Bade v Partridge

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[*1] Bade v Partridge 2009 NY Slip Op 52435(U) [25 Misc 3d 1236(A)] Decided on November 23, 2009 Supreme Court, Nassau County Marber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 23, 2009
Supreme Court, Nassau County

Margaret Bade, Plaintiff,

against

Henry Partridge, Iheanyichukwu Aja-Onu and South Nassau Communities Hospital, Defendants.



017429/07



Plaintiff's Counsel: Meagher & Meagher, P.C., 175 Main St., White Plains, NY 10601, (914) 328-8844

Deft - Partridge: Ivone, DeVine & Jensen, 2001 Marcus Ave, Lake Success, NY 11042, (516) 326-2400

Deft - Aja-Onu:Mitchell Angel, Esq., 170 Old Country Road, Mineola, NY 11501, (516) 741-3900

Deft - South Nassau: Bartlett, McDonough, Bastone & Monaghan, LLP, 300 Old Country Rd, Mineola, New York 11501, (516) 877-2900

Randy Sue Marber, J.



Upon the foregoing papers, the motion by the Defendant, Henry Partridge for summary judgment dismissing the complaint is DENIED. The motion by the Defendant, South Nassau Communities Hospital, for summary judgment dismissing the complaint is GRANTED in part and DENIED in part.

This is an action for medical malpractice. In early July 2006, the Plaintiff, Margaret Bade, began to experience nausea, vomiting, fever, and pain in the abdominal region. After the Plaintiff was treated in the emergency room, her symptoms subsided. However, in September, the Plaintiff's symptoms returned, her urine became dark, and her stool became white. After visiting her primary care physician, Dr. Christopher Gee, the Plaintiff was referred to Dr. Philip Moskowitz, a [*2]gastroenterologist, which is a physician who specializes in diseases of the stomach and intestines.[FN1] The Plaintiff had seen Dr. Moskowitz the year before in order to have a colonoscopy.[FN2]

The Plaintiff was examined by Dr. Moskowitz on September 29, 2006. Based upon his examination, Dr. Moskowitz' impression was that the Plaintiff was suffering from "cholecystitis," or inflammation of the gallbladder. Dr. Gee had already ordered an imaging diagnostic procedure, known as a "HIDA scan," to examine her gallbladder and the ducts connecting it with other organs.[FN3] However, given the Plaintiff's history, Dr. Moskowitz recommended that she have her gallbladder removed, regardless of the results of the HIDA scan.[FN4] Dr. Moskowitz referred the Plaintiff to the Defendant, Dr. Henry Partridge, a general surgeon, for a cholecystectomy, the surgical removal of the gallbladder.

The Plaintiff consulted with Dr. Partridge on October 4, 2006.[FN5] Based upon his examination, Dr. Partridge concluded that the Plaintiff had probably passed some small stones. However, in order to determine whether any stones were still present, Dr. Partridge recommended that the Plaintiff have a cat scan of the abdomen followed by an "ERCP," or endoscopic retrograde colangiopancreatography study.[FN6]

The ERCP procedure involves passing an endoscope through the mouth of the patient to the duodenum, the part of the small intestine closest to the stomach. The "common bile duct" is a tube leading into the duodenum. It is formed by the union of the "hepatic duct," running from the liver, and the "cystic duct," coming from the gallbladder. By means of the endoscope, the entrance of the common bile duct into the duodenum can be visualized. During the ERCP, a catheter may be passed from the endoscope into the common bile duct to inject "contrast material" in order to perform a radiographic study.[FN7] The catheter may also be used to remove a stone from the bile duct during the course of the procedure.

