Castro v New York City Health & Hosps. Corp.
Annotate this CaseDecided on April 20, 2009
Supreme Court, Kings County
Julio C. Castro, as Administrator of the Estate of Aracelis Castro, and Julio Castro, Individually, , Plaintiffs,
against
New York City Health and Hospitals Corporation (Kings County Hospital Center), East New York Diagnostic and Treatment Center, Dr. Cyrus O. McCalla, Dr. Mahender K. Gaba, Dr. Judith Mitchell, Dr. Kathleen Connell, Dr. Sungwai Chiu, Dr. Louis Salciccioli, Dr. Tak Kwan, and Dr. George Chacko, Defendants.
29941/00
Attorneys for Plaintiffs
Kramer, Dillof, Livingston & Moore
217 Broadway
New York, NY 10007
Attorneys for Defendant Dr. Tak Kwan
Kanterman, O'Leary & Soscia, LLP
50 Main Street
White Plains, NY 10606
Attorneys for Defendant NYC HHC (Kings County Hospital Center)
McAloon & Friedman, PC
123 William Street
New York, NY 10038
Attorneys for Defendant Dr. Cyrus O. McCalla
Brown & Tarantino, LLC
White Plains Plaza
One North Broadway, Suite 1010
White Plains, NY 10601
Attorneys for Defendants Dr. Mahender K. Gaba, Dr. Kathleen Connell, Dr Sungwai Chiu, and Dr. George Chacko
New York State Attorney General's Office
120 Broadway, 23rd Floor
New York, NY 10271
Attorneys for Defendant Dr. Judith Mitchell
Congdon, Flaherty, O'Callaghan, Reid, Donlon, Travis & Fishlinger
333 Earle Ovington Blvd, Suite 502
Uniondale, NY 11553-3624
Attorneys for Defendant Dr. Louis Salciccioli
Peltz & Walker, Esqs.
222 Broadway
New York, NY 10038
Randolph Jackson, J.
The following papers numbered 1 to 23 read on these motions:Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed1-3, 11-13, 15-17; 19-21; 23-24
Opposing Affidavits (Affirmations)4-9
Reply Affidavits (Affirmations)10141822
_______ Affidavit (Affirmation)[*2]
Upon the foregoing papers:
(a)Dr. Cyrus O. McCalla moves for an order, pursuant to CPLR 3212, dismissing the complaint and all cross-claims insofar as asserted against him (motion sequence 11);
(b)Dr. Judith Mitchell cross-moves for an order, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross-claims insofar as asserted against her (motion sequence 13);
(c)Dr. Tak Kwan cross-moves for an order, pursuant to CPLR 3212, for summary judgment dismissing the complaint insofar as asserted against him (motion sequence 10);
(d)Drs. Mahender K. Gaba, Kathleen Connell, and Sungwai Chiu jointly cross-move for an order, pursuant to CPLR 3212, dismissing the complaint insofar as asserted against them (motion sequence 12);[FN1] and
(e)Dr. Judith Mitchell moves for an order, pursuant to CPLR 3108, granting her an open commission to allow her defense counsel to depose non-party witness Dr. Arshad Mahmood Safi (motion sequence 6).
Overview
This case sounds in negligence, medical malpractice, and wrongful death involving allegations of failure to timely diagnose and treat Aracelis Castro's pulmonary embolism[FN2] which led to her suffering coma and ultimately death. The principal issues in this action are whether each defendant physician failed to order the necessary tests to rule out pulmonary embolism and to re-
start intravenous anti-coagulation. For the reasons set forth herein: (a) that branch of Dr. McCalla's motion for summary judgment seeking the dismissal of the informed consent cause of action against him is granted, and his motion is otherwise denied; (b) the cross motions for summary judgment of Drs. Mitchell, Kwan, Gaba, Connell, and Chiu are denied; and (c) Dr. Mitchell's motion for an open commission is granted without opposition.
Background Facts and Procedural History
This is an action sounding in medical malpractice allegedly committed by six defendant physicians in connection with their care and treatment of plaintiff's decedent, Aracelis Castro (the patient), during her September 29th to November 9th, 1998[FN3] ante-partum, labor, and delivery admissions to Kings County Hospital Center (Kings County Hospital) and to State University of New York Downstate Medical Center (Downstate Hospital or the hospital), resulting in injuries to the patient and her subsequent death. A chronological overview of the facts is as follows:
September 29th " Kings County Hospital
On Tuesday, September 29th, the patient, then 29 years old and 26 weeks pregnant with her second child, presented to the emergency room at Kings County Hospital with complaints of resistant [*3]cough, non-productive for the prior five months, which became worse over one week's period of time, and difficulty breathing. She was admitted to the obstetrical observation unit for a "workup of persistent, dry, wheezing cough" of several months' duration and to rule out asthma. On admission, her blood pressure was 120/70 and her pulse was 100.[FN4] A chest X-ray showed at lung bases bilateral interstitial[FN5] infiltrates[FN6] which raised a concern for pneumonia, according to Dr. Mitchell's testimony (at page 154 of her deposition). She also had a 2+ pitting edema[FN7] in both legs. A pelvic examination revealed that her cervix was 50% effaced, which is a sign of possible early labor according to Dr. McCalla's testimony (at pages 54-55 of his deposition).
A progress note by an attending physician at 9:00 a.m. on September 29th made a diagnosis of heart failure with pregnancy, based on the following findings: pulse of 132, lungs with bilateral crackles, a heart beat with a Grade III systolic murmur with gallop,[FN8] and extremities with +3 edema. Requests for pulmonary and cardiology consults indicated that the patient was admitted for a work-up of a persistent dry wheezing cough for several months and noted that she had shortness of [*4]breath, orthopnea (difficulty breathing while lying down), and mild hypoxia.[FN9] A transthoractic echocardiogram report of September 30th, interpreted by Dr. Mitchell, showed "severe" or, in the words of Dr. Mitchell, "critical" mitral stenosis (the mitral valve opening of only .8 cm. sq.)[FN10] with the moderately dilated right atrium and ventricle, the findings which were consistent with a volume overload of the right ventricle. A cardiologist's note recommended a transfer to Downstate Hospital. According to a cardiology fellow, Dr. Chiu (at page 121 of his deposition), the patient's transfer was in anticipation of having a percutaneous balloon mitral valvuloplasty (which is a catherization procedure aimed at opening the mitral valve with a balloon) to be performed at Downstate Hospital.
A 10:00 a.m. pulmonary consult noted shortness of breath and pillow orthopnea, which increased over the past three weeks, and which coincided with an increase in bilateral lower extremity edema.
