquet. However, there is no indication that the surgeon considered discontinuation of the procedure in light of the complication.

[i]n this case a hypertensive event occurred causing blood to flow into the surrounding tissues despite the use of a tourniquet. The flow of blood into the surgical field complicates the procedure. The presence of blood increases the risk that medical instruments will unintentionally encroach upon the surrounding anatomical structures and vessels.

(Plaintiff's Expert's Affidavit, ¶¶ 20-21). Dr. Federowicz counters that "[a]ppropriate measures were undertaken to minimize the potential for clot formation including deflation of the tourniquet during the majority of the procedure, and completion of the procedure in a timely manner" (Federowicz Affidavit sworn to October 2, 2008, ¶ 17). The court finds that plaintiff's expert's opinion that the surgery should have been discontinued - or at least considered - raises questions of fact as to the management of plaintiff's hypertension during surgery.

Addressing the alleged delay by Dr. Federowicz in obtaining a vascular consult, plaintiff's expert opines that it was incumbent upon defendant to obtain immediate surgical intervention if [*6]he did not believe the vascular surgeon was timely treating the matter (Plaintiff's Expert's Affidavit, ¶ 48). Dr. Federowicz opines that a "[v]ascular consultation was ordered in a timely manner following post-operative assessment of the patient" (Federowicz Affidavit sworn to October 2, 2008, ¶ 20). The court finds that plaintiff's expert adequately raises questions of fact as to the timing of plaintiff's treatment.

In sum, this court finds that plaintiff's expert's affidavit, taken together with the medical records, most notably the Pathology Report and Dr. Bogdarsarian's Report of Operation, create questions of facts warranting the denial of defendants' motion for summary judgment in its entirety.

CONCLUSION

In view of the foregoing, the court finds that defendants' motion for summary judgment dismissing plaintiff's complaint is DENIED with respect to defendants Stephen G. Federowicz. M.D. and Tier Orthopedic Associates, P.C.; and GRANTED with respect to defendant

Kyung I. Kim, M.D.

The court has scheduled an attorney conference for March 2, 2009 at 1:30 p.m. in Room 102, Broome County Courthouse, 92 Court Street, Binghamton, New York for the purpose of selecting a trial date.

It is so ordered.

February 9, 2009

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:Plaintiff has discontinued against other originally named defendants Jeffrey Gunzenhauser, M.D., Riverside Radiology Associates, Michael Bogdasarian, M.D., Alberto Bartoli, M.D., Surgical Associates, P.C., and Our Lady of Lourdes Hospital.

Footnote 2:The court has simultaneously signed a separate Order granting Dr. Kim's motion.

Footnote 3:For ease of reference, all references to "defendant" or Dr. Federowicz include Tier Orthopedic Associates, P.C. inasmuch as plaintiff alleges that Tier Orthopedic Associates, P.C. is vicariously liable for the actions of Dr. Federowicz.

Footnote 4:Plaintiff's expert's name is redacted.