The duodenum is also connected to another duct known as the "pancreatic duct," which, as the name implies, runs from the pancreas. The pancreatic duct empties into the duodenum either [*3]through the opening shared with the common bile duct or another opening which is close to it.[FN8] During an ERCP, the catheter may be introduced into the pancreatic duct, if the doctor who is performing the procedure regards it as appropriate.[FN9] According to Dr. Partridge, the risk of pancreatitis, or inflammation of the pancreas, developing after an ERCP is approximately 5%.[FN10] Although Dr. Partridge does not recall exactly what he told the Plaintiff prior to the ERCP, a diagram which he drew on her folder indicates that he advised her that pancreatitis is a possible risk of the procedure.[FN11]

Dr. Partridge does not perform the ERCP procedure. However, he consulted with Dr. Stephen Krigsman, a gastroenterologist associated with Dr. Moskowitz, and learned that they used the Defendant, Dr. Aja-Onu to perform the procedure for their patients. Dr. Partridge's notes indicate that he planned to perform a laparoscopic cholecystectomy on the Plaintiff following completion of the ERCP procedure.

Dr. Aja-Onu performed an ERCP on the Plaintiff on October 25, 2006 at the Defendant South Nassau Communities Hospital.[FN12] Before undergoing the ERCP, the Plaintiff signed a consent form acknowledging that she had been advised of the risks associated with the procedure. During the course of the ERCP, a stone was removed from the lower portion of the Plaintiff's common the bile duct, and another stone was observed in the gall bladder.

Because of the presence of the stone, the plan was to have Dr. Partridge remove the Plaintiff's gall bladder. However, before the cholecystectomy could be performed, the Plaintiff began to experience pain and vomiting. The following morning, Dr. Partridge examined the Plaintiff and determined that she was suffering from pancreatitis following the ERCP procedure. In view of this complication, Dr. Partridge cancelled the cholecystectomy which had been scheduled for that morning.

On November 30, 2006, Dr. Partridge performed a more extensive surgery on the Plaintiff, involving not only the removal of the gallbladder but also the draining of a large cyst behind the stomach, which had developed because of the pancreatitis condition.[FN13] The Plaintiff was discharged from the hospital on December 15, 2006. However, on December 18, the Plaintiff returned to the hospital with signs of kidney failure. The Plaintiff was discharged from the hospital on December 21, 2006, at which time her kidney function was normal. [*4]

This action for medical malpractice and lack of informed consent was commenced on September 28, 2007. The Plaintiff alleges that Dr. Partridge committed malpractice by ordering an ERCP rather than a less invasive radiologic procedure. According to the Plaintiff's expert, an ERCP was not indicated because the Plaintiff's diagnostic tests indicated only a low to intermediate risk of an obstruction. The Plaintiff s expert asserts that rather than ordering an ERCP, Dr. Partridge should have ordered a "relatively new diagnostic tool," known as an "MRCP," or magnetic resonance colangiopancreatogram.[FN14] According to the Plaintiff's expert, an MRCP would have identified the stone in the Plaintiff's bile duct, and the stone could have been surgically removed without the need for an ERCP procedure.[FN15] Thus, the Plaintiff's expert concludes that the ERCP was a cause of the Plaintiff's pancreatitis condition.[FN16]

Aside from Dr. Partridge, the Plaintiff named as defendants, Dr. Aja-Onu and South Nassau Communities Hospital. The Plaintiff alleges that South Nassau was negligent by granting surgical privileges to Drs. Partridge and Aja-Onu and by failing to ascertain their proficiency in the ERCP procedure. The Plaintiff further alleges that the hospital is liable on a theory of lack of informed consent with respect to the ERCP. Finally, The Plaintiff alleges that the hospital failed to provide her with proper post-operative care, both with respect to the ERCP and the subsequent surgery performed by Dr. Partridge.

The Defendant, Dr. Partridge, moves for summary judgment dismissing the complaint. According to Dr. Partridge, an MRCP might or might not have shown the presence of the stone in the Plaintiff's bile duct.[FN17] Dr. Partridge asserts that if an MRCP did show a stone, an ERCP would have been necessary to remove it. Dr. Partridge further asserts that if an MRCP did not show a stone, given the Plaintiff's test results and history, an ERCP would still have been necessary. Thus, Dr. Partridge argues that his failure to conduct an MRCP was not a proximate cause of the Plaintiff's injury.