September 30th, A.M. " Kings County Hospital
The patient began having mild labor contractions at 1:00 a.m. on September 30th. An attending cardiologist wrote a note at 3:30 a.m. describing the patient's condition and the finding of a severe mitral stenosis on the echocardiogram, and further stating that he or she would call perinatology at Downstate Hospital to assume the responsibility over the patient and for the cardiology to arrange transfer to Downstate Hospital for valvuloplasty when her pregnancy was terminated or when she was stabilized. A 10:20 a.m. chief resident's note indicated that defendant Dr. McCalla, a perinatologist (a specialist in high risk obstetrics-maternal/fetal medicine), accepted the patient's transfer. An anesthesiology consult had an assessment/plan that included: "Pt. might also benefit from anticoagulation since she is at increased risk for thrombi formation" (emphasis added). Dr. Mitchell testified (at pages 66 and 125 of her deposition) that pregnancy, immobility, and leg edema were each associated with an increased risk of deep venous thrombosis. A perinatology consult by Dr. McCalla noted diagnoses of mitral stenosis and pulmonary edema, stated that she was in need of a valvuloplasty to be performed at Downstate Hospital as per a cardiology fellow, and further stated that he would speak to a cardiologist to arrange for the patient's transfer to the obstetrical staff service at Downstate Hospital.
September 30th, P.M. " Downstate Hospital
Upon transfer to Downstate Hospital's Intensive Care Unit (ICU) at approximately 1:30 p.m., the patient's diagnosis was mitral valve stenosis. At the time of her transfer, the patient's blood pressure was 109/59, her pulse 116, her temperature 98.8º F, and her respiration rate 22.[FN11] Her [*5]admission note, timed at 3:45 p.m., recited that she was 26 weeks pregnant and had a persistent non-productive cough for five months, lower abdominal pain, orthopnea, and increasing shortness of breath (respiratory rate of 30's/min.). A physical exam revealed bilateral crackles in the lungs with the left greater than the right. The heart was noted at a regular rate and rhythm but again was tachycardic and had a murmur. The patient's extremities were found to have 1+ pitting edema to mid-shin bilaterally.
An echocardiogram revealed pulmonary hypertension,[FN12] severe mitral stenosis, dilatation of the right atrium and right ventricle, dilatation of the left atrium, and tricuspid regurgitation. Dr. Salciccioli, who interpreted the echocardiogram, testified (at pages 74-75 of his deposition) that the finding that the right side of the heart was enlarged was consistent with right heart failure. The assessment/plan was pre-term labor, 26 weeks, severe pulmonary hypertension, severe mitral stenosis, admission to the ICU, and intensive cardiac monitoring.
A 3:00 p.m. nursing note of that day indicated that an obstetrical resident, defendant Dr. Connell, was called in, and further stated that a respiratory examination revealed soft anterior (frontal) breath sounds, bi-basilar rales with mild expiratory wheezing and tachypnea (excessively rapid breathing). The patient was receiving oxygen 5 liters via nasal cannula (tube) and her oxygen saturation levels were 94-96%. In the cardiovascular section, the nurse noted 1+ pedal edema and a loud murmur. A 5:15 p.m. nursing note stated that Dr. Connell performed a "v.e." (vaginal exam) on the patient.
The labor and delivery summary record indicated that the first stage of labor started at 5:30 p.m. A 6:10 p.m. nursing note stated that the patient was tachypneic with bilateral rales, and having a "productive cough with whitish blood tinged secretions." Her blood pressure readings at that time were 116/76 and 140/73. She was on oxygen via NRM (a non-rebreathing mask) at 100% and had an oxygen saturation of 93%. She was being maintained on a high back rest. Her pulse was 128, and she had edema in both legs. The ICU nursing notes stated that an a-line (an arterial line) was inserted in the left radial artery at 7:10 p.m. to measure the patient's systemic blood pressure, as Dr. Chiu testified (at page 53 of his deposition).
An untimed perinatology note indicated that the patient had a persistent non-productive cough and that her lungs had crackles bilaterally, with the lower lungs being louder. A 6:30 p.m. anesthesiology note stated that the patient's lungs had crackles throughout and that she was wheezing and had tachycardia. The patient's lower extremities had 2+ pedal edema.
The invasive procedure notes indicated that a Swan-Ganz catheter[FN13] was placed at approximately 7:00 p.m. and that during the procedure the patient could not lie down for a sufficient amount of time to obtain the readings and had to be put in an upright position. The ROC (resident on-call) note stated that the patient's pulse was 136, her respiration rate 42, her blood pressure 115/70, and an oxygen saturation 90% on 5L of oxygen at 8:00 p.m. [*6]
Defendant Dr. Chiu, a cardiology fellow, who saw the patient between 7 p.m. and 9 p.m. that night, recalled the patient (at pages 37 and 59 of his deposition) as a very young but very sick person who was very short of breath and whose heart rate was very fast. At his deposition (at pages 130 and 134), he characterized her condition as "unstable" based on her tachypnea and tachycardia.At the time of his examination of the patient, he wrote a cardiology note indicating he was aware of her high pulmonary arterial pressure 120/80[FN14] and her pulse of 130. He suggested that the patient receive Propranolol (a beta-blocker) and an IV Nitrate (a vasodilator), that a valvuloplasty could be scheduled if the patient did not deliver that night, and that he discussed the case with the attending cardiologist, non-party Dr. Haleh Milani. Dr. Milani indicated (at pages 57, 65, 211-12, and 240-41 of her deposition) that she was the attending on-call in the Cardiac Care Unit (CCU) on weekends and on weekday nights after 6:00 p.m., and that in that capacity she would generally not make major management decisions for the patients but merely made sure that they were stable during her periods of coverage. Dr. Milani wrote a cardiac consultation note on September 30th in which she recited the patient's history and noted that the echocardiogram showed mitral stenosis .8 cm. sq. She wrote, "once hemodynamically stable, will consider an interventional procedure to relieve the stenosis. The valve is amenable to balloon valvuloplasty based on echo criteria. However, need to manage clinically first."
An untimed progress note by Dr. Connell indicated a pulse of 125 to 130 and a fever of 101.8º F (normal range, 98.8º F). At 11:30 p.m., a nurse recorded blood-tinged mucus, a pulse of 130, respiration rate of 44, and a temperature of 102.6º F. The Labor and Delivery Flow Sheet indicated that by 4:30 p.m., her pulse increased to 130 and stayed at 130 or higher until 11:30 p.m. According to that sheet, the patient developed a fever, with a temperature in the normal range (98.8º F) at 5:30 p.m., but at 101.8º F at 8:30 p.m. and 102.6º F at 11:30 p.m. It also stated that her respiration rate ranged from 24 to 44 before the delivery.
October 1st
A nursing note timed 12:30 a.m. on Thursday, October 1st, indicated that Dr. McCalla was at the patient's bedside at the ICU. The labor and delivery summary record indicated that there was an artificial rupture of membranes and that the second stage of labor began at 12:30 a.m., a baby girl was delivered at 12:45 a.m., and the placenta was delivered at 12:52 a.m. The baby had to be resuscitated with oxygen bagging and intubation. The delivery was described as a normal spontaneous vaginal delivery in the ICU, without complications, and pediatricians were in attendance because of prematurity. The newborn was handled to the pediatricians.
The labor and delivery summary record stated that the mother remained in the ICU in "guarded" condition, while the delivery room nursing flow sheet stated that she was listed as "stable." The post-partum recovery chart on the delivery room nursing flow sheet indicated that at 12:55 a.m., the patient's blood pressure was 90/54, her pulse 115, her respiration rate 50, and her oxygen saturation 90%. From 1:15 a.m. to 4:30 a.m., her blood pressure readings ranged from 92-76/60-40, her pulse ranged from 115 to 120, her respiratory rate ranged from 50-58, and her oxygen saturation ranged from 96% to 99%. Throughout that period, her diastolic blood pressure [*7]was generally less than 60, which, according to plaintiff's cardiology expert, Dr. Bruce Charash, was hypotensive (below normal). Nursing notes from 12:00 a.m. to 8:00 a.m. indicated that the patient was noted as having tachypnea, tachycardia, blood pressure readings of 119/74 to 91/53, pulmonary arterial pressure of 115/56 to 98/48 (severe pulmonary hypertension), and bilateral rales with a non-productive cough.
A 2:30 a.m. note by Dr. Connell reiterated the patient's complaints of worsening non-productive cough and increasing shortness of breath, as well as the prior diagnoses and findings of congestive heart failure, severe pulmonary hypertension, severe mitral stenosis, and enlargement of the right atrium, right ventricle, and left atrium. She noted that at 8:20 p.m. (six hours prior) the patient's fever spiked to 101.8º F. On physical examination, Dr. Connell noted pulse of 120 to 140, blood pressure of 90-120/40-60, lungs positive for bilateral rhonchi,[FN15] her heart being tachycardic, and her lower extremities having a bilateral pitting edema. Dr. Connell's assessment/plan was status post NSVD (normal spontaneous vaginal delivery), severe pulmonary hypertension, severe mitral stenosis. Dr. Connell noted that the patient was evaluated during labor by cardiology attending Dr. Milani and that she would be transferred to the CCU post-partum for observation and possible valvuloplasty. Dr. McCalla, the obstetrical attending physician, wrote a note indicating that he saw the patient and agreed with Dr. Connell's note. Dr. McCalla testified (at pages 122 and 124 of his deposition) that he did not consider the patient to have pulmonary embolism (PE) at the time of her delivery.
Nursing notes at 5:00 a.m. on October 1st indicate that the patient was transferred from the ICU to the CCU (cardiac care unit) via bed in stable condition with monitors attached. She then experienced a hypotensive episode when her blood pressure fell to 60/40.[FN16] Shortly thereafter, she was given a fluid challenge of 200 cc of normal saline per hour, and her blood pressure increased to 90/60. The arterial line in the left arm (used to measure systemic blood pressure) was clotted and was discontinued at 7:00 a.m. A nursing note of that time indicated that the patient's blood pressure was 83/49 when Dr. Chiu re-positioned the arterial line to the patient's right arm. The patient's blood pressure was 80/57 at 7:40 a.m. and 84/57 at 8:00 a.m. An 8:00 a.m. obstetrical attending note acknowledged blood pressure readings of 60-90/40-58. An 8:00 a.m. nursing note indicated that the patient was in the high Fowler's position (sitting in bed), was using a non-rebreather mask, had a respiration rate of 40-42, and was very short of breath and tachypneic. A 9:12 a.m. nursing note indicated that an Esmolol (a beta-blocker) drip was started but discontinued after a few minutes secondary to a drop in blood pressure to 80/58.
Dr. Chiu wrote an untimed cardiology note on October 1st in which he noted tachycardia, tachypnea, bilateral rales bi-basilar, but found the extremities to be without edema. His assessment/plan included: (1) severe mitral stenosis, continue to treat with diuretics and Propranolol; definitive treatment would be valvuloplasty; and (2) fever, follow blood cultures, [*8]urinalysis, chest X-ray; consider Swan-Ganz catheter as a source if all other sources were ruled out. A CCU acceptance note indicated that a chest X-ray indicated atrial enlargement and bilateral interstitial infiltrates at base.
Dr. Connell wrote an obstetrical service note at 6:30 a.m. indicating the patient's blood pressure of 143/43,[FN17] pulse of 123, and respiration rate of 36-40, and further indicating that the patient was receiving fluid challenge for possible over-diuresis. Dr. Connell also noted that the patient had labored breathing and that there was "scant vaginal bleeding." Her plan included to follow with cardiology in the CCU and possible valvuloplasty, if stable. Dr. McCalla wrote an obstetrical attending, stating that the patient was currently with severe mitral stenosis, awaiting valvuloplasty, continue to watch for fluid shift, strict input and output during the next 24 hours, "will continue to follow with you," continue antibiotics.
Dr. Gaba, a cardiology fellow on duty for the month of October, wrote a follow-up note on October 1st detailing the patient's history, findings, and diagnosis. He noted bilateral minimal rales, and heard a loud S1, P2, and a mid-diastolic murmur in the mitral area. His impression was severe mitral stenosis with pulmonary edema mild, post-delivery. His plan was to continue Digoxin/diuretics, hold Esmolol, antipyretics/fever work-up, valvuloplasty once stabilized.
Dr. Mitchell testified (at pages 105 and 110 of her deposition) that she was the attending cardiologist in the CCU for the month of October. She further testified (at pages 103-105 of her deposition) that in that capacity she "would round on the patients in the CCU and help and direct in their care," that she was the attending for this patient in the CCU, that as the attending she had the responsibility for ordering indicated treatment for patients unless they came in with established diagnoses and plans, and that if there is a change in condition necessitating a change in diagnosis and plan of treatment after the patient came under her care it was her responsibility to make it. She testified that if she disagreed with the diagnosis or plan for treatment the patient came in with, she would discuss it with the other physicians and the patient.
On October 1st, Dr. Mitchell wrote a cardiology attending note stating, "Agree with Dr. Gaba. Also needs TEE [transesophageal echocardiography] prior to valvuloplasty. Follow-up blood cultures/chest x-rays needed. Beta blocker for heart rate control. If stable, valvuloplasty 10/2." Dr. Mitchell's diagnosis of the patient, as she testified on pages 106-107 of her deposition, was "critical mitral stenosis," "malignant pulmonary hypertension," and "fulminant congestive heart failure." According to Dr. Mitchell (at page 108 of her deposition), the patient required an "emergent valvuloplasty," which was the established plan of care agreed to by a combination of doctors: "cardiology consult who was seeing her, Dr. Milani was the attending, her obstetrical physicians . . . [and] the interventional cardiologist [Dr. Kwan] had been spoken to prior to her coming." Dr. Mitchell reiterated (at pages 151 and 152 of her deposition) that her greatest concern was the patient's mitral valve. Yet, Dr. Mitchell testified (at pages 94 and 97 of her deposition) that "valvuloplasty doesn't correct this disease, it just helps it, hopefully makes it better."