On a motion for summary judgment, it is the proponent's burden to 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 (JMD Holding Corp. v. Congress Financial Corp., 4 NY3d 373, 384 [2005]). Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (id). However, if this showing is made, the burden shifts to the party opposing the summary judgment motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial (Alvarez v. Prospect Hospital, 68 NY2d 320, 324 [1986]).

The requisite elements of a cause of action for medical malpractice are a deviation or departure from accepted community standards of practice and evidence that such departure was a proximate cause of the plaintiff's injury (Flanagan v Catskill Regional Medical Center, 65 AD3d [*5]563, 565 [2d Dept 2009]). The medical services which may give rise to a claim for malpractice include, not only diagnosis and treatment of the plaintiff's condition, but also the performance of diagnostic procedures involving invasion or disruption of the integrity of the body (Sample v Levada, 8 AD3d 465, 467 [2d Dept 2004]).

Ordinarily, expert medical opinion is necessary to make out a prima facie case of malpractice (Dunn v Khan, 62 AD3d 828 [2d Dept 2009]). In similar fashion, expert opinion is ordinarily necessary to establish that the defendant complied with the required standard of care. However, a party who is qualified by reason of education or training in a specific field may serve as his own expert (Rodriguez v. Pacificare, Inc., 980 F.2d 1014, 1019 [5th Cir. 1993]). Thus, a physician who is a defendant in a malpractice case may offer his own affidavit on a summary judgment motion (id). While the defendant's interest in the case will of course affect his credibility, it does not prevent him from making a prima facie showing that he is entitled to judgment on the malpractice claim.

Dr. Partridge submitted an affidavit asserting that a preoperative ERCP was the "standard of practice" for patients with bile duct stones, and an ERCP would have been necessary, regardless of whether an MRCP was performed.[FN18] The court concludes that Dr. Partridge has established, prima facie, that there was no deviation or departure from accepted community practice and the failure to perform an MRCP was not a proximate cause of the Plaintiff's injury. Accordingly, the burden shifts to the Plaintiff to show a triable issue as to whether Dr. Partridge departed from accepted community practice and whether his departure was a proximate cause of her injury.

The Plaintiff's expert asserts that the governing standard of care required the doctor to perform an MRCP, prior to resorting to the more invasive ERCP procedure.[FN19] The Plaintiff's expert further asserts that an MRCP would have identified the stone in the Plaintiff's bile duct and the stone could have been surgically removed without the need for an ERCP procedure. Thus, the Plaintiff's expert asserts that the surgical removal of the stone would have "avoid[ed] the cannulation of, and injections of contrast material into the common bile duct involved in ERCP; [which] resulted in the Plaintiff's severe yet easily avoidable pancreatitis."[FN20] The court concludes that the Plaintiff has carried her burden of showing a triable issue as to whether Dr. Partridge departed from accepted community medical practice in ordering an ERCP rather than the non-invasive MRCP procedure. The Plaintiff has further shown a triable issue exists as to whether Dr. Partridge's failure to order an MRCP was a substantial factor contributing to the Plaintiff's developing pancreatitis. The Defendant, Dr. Partridge's motion for summary judgment dismissing the complaint is DENIED as it relates to the Plaintiff's malpractice cause of action.

The elements of a cause of action for malpractice based on lack of informed consent are 1) the person providing the professional treatment failed to disclose alternatives to the treatment and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and risks associated with the alternatives, that a reasonable medical practitioner would have disclosed in the [*6]same circumstances, 2) that a reasonably prudent patient in the same position would not have undergone the treatment if the patient had been fully informed, and 3) that the lack of informed consent is a proximate cause of the injury (Trabal v Queens Surgi-Center, 8 AD3d 555 [2d Dept 2004]).