The nursing notes indicated that 11:15 a.m. the patient was prepared for a TEE. However, the nursing notes stated that at 11:30 a.m. the TEE was canceled, as the patient could not lie flat and became very restless and tachypneic, with her blood pressure falling to 70/palp (i.e., the diastolic blood pressure was not being detected). She was placed in the Trendelenburg position (with her legs [*9]being higher than her head) and her vital signs were monitored frequently. Her blood pressure decreased to 60/45, and her pulse was 116. She was given a fluid challenge of 250 cc. A note regarding her respiratory condition stated that a chest x-ray showed pulmonary edema, rales present, more diffuse on her left side, the patient remaining tachypneic, and her oxygen saturation being at low 92-93%.
At 12 noon on October 1st, a nursing note stated that the patient had no signs of post-partum hemorrhage and that Heparin (an anti-coagulant or blood thinner) was ordered by an unknown CCU team physician (Dr. Gaba's deposition testimony at page 206; Dr. Mitchell's deposition testimony at page 271).[FN18] According to Dr. Mitchell's testimony (at page 188 of her deposition), the principal reason for the administration of Heparin was the patient's critically elevated pulmonary pressure and that Heparin was one of the therapies used for patients with pulmonary hypertension. Another, non-exclusive reason for the Heparin use, as per Dr. Mitchell (at page 190 of her deposition), was that the patient was at an increased risk for PE. However, Dr. Gaba, a cardiology fellow who worked with Dr. Mitchell, unequivocally testified (at page 64 of his deposition) that the patient was treated with Heparin for PE.
A 12:00 p.m. nursing note stated that a Heparin bolus[FN19] of 5,000 units was given, followed by a Heparin intravenous drip of 25,000 units and 250 cc of fluid, started at 9 cc/hr. The physician order authorizing Heparin stated that its duration was for three days. The note also indicated that the patient's urine output was blood tinged, that hematuria (blood in the urine) was present, but that there was no excessive bleeding from her vagina. A 2:43 p.m. nursing note indicated the hematuria was still present.
A 12:30 p.m. obstetrical follow-up note stated that the patient had possible PE and that Heparin was started. Notwithstanding this note, Dr. McCalla, an attending obstetrician, testified (at page 178 of his deposition) that he saw no indication for having a V/Q scan (ventilation/perfusion scan)[FN20] performed on the patient.
An untimed resident on-call note stated that the patient was still hypotensive and febrile, raised a question of septic shock, discontinued Gentamycin and Ampicillin and started her on other, stronger antibiotics. A 6:00 p.m. nursing note indicated that triple intravenous antibiotics were started. Dr. McCalla wrote an obstetrical note at 6:00 p.m. stating that the patient's temperature was 99.8º F, her pulse 113, her blood pressure 106/56, and her urine output 540 cc. His assessment was congestive heart failure secondary to severe mitral stenosis and pulmonary hypertension. His plan was to continue antibiotics as per an infectious diseases specialist; "continue CCU monitoring and [*10]management with cardiology team." He mentioned nothing about PE or Heparin, despite the 12:30 p.m. obstetrical follow-up note by another obstetrician.
A 10:00 p.m. progress note states that the patient's temperature was 99.8º F and Tylenol was given as per Dr. Gaba, her urine was rosy pink, and she continued to have shortness of breath with the respiration rate of 35 to 44. An 11:00 p.m. resident on-call note indicated the first reading of PTT (the partial thromboplastin time which is used to assess the coagulability of blood) was at 44.3 seconds (a normal range being 21 to 31 seconds) and stated "[w]e wouldn't [change] the Heparin dosage, because the [patient] is having hematuria (prefer to be on a lower side of PTT)."
October 2nd
On Friday, October 2nd, the nursing notes for 12:00 a.m. to 8:00 a.m. indicated that the patient continued to have periods of shortness of breath, her lungs had rales in the lower bases, and her respiration rate was 35 to 44. A 6:30 a.m. obstetrical resident's note by Dr. Connell and countersigned by Dr. McCalla recited that the patient stated that the shortness of breath had improved and that there was no vaginal bleeding. It noted that her pulse was 120, that she was tachypneic, and that her chest was positive for crepitations (cracking or creaking) bilaterally. It also noted that her lower extremities were positive for edema.
On October 2nd, the patient underwent a transesophageal echocardiogram (TEE). Dr. Gaba reported the results of the performing physician's findings,[FN21] as follows: no evidence of thrombus,[FN22] right atrium dilated, right ventricle dilated and mildly hypokinetic (slow moving), mitral valve doming, tricuspid valve thickened, severe mitral valve stenosis, severe tricuspid regurgitation, pulmonary artery dilated, left atrium dilated, and mild right ventricle hypokinesis. A TEE, according to Dr. Mitchell's testimony (at pages 310 and 315 of her deposition), is sensitive enough to catch thrombi as small as 2 mm. in size, although Dr. Salciccioli (at page 77 of his deposition) believed the threshold to be higher, at 5 mm. Dr. Gaba, a cardiology fellow, testified (at page 123 of his deposition) that a TEE was mandatory prior to a valvuloplasty.
An October 2nd cardiology follow-up note by Dr. Gaba stated that the patient's symptomology had improved, she had mild shortness of breath, her blood pressure was 100-110/60, and there was no vaginal bleeding. The plan was to continue triple antibiotics, continue Heparin, maintain PTT at 40 to 45 seconds, and perform a valvuloplasty. Dr. Gaba testified (at pages 153-154 of his deposition) that the CCU would have targeted a PTT therapeutic range of 45 to 50 seconds, but the CCU was keeping it slightly lower because the patient just had a delivery. He also testified (at page 154 of his deposition) that the patient was on Heparin because of the bed rest, the pulmonary edema, and the heart failure, and further stated that "coronary heart failure is a risk factor for clots in the legs, formation of clots in the legs," which could lead to PE (emphasis added).
A cardiology note by Dr. Mitchell referred to Dr. Gaba's note and listed problems of severe mitral stenosis, pulmonary hypertension with dilated hypokinetic right ventricle, severe congestive [*11]heart failure, question of sepsis, episodes of hypotension, systolic blood pressure of 60 the previous day, and temperature of 102º F. Dr. Mitchell also testified (at page 193 of her deposition) that the patient was receiving Heparin to keep her PTT at 1½ -2 times normal. The patient's PTT readings were 31.2 and 34.3 seconds on October 2nd (the second and third PTT readings, respectively), while a handwritten lab summary sheet indicated a PTT of 31.4 seconds on that day. All of those values, however, were below the initial PTT reading of 44.3 seconds obtained on October 1st when Heparin was started, below the 40 to 45 seconds range suggested by Dr. Gaba, and below the 1½-2 times normal range which Dr. Mitchell had targeted. Dr. Mitchell and Dr. Milani both indicated in their deposition testimony (at pages 195 and 114, respectively) that checking the dosages of Heparin in relation to the laboratory results was done by the interns, residents, and fellows, and that attending physicians were only made aware of major issues or problems.
Nursing notes from October 2nd indicated that the patient was again in the high Fowler's position (sitting in bed), using a non-rebreather oxygen mask, and remained tachypneic. Her pulse was 105-110, and her blood pressure readings ranged from 102-112/54-61. The Foley catheter was draining small amounts of blood-tinged urine. At 12:55 p.m. on October 2nd her blood pressure was 90/50. A 3:00 p.m. physician's order form directed that Heparin be increased to 10 cc/hour. At 3:15 p.m., Heparin was increased to 10 cc/hour, and her PTT was 31.4 seconds. A 11:00 p.m. physician's order form directed that Heparin be increased to 12 cc/hour. An RPN (resident's progress note) addendum at 11:40 p.m. indicated that PTT was 34.3 seconds and that Heparin was increased to 12 cc/hour. There was a notation below that indicating the patient's respiratory rate of 30-36 with a period of shortness of breath using abdominal muscles.
A resident's progress note at 2:30 p.m. by Dr. Masvy, an intern or resident in internal medicine who would go on rounds with Dr. Mitchell, stated under the assessment/plan: "pulmonary emboli cannot be R/O [ruled out] & continue Heparin @ 10 cc/hr & f/u [follow up] . . . PTT" (emphasis added). However, Dr. Mitchell testified (at page 207-208 of her deposition) that she did not order a V/Q scan on October 1st or 2nd to rule out PE because the patient was critically ill with congestive heart failure and severe pulmonary hypertension. According to Dr. Mitchell (at page 210 of her deposition), performing a V/Q scan on the patient in that condition would have increased her risk of having the procedure, while it had a low potential of making the diagnosis because of potential false positives. Dr. Mitchell testified (at page 248 of her deposition) that she did not consider the patient to have PE.
Dr. Mitchell testified (at page 51 of her deposition) that she went off duty on Friday, October 2nd, at approximately 6 p.m. and returned to the hospital on Monday, October 5th, at approximately 8:30 a.m. Non-party Dr. Milani was the CCU attending covering for the weekend of October 3rd and October 4th.
October 3rd
A nursing note early on Saturday, October 3rd, stated that patient continued to cough and that Heparin was increased to 12 cc/hour. Dr. Milani wrote a cardiology attending note which recited, among other things, blood pressure readings of 90-100/50-60, S1 and S2 opening snaps (which were consistent with mitral valve stenosis and pulmonary congestion), and that the patient was receiving Heparin. An 8:40 a.m. obstetrician chief resident's note indicated that the patient was on Heparin, but that it was subtherapeutic and to consider increasing it. The note also stated, once afebrile (without fever), consider valvuloplasty as per cardiology. A physician's order form timed 12:00 p.m. increased Heparin to 13 cc/hr. A nursing note timed 12:15 p.m. noted a PTT of 35 seconds and that Heparin was increased to 13 cc/hr. A 7:30 p.m. nursing note indicated that Heparin was [*12]continued at 13 cc/hr. A 10:00 p.m. physician's order form increased Heparin to 14 cc/hr. However, Dr. Milani testified (at pages 108-109 of her deposition) that she saw no evidence that the patient suffered from PE or deep venous thrombosis (DVT). She further testified (at page 112 of her deposition) that she did not order that Heparin be increased and that such orders, as reflected in the medical chart, could have only come from interns, residents, or fellows.
The cumulative lab report and the lab summary sheet both revealed the PTT readings of 35 seconds and 35.6 seconds on October 3rd. An 11:00 p.m. off-service note[FN23] by Dr. Masvy recited the history of hypotension and a current blood pressure of 90/50, and noted a PTT of 35 seconds and Heparin at 14 cc/hr. The note also indicated valvuloplasty on Wednesday, October 7th, when infection resolved, and reiterated that "pulmonary embolism can't be R/O [ruled out] & continue Heparin. Keep PTT at [approximately] 45" seconds (emphasis added).
October 4th
On Sunday, October 4th, an 8:40 a.m. obstetrical chief resident's note indicated that the patient complained of dizziness when standing, but no shortness of breath or chest pain. It reported crackles in the bilateral lower 2/3 section of her lungs, PTT pending, on Heparin, rule out PE. Dr. Mitchell testified (at pages 228-29 of her deposition) that they kept increasing the dosage of Heparin because other than the initial PTT reading of 44.3 seconds on October 1st, it never reached the therapeutic range. Dr. Milani wrote a cardiology attending note on October 4th, stating that a chest X-ray showed left lower infiltrate, that the patient felt much improved, that she had good air entry with 1/3 minimal bi-basilar crackles, S1 and S2 opening snaps, no murmur, and no clubbing, edema or cyanosis of the extremities. The note, however, stated that there was a decrease in Hematocrit from 43 on September 30th to 34, and indicated that she would expect Hematocrit concentration with aggressive diuresis. In the afternoon of October 4th, Dr. Milani discontinued Heparin "as unlikely to be pulm[onary] embolism" (emphasis added). Dr. Milani's note did not indicate a cause of the patient's potential bleeding (Dr. Mitchell's subsequent note of October 5th indicated hematuria as a result of a trauma from a Foley catheter as a potential cause of the patient's bleeding). Dr. Milani testified (at pages 280-282 of her deposition) that if hematuria was present, it was not necessary for her to record it in her chart notes, even though its presence would have been significant. Dr. Milani also testified (at pages 128-129, 131 of her deposition) that her treatment plan was to prepare the patient for a valvuloplasty and that she ruled out PE. She was aware, however, that if the patient had PE, Heparin would prevent new clots from forming and new emboli from lodging in the pulmonary vessels (at pages 157, 160).
An October 4th resident's progress note by Dr. Masvy referred to her October 3rd off-service note, indicating that the patient was stable with a dry cough and that Heparin would be discontinued. Her assessment and plan listed: (1) severe mitral stenosis " valvuloplasty on Wednesday, October 7th; (2) pneumonia " bilateral infiltrate; and (3) Hematocrit dropped to 34, rule out stress ulcers. An 11:00 p.m. resident on-call addendum recited that Heparin was discontinued and Hematocrit increased.