Although Dr. Partridge does not recall exactly what he told the Plaintiff concerning the risks associated with the ERCP procedure, he did draw a diagram of the pancreas, the gallbladder, and the ducts connecting these organs.[FN21] Dr. Partridge also drew a "squiggly line" through the pancreas, indicating pancreatitis or inflammation. Thus, Dr. Partridge's diagram suggests that he discussed the risk of pancreatitis with the Plaintiff. In his affidavit, Dr. Partridge claims that he discussed alternatives to a laparoscopic cholecystectomy with the Plaintiff, including an open procedure, and not operating.[FN22] According to Dr. Partridge, the risk of pancreatitis is about the same, either with the open procedure or with laparoscopy. Dr. Partridge did not discuss alternatives to the ERCP with the Plaintiff, apparently because he regarded the procedure as medically necessary. In any event, the court concludes that Dr. Partridge has carried his prima facie burden that he fully disclosed all of the alternatives and risks to the Plaintiff. The burden shifts to the Plaintiff to establish a triable issue exists as to whether she has a cause of action for lack of informed consent.

At her deposition, the Plaintiff testified that Dr. Partridge did not discuss with her the risks associated with the ERCP procedure.[FN23] Although the Plaintiff did not remember whether Dr. Onu discussed the risks of an ERCP, she testified that he did not discuss whether there were any alternatives to the procedure.[FN24] In his affirmation, the Plaintiff's expert stated that, as the surgeon who was to remove the gallbladder, it was Dr. Partridge's responsibility to inform the Plaintiff fully as to the risks, benefits, and alternatives to the ERCP procedure.[FN25] The court concludes that the Plaintiff has carried her burden of showing a triable issue as to whether Dr. Partridge disclosed all the alternatives to an ERCP, which a reasonable practitioner would have disclosed, and the foreseeable risks involved. The Defendant, Dr. Partridge's motion for summary judgment dismissing the complaint is DENIED as to the Plaintiff's cause of action for lack of informed consent.

The liability of a hospital may arise in several different ways. As a general proposition, a hospital may be vicariously liable for the malpractice, or ordinary negligence, of its employees under the principal of respondeat superior (N.X. v. Cabrini Medical Center, 97 NY2d 247 [2002]). Thus, a hospital will be vicariously liable for malpractice committed by a doctor who is an employee of the hospital, if the doctor acted in furtherance of the hospital's business and within the scope of the doctor's employment. On the other hand, a hospital is not vicariously liable for the malpractice of an independent physician retained by the patient, merely because the physician has attending [*7]privileges at the hospital (Welch v. Medical Center, 21 AD3d 802, 807 [1st Dep't 2005]).

Aside from vicarious liability, a hospital may also be directly liable for breach of a duty that it, as an institution, owes to its patients. Although a hospital is, in a general sense, always furnishing medical care to patients, not every act of negligence toward a patient is medical malpractice (Bleiler v. Bodner, 65 NY2d 65, 73 [1985]). For example, a hospital may be liable in negligence for failing to use due care in furnishing competent medical personnel if the failure was a proximate cause of the Plaintiff's injury (id). Similarly, a hospital may be liable in negligence for failing to adopt and prescribe proper administrative regulations, such as rules requiring that appropriate specialists be in attendance and protocols for performing various types of medical procedures (id).

Finally, a hospital may be liable on a theory of lack of informed consent, if the hospital knew or should have known that the surgeon was acting without the informed consent of the patient (Bailey v. Owens, 17 AD3d 222 [1st Dep't 2005]). "A hospital is not required to pass upon the efficacy of treatment; it may not decide for a doctor whether an operation is necessary, or if one be necessary, the nature thereof..."(Fiorentino v. Wenger, 19 NY2d, 407, 415 [1967]). However, the hospital owes to every patient whom it admits the duty of saving her from an illegal procedure based upon lack of informed consent (id). Nonetheless, a court, having the benefit of hindsight, may not impose liability on a hospital for its failure to intervene in the independent physician-patient relationship (id). The level of detail concerning a proposed procedure as to which a patient should be informed is within the physician's medical judgment (id). Thus, the hospital should not ordinarily meddle in the doctor's exercise of discretion or the delicacy of the physician-patient relationship (id at 415-16).

The Plaintiff does not claim that Dr. Partridge or Dr. Aja-Onu were employees of South Nassau so as to render the hospital liable on a theory of respondeat superior. Rather, the Plaintiff alleges that South Nassau was negligent by granting surgical privileges to Drs. Partridge and Aja-Onu and by failing to ascertain their proficiency in the ERCP procedure. Such a claim is similar to a claim of failure to establish and enforce proper administrative regulations with regard to physicians granted privileges at the hospital. The Plaintiff further alleges that the hospital was negligent with respect to her post-operative care and committed malpractice based on lack of informed consent.

In support of its motion for summary judgment, the Defendant, South Nassau submits the affirmation of Dr. Vincent Garbitelli, who is board certified in the field of internal medicine. Dr. Garbitelli is of the opinion that the care provided to Plaintiff by the hospital from the date of her original admission to her ultimate discharge was undertaken in accord with good and accepted medical practice. Dr. Garbitelli further asserts that the examinations before trial of Dr. Partridge and Dr. Aja-Onu indicate that they are "well educated and trained in their respective specialties of gastroenterology and surgery".

The court concludes that the Defendant, South Nassau has failed to carry its prima facie burden that it was not negligent in granting privileges to Dr.'s Partridge and Aja-Onu or in failing to establish their proficiency in the ECRP procedure. The Plaintiff's expert acknowledges that the MRCP is a relatively new diagnostic tool. Although Dr. Garbitelli's affirmation asserts that the Defendant doctors were well trained, he has not established, prima facie, that they have kept up with advances in diagnostic techniques. Thus, even if the Defendant doctors were properly screened in the first instance, the hospital may have been negligent in allowing them to continue practicing without becoming well versed in the MRCP procedure. The Defendant, South Nassau's motion for [*8]summary judgment dismissing the complaint is DENIED as to the Plaintiff's claim based on the negligent granting of privileges to the Defendant doctors or failing to establish their proficiency in the ERCP procedure.

The court further concludes that the Defendant, South Nassau has not carried its prima facie burden with respect to the Plaintiff's claims as to improper post-operative care. Dr. Garbitelli's affirmation asserts that the Plaintiff's post-operative care was in accordance with good and accepted medical practice. However, the Plaintiff's expert asserts that the hospital departed from the accepted standard of care by "restarting Mrs. Bade's Lisinopril upon her discharge from the hospital on December 15, 2006". The Plaintiff had been taking Lisinopril, apparently for hypertension, and the medication was continued by Dr. Aja-Onu at the time of the Plaintiff's discharge.[FN26] According to the Plaintiff's expert, this medication was a competent producing cause of the "tubular necrosis" and acute renal failure which the Plaintiff developed after her initial discharge from the hospital.[FN27] A hospital is not liable for the negligence of a private attending physician who is not the hospital's employee (Cerny v Williams, 32 AD3d 881, 883 [2d Dept 2006]). The hospital cannot be held concurrently liable with such a physician, unless its employees commit independent acts of negligence or the attending physician's orders are contraindicated by normal practice (id). Regarding the Defendant, South Nassau's motion for summary judgment, it is its burden to establish that Lisinopril was not contraindicated for someone with the Plaintiff's medical condition and history. The court notes that the hospital's expert, Dr. Garbitelli, in his affidavit, does not address the issue of whether continuing lisinopril was appropriate, given the Plaintiff's medical condition. However, the affidavit of Maureen McGovern, the Defendant, South Nassau's Risk Management/Patient Safety Officer, suggests that the Defendant was aware that the Plaintiff was claiming that including this medication in the Plaintiff's discharge plan constituted a departure from the hospital's duty of care. Since the Defendant, South Nassau offers no expert opinion evidence that Lisinopril was not contraindicated for the Plaintiff, it has not established, prima facie, that it gave the Plaintiff proper post-operative care. The Defendant, South Nassau's motion for summary judgment dismissing the complaint is DENIED as to the Plaintiff's claim for improper post-operative care.