October 5th
Nursing notes from 8:00 p.m. on Sunday, October 4th, to 8:00 a.m. on Monday, October 5th, indicated that the patient continued to have a non-productive cough and bilateral crackles on [*13]auscultation, and that she remained in the high Fowler's position. An October 5th resident's progress note by Dr. Connell and co-signed by Dr. McCalla indicated possible valvuloplasty on Wednesday, October 7th. "Will follow [with] cardiology." An October 5th cardiology attending note by Dr. Mitchell, who took over the patient's care upon return to the hospital after the weekend, indicated that the patient was out of bed in a chair and breathing comfortably on oxygen via a nasal cannula. It noted blood pressures of 90-100/50-60, a few rales, increased S1, S2, no pedal edema, and no longer fulminant failure; awaiting valvuloplasty; follow up for hematuria, may have been due to trauma (Foley). Dr. Mitchell testified (at pages 50-52 of her deposition) that the fellow who covered over the weekend would have given her and Dr. Gaba an update and that they would have reviewed the patient's chart during the rounds, including to see if there were any changes over the weekend or changes to the patient's medications. Dr. Milani testified (at pages 173-74 of her deposition) that on Monday morning she would have discussed with the attending or the fellow that she took the patient off Heparin, although there are no notes by Dr. Milani to that effect in the patient's chart for that day.
Dr. Milani stated (at pages 188-189 of her deposition) that the patient's "case was extensively discussed amongst us [including Drs. Mitchell and Kwan]. And basically the understanding was that our issue here is mitral stenosis as the cause of a problem. So pulmonary embolus was a low " we consider a hundred different differentials in a patient who is sick, so this was one of the differentials considered, but it was low on our list."[FN24] However, Dr. Milani was the first and only physician who affirmatively stated in the patient's chart that the patient was unlikely to have PE.
Dr. Milani further testified (at page 174 of her deposition) that it was up to Dr. Mitchell to decide whether to re-start Heparin. Yet, in light of the decision to perform a valvuloplasty on the patient on Monday, October 5th, Heparin was not re-started, as Dr. Mitchell testified (at page 203 of her deposition).
The chart revealed that Dr. Kwan performed a percutaneous balloon mitral valvuloplasty on the patient on Monday October 5th. Dr. Kwan testified (at pages 45-47 of his deposition) that the determination about whether the patient needed a valvuloplasty "is done by the clinical cardiologist team" and that its timing is usually set by the CCU team. He testified (at pages 160, 212-213 of his deposition) that the procedure was performed on Monday because the patient's condition had improved over the weekend, although it remained "critical," and "everyone," including the attendings, the fellows, and the residents on the CCU team, and he and his fellow, decided to perform it on Monday, rather than on Wednesday as had been tentatively planned. Dr. Milani testified (at page 176 of her deposition) that the decision to perform a valvuloplasty on that day was jointly made by the attending physician (Dr. Mitchell in this case) and the interventional cardiologist (Dr. Kwan in this case). However, Dr. Mitchell testified (at page 216 of her deposition) that the final decision as to the timing of a valvuloplasty was up to Dr. Kwan alone.
An intern's accepting note indicated that the patient was scheduled for valvuloplasty, mild respiratory distress, coughing often, no wheezing but rales up to 2/3 of lungs, and very mild pedal [*14]edema. The note also indicated that the hematuria seems to have stopped. Nursing notes from 8:00 a.m. to 10:30 a.m. indicate that the patient continued to have a non-productive cough, crackles remained at bases. An October 5th obstetrical attending note by Dr. McCalla stated that the patient was doing well obstetrically and was awaiting valvuloplasty.
An October 5th nursing procedure note stated that at 3:00 p.m. the patient was brought to the cardiac intervention laboratory for cardiac catheterization and a valvuloplasty to be performed by Dr. Kwan. The note indicated that at 3:50 p.m., 15,000 units of Heparin was administered to the patient as per Dr. Kwan's order. It further indicated that at 4:15 p.m. the patient's blood pressure was 142/53, pulse 105, respiration rate of 30, oxygen saturation of 96%, but that the patient was "coughing incessantly." A 4:30 p.m. note indicated that the procedure was completed without complications. At time of the patient's departure from the cardiac intervention laboratory, no bleeding or hematoma was noted. Dr. Kwan testified (at page 60 of his deposition) that he administered Heparin during the valvuloplasty procedure at a point when there was a risk of clotting. He administered to the patient a one-time dosage of 15,000 units of Heparin, although his usual practice was to give 5,000 units, and he did not know why he gave the patient three times his usual dosage (at page 61 of his deposition). He testified (at page 198 of his deposition) that after giving the patient Heparin during the procedure, he checked her activated clotting time (ACT) because it took too long to measure the PTT, and that an ACT reading of 202 seconds was acceptable (the minimum being 200 seconds, according to Dr. Kwan at page 199 of his deposition). Dr. Kwan recommended no medications following the valvuloplasty, leaving that decision to the CCU team (at page 189 of his deposition).
Dr. Salciccioli interpreted an echocardiogram, which was performed shortly after the valvuloplasty, and his report found the mitral valve orifice to be 1.7 cm. sq.[FN25] As Dr. Kwan testified (at page 73 of his deposition), this was more than double the original mitral valve opening of .8 cm. sq., and in the absence on the echocardiogram of pericardial effusion (a fluid collection that develops between the pericardium, the lining of the heart, and the heart itself) and cardiac tamponade (when the heart is squeezed by fluid that collects inside the sac that surrounds it), the valvuloplasty was a success. He also noted (at pages 75-76 of his deposition) that pulmonary pressure decreased to 64 (systolic) when before the procedure it was between 100 and 120 (systolic). Dr. Kwan testified (at page 175 of his deposition) that he expected the patient to have a better ability to do the activities of daily living after the procedure. Dr. Salciccioli testified (at pages 43-44 and 65-66 of his deposition) that a mitral valve apex of 1.7 cm. sq. indicated mild mitral stenosis, which he would not expect to have any impact on a person's activities of daily living. While a later October 8th echocardiogram indicated a mitral valve opening of only 1.5 cm. sq., Dr. Salciccioli, who interpreted it, testified (at pages 83-84 of his deposition) that his measurement of 1.5 cm. sq. was not statistically different from 1.7 cm. sq. and that both were indicative of only a mild mitral stenosis. Dr. Salciccioli also found on the October 8th echocardiogram that the patient's pulmonary hypertension was down to 50 (systolic), which was less than half of what it had been prior to the valvuloplasty (at page 84 of his deposition).
The physician's order forms included cardiac post-cath orders for a ten-pound sandbag to be [*15]applied to each groin for three hours, and strict bed rest for eight hours. Dr. Kwan testified (at page 99 of his deposition) that, after catherization, sandbags were placed on the groin to create pressure and to stop bleeding. A nursing note at 9:20 p.m. indicated: bed rest maintained, right and left legs kept extended, and the patient was comfortable and in no distress. Heparin was not resumed after the procedure was over on October 5th. Dr. Kwan testified (at pages 59-60 of his deposition) that once the procedure was over, Heparin could have been restarted if there was no bleeding. Dr. Kwan further testified that the decision not to heparinize the patient was made by the CCU attending or her team (Dr. Mitchell). However, Dr. Milani testified (at pages 251-52 of her deposition) that it was the job of both the CCU attending of record (Dr. Mitchell) and the interventional cardiologist (Dr. Kwan) to plan after the valvuloplasty.
Dr. Mitchell testified (at page 234 of her deposition) that she left the hospital at approximately 5:30-6 p.m. on October 5th, and did not see the patient who, at that time, was still at the cardiac intervention laboratory.
October 6th
On the morning of Tuesday, October 6th, a nursing note stated that the patient was assisted with care, was sleeping for long periods, and was easily arousable. A 6:30 a.m. nursing note stated that the patient requested to sit out of bed, was awake and alert, that the cardiac monitor showed extreme bradycardia, heart rate 51-"no," indicating that no pulse was palpable. The note stated that atropine 1 amp was given, the patient became unresponsive, a cardiac arrest code was called, oxygen was administered, the patient was "ambubagged" (i.e., room air was forced into the patient via a device), then intubated, code team responding. A 7:40 a.m. cardiology fellow on-call note stated, called to respond to cardiac arrest code; status post-mitral valvuloplasty; apparently had an uneventful night till about 6:00 a.m. this morning when she suddenly collapsed during phlebotomy; noted to be apneic and bradycardic; received atropine with response of tachycardia but no pulse; CPR commenced; palpable pulse was subsequently restored with blood pressure of 112/68 and pulse of 138. After describing the resuscitation efforts, the note stated that the patient was intubated and attended by interventional cardiology staff. Dr. Mitchell recalled (at page 235 of her deposition) that she received a telephone call about the event at approximately 7:30 a.m., which was one hour before her regular shift at the hospital began.
A 10:20 a.m. obstetrical chief resident's note indicated that patient had an episode of unresponsiveness and needed CPR; patient remained in guarded condition. It stated that the patient was on Dopamine to raise her blood pressure and was started on Heparin, and that the patient began to have epistaxis (a nose bleed) and Heparin was stopped. The assessment/plan said to consider V/Q scan, possible Heparin, and to continue following with cardiology. An untimed resident's progress note recited the morning's events and stated that the assessment/plan was: "(1) PE? Scheduled for pulmonary angiogram/thrombolysis/ thrombectomy; . . . on Heparin 800 U/hr (after bolus 3,000) bleeding from the nose ENT called and packed her nose.(2) . . . PTT . . .(4) Neurology consult requested . . ." (emphasis added).
A neurology consult noted that the patient's pulse was not felt for about an hour during the morning, that she had been unresponsive since being resuscitated, and that she had repetitive brief [*16]jerks. The neurologist diagnosed post-anoxic myoclonus.[FN26]
The physician's order forms reflected three 8:30 a.m. orders for Heparin: (1) 3,000 units, IV bolus; (2) 25,000 units in 250 cc distilled water, 10 cc/hr, IV; and (3) 25,000 units in 250 cc distilled water, 8 cc/hr, IV. The cumulative laboratory report had PTT values of 44.8, 32.1, and 31.6 seconds. The handwritten laboratory summary sheet recited one PTT value of 31.2 seconds. An untimed resident on-call note indicated a PTT reading of 31.2 seconds; increase Heparin drip from 8 to 9 cc/hr; head CT scan, no bleed or acute CVA (cerebrovascular accident); repeat study.
Dr. Mitchell wrote a 4:15 p.m. cardiology attending note which stated that the patient "coded for a long period"; "required pressors" (medications which elevate blood pressure); blood pressure was in the range of 110-140/54-98; pulse 110-120; lungs: diffuse rales/rhonchi, increased S1, S2, systolic murmur; echocardiogram: no proximal pulmonary thrombus seen. Dr. Mitchell's note continued: "?? of pulm emboli
?neurological event
must r/o [rule out] sepsis (though event was acute)
. . .
High risk for pulmonary angio but reportedly [decreased] risk with new dyes.Will start with V/Q scan & f/u [follow up] after.
. . .
O.B. - gyn follow-up appreciated.. . . Status: guarded prognosis" (emphasis added).
The neurology consult noted that the patient had repetitive brief jerks and was diagnosed with post-anoxic myoclonus. Dr. Salciccioli testified (at pages 76-77 of his deposition) that a TEE performed by him on the patient on that day revealed no clots in any part of her heart.
October 7th
On Wednesday, October 7th, an obstetrical note timed 3:30 a.m. stated, rule out pulmonary emboli, rule out massive pulmonary embolism, noted a blood pressure of 93/55 and bilateral crackles, and indicated that the extremities were in the TED (compression) stockings. A 3:40 a.m. obstetrical resident's note co-signed by Dr. McCalla indicated that the patient was non-responsive; rule out PE; "will continue to monitor [with] CCU team"; "VQ scan today?" (emphasis added). A 7:00 a.m. note by Dr. Connell stated, no changes; will continue to follow, and Dr. McCalla wrote, "will continue to follow with you."
An 11:00 a.m. cardiology note by Dr. Mitchell described the limitations of a V/Q scan, as follows: "VQ scan to be done [with] special tracer in am (tracers to be flown in today). Because of long standing pulm[onary] HTN [hypertension], distal mismatch expected. Special tracers will hopefully provide more useful info." (emphasis added). The note also stated, continue Heparin and follow PTT, and further stated that the mitral valve apex was 1.7 cm. sq.
October 8th - 9th
An October 8th typed report of the V/Q scan stated under the heading, "Impression": [*17] "The V/Q mismatched [[FN27]] abnormalities in both lower lobes are consistent with a high probability for pulmonary embolism" (emphasis added).
Dr. Gaba testified (at page 65 of his deposition) that "high probability" was the closest a radiologist could come to on a V/Q scan in terms of a diagnosis of PE.
Dr. Kwan's angioplasty report of the October 5th valvuloplasty procedure was written some time after the V/Q scan had been performed. His report stated: "Patient had cardiac arrest next morning following the successful valvuloplasty. V/Q scan was high probability consistent with massive pulmonary embolism."
Dr. Kwan concluded that the valvuloplasty was "successful" and recommended, "[c]ontinue medical therapy."
On October 8th, Dr. Mitchell wrote a cardiology attending note stating that the V/Q scan indicated a high probability for PE and questioned whether an embolus came from the pelvis. An October 9th cardiology attending note by Dr. Mitchell indicated that the patient was intubated and had two brief seizures. It described the patient's neurological condition as "status post PE; anoxic encephalopathy?[[FN28]]; seizures reported this am" (emphasis added). Regarding pulmonary embolism, Dr. Mitchell wrote, "PE IV Heparin (High probability VQ - 3 lobes)" (emphasis added). Dr. Mitchell's note listed the patient's cardiac condition as stable. Dr. Mitchell testified (at page 354 of her deposition) that it was more likely that some unknown cause was responsible for the patient's cardiac arrest other than PE, although she did not so indicate in the patient's chart. Dr. Mitchell's opinion (at page 399 of her deposition) was that PE played a low probability in causing the patient's cardiac arrest. Notwithstanding Dr. Mitchell's testimony, however, once she learned the results of the V/Q scan, most of her chart notes consistently referenced only PE and no longer contained a differential diagnosis, such as pulmonary hypertension or right heart failure. In fact, a chest X-ray performed on October 8th found that the patient's pulmonary edema had resolved.