The court concludes that the Defendant, South Nassau has carried its prima facie burden as to the Plaintiff's claim against the hospital for lack of informed consent. The consent form which the Plaintiff signed prior to the ERCP establishes prima facie that she was adequately informed of the risks associated with the procedure. Thus, the burden shifts to the Plaintiff to show a triable issue as to whether she has a cause of action against the hospital for lack of informed consent.

The Plaintiff offers no evidence that South Nassau should have known that Dr.'s Partridge and Aja-Onu did not have the Plaintiff's informed consent to undergo an ERCP procedure. While an MRCP is a relatively new diagnostic procedure, there was no evidence that it has totally displaced the ERCP, or that it is no longer good and accepted medical practice to use an ERCP in any circumstances. Thus, South Nassau was not required to pass upon the efficacy of an ERCP for a patient in the Plaintiff's circumstances, or otherwise second guess Dr. Aja-Onu as to whether an [*9]ERCP was appropriate. The Defendant, South Nassau's motion for summary judgment dismissing the complaint is GRANTED as to the Plaintiff's claim for lack of informed consent.

All matters not decided herein are hereby DENIED.

This decision constitutes the decision and order of the court.

DATED:Mineola, New York

November 23, 2009

______________________________

Hon. Randy Sue Marber, J.S.C. Footnotes

Footnote 1:See Merriam Webster's Medical Desk Dictionary.

Footnote 2:Defendant Partridge's exhibit F.

Footnote 3:Plaintiff's exhibit 1, expert affirmation at ¶ 8.

Footnote 4:Defendant Partridge's exhibit F.

Footnote 5:Plaintiff's exhibit 10.

Footnote 6:See defendant Partridge's exhibit A, affidavit of Dr. Partridge, at 2. An "addendum" to Dr. Moskowitz' notes indicates that plaintiff's blood chemistry indicated the presence of stones in the common bile duct. Thus, Dr. Moskowitz agreed that plaintiff would "probably need" to have an ERCP performed. See Defendant Partridge's exhibit F.

Footnote 7:See affidavit of Dr. Partridge at 2.

Footnote 8:See Merriam Webster's Medical Desk Dictionary.

Footnote 9:Affidavit of Dr. Partridge at 2.

Footnote 10:Affidavit of Dr. Partridge at 9. The experts do not discuss whether pancreatitis may develop without the catheter being inserted into the pancreatic duct during the course of the ERCP procedure.

Footnote 11:Affidavit of Dr. Partridge at 5.

Footnote 12:Plaintiff's ex. 1, expert affirmation at ¶ 18.

Footnote 13:Affidavit of Dr. Partridge at 7.

Footnote 14:Plaintiff's ex. 1, expert affirmation at ¶ 63.

Footnote 15:Plaintiff's ex. 1, expert affirmation at ¶ 74-75.

Footnote 16:Plaintiff's ex. 1, expert affirmation at ¶ 72.

Footnote 17:Affidavit of Dr. Partridge at 9.

Footnote 18:Affidavit of Dr. Partridge at 6, 9.

Footnote 19:Plaintiff's expert affirmation at ¶ 64.

Footnote 20:Plaintiff's expert affirmation at ¶ 5. "Cannulation" refers to the insertion of a small tube into a body cavity, duct, or vessel. See Merriam Webster's Medical Desk Dictionary.

Footnote 21:Defendant Partridge's ex. D.

Footnote 22:Affidavit of Dr. Partridge at 6.

Footnote 23:Plaintiff's ex. 3, deposition of Margaret Bade at 53.

Footnote 24:Plaintiff's ex. 3, deposition of Margaret Bade at 54-55.

Footnote 25:Plaintiff's expert affirmation at ¶ 68.

Footnote 26:Defendant South Nassau's ex. J, affidavit of Maureen McGovern, at ¶ 6. See also plaintiff's "Multisciplinary Discharge Plan" for December 15, 2006, defendant Partridge's ex. G.

Footnote 27:Plaintiff's ex. 1, expert affirmation at ¶ 77.



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