October 15th - November 9th
An October 15th 6:30 a.m. obstetrical resident's note by Dr. Connell stated, status post-PE and CPR. Under pulmonary condition, it stated, status post-PE (increased probability); patient anticoagulated on Heparin. A 7:30 a.m. October 15th resident's progress note stated, status post-mitral valvuloplasty (day 10); status post-partum (day 15); status post-PE (day 9); status post-CPA/CPR (day 9) in a coma since. An October 16th CCU attending note by Dr. Mitchell stated, "status post-PE; start Coumadin [oral anti-coagulant] tonight" (emphasis added). Dr. Mitchell testified (at page 361 of her deposition) that as of October 15th, it was clear that the patient had suffered severe brain damage as a result of a cardiac arrest.
Notes by Dr. Gaba and a resident on October 19th indicated that the patient was status post-PE, which Dr. Gaba characterized in his pre-trial testimony as "a presumptive diagnosis" (at page 183 of his deposition). An October 19th CCU attending note by Dr. Mitchell indicated, long-term [*18]rehabilitation (neurological) facility to be addressed. An ENT pre-operative note from that night indicated that a tracheostomy was to be performed. The patient's PTT was 50 seconds, and in anticipation of the surgery, there was a pre-op order to stop Heparin. A tracheostomy was performed on October 20th for a pre-operative diagnosis of prolonged intubation.
On October 22nd, Dr. Gaba wrote a cardiology follow-up note that stated, "status post cardiac arrest secondary to PE" (emphasis added). A resident's progress note of that day stated, status post-PE (day 16). A nursing note indicated that the patient was semi-comatose. An October 29th resident's progress note stated that the patient was status post-PE (23 days). An October 30th obstetrical service note stated, status post-PE with CPR. Dr. Mitchell's final note on this patient was dated October 30th and stated:
"1 day after valvuloplasty pulm[onary] embolus 3 lobes neuro-status after long CPR unresponsive to verbal stimuli.
* * * #Neuro (anoxic brain damage [with] large PE)" placement in neuro-rehab being planned." seizures after cardiopulm[onary] arrest Tegretol[[FN29]] #Pulms/p [status post-] PEAnticoagulationOxygenation via trach[eal tube] [with] collar . . ." (emphasis added).
In their respective notes, Drs. Mitchell and Gaba stated, notwithstanding their testimony to the contrary, that the patient suffered a cardio-respiratory arrest secondary to PE.
Dr. Mitchell testified (at page 377 of her deposition) that as a result of the patient's brain damage, she was unable to perform any activities of daily living without assistance. On November 9th, the patient was discharged to Jamaica Hospital for neurological rehabilitation.
A summary or "face" sheet from Downstate Hospital lists "pulmonary embolism/infarct" as one of the patient's secondary diagnoses, the primary diagnosis being "early onset delivery." The hospital course section, prepared by Dr. Salciccioli, stated: "Patient apparently delivered child successfully. Underwent balloon valvuloplasty. Afterwards while recuperating in CCU, apparently had respiratory arrest (see note 10/6). Sustained anoxic encephalopathy and did not fully recover. Thought to have pul[monary] emboli. Eventually transferred to long-term facility after supportive care" (emphasis added).
Dr. Salciccioli testified (at pages 109-110 of his deposition) that if the patient had not suffered the hypoxic encephalopathy, she would have been functional.
[*19]The Aftermath
Records from Jamaica Hospital reflect that the patient remained in that institution until January 5,1999, and was then transferred to a Silvercrest extended care facility which admitted her with the status post-anoxic encephalopathy, status post-tracheostomy, and history of seizure episodes. On September 14, 2001, the patient went into respiratory failure and expired. The cover sheet from the Silvercrest facility stated that the patient's diagnosis was "RHD," which is commonly used as an abbreviation for rheumatic heart disease.
This action was commenced by the filing of a summons and complaint on August 30, 2001. Plaintiff's bill of particulars was served on or about March 12, 2001. Plaintiff was granted leave to amend the complaint to include wrongful death on behalf of plaintiff's decedent on August 20, 2003.
Plaintiff filed his note of issue on May 22, 2008. Dr. McCalla served his motion for summary judgment on July 18, 2008. Dr. Tak Kwan served his cross motion on July 23, 2008. Drs. Gaba, Connell, and Chiu served their joint cross motion on September 15, 2008. Dr. Mitchell served her cross motion on September 18, 2008.
Motions for Summary Judgment
"The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that such a departure was a proximate cause of the plaintiff's injury" (Keevan v Rifkin, 41 AD3d 661, 662 [2d Dept 2007]; DiGiaro v Agrawal, 41 AD3d 764, 767 [2d Dept 2007]). " [O]n a motion for summary judgment, a defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby'" (Keevan, 41 AD2d at 662, quoting Williams v Sahay, 12 AD3d 366, 368 [2d Dept 2004]). Defendant must make this showing through medical records and competent expert affidavits (Jones v Ricciardelli, 40 AD3d 935, 935 [2d Dept 2007]). " Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to lay bare his or her proof and demonstrate the existence of a triable issue of fact'" (DiGiaro, 41 AD3d at 767, quoting Chance v Felder, 33 AD3d 645, 645-646 [2d Dept 2006]). " In opposition, a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury'" (Keevan, 41 AD3d at 662, quoting Thompson v Orner, 36 AD3d 791, 792 [2d Dept 2007]). " General allegations of medical . . . malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical . . . malpractice, are insufficient to defeat defendant physician's . . . summary judgment motion'" (Starr v Rogers, 44 AD3d 646, 648 [2d Dept 2007], quoting Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). On the other hand, " [s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury'" (Bengston v Wang, 41 AD3d 625, 626 [2d Dept 2007], quoting Feinberg v Feit, 23 AD3d 517, 519 [2d Dept 2005]).
CPLR 3212 (a) provides that "the court may set a date after which no [summary judgment] motion may be made," and that no summary judgment motion shall be made more than 120 days after the filing of a note of issue, "except with leave of court on good cause shown." The local rule enacted by the Second Judicial District, i.e., Kings County Supreme Court Uniform Civil Term Rule 13, provides that "[n]o motion for summary judgment may be made more than 60 days after filing a Note of Issue . . ., except with leave of the Court on good cause shown." It matters not that the motion was otherwise served within the 120-day period prescribed by CPLR 3212 (a) (see Giudice v Green 292 Madison, LLC, 50 AD3d 506 [1st Dept 2008]; Glasser v Abramovitz, 37 AD3d 194 [1st Dept 2007]). [*20]
Under this local rule, all of the three instant cross motions for summary judgment are untimely (see Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389, 392 [2d Dept 2008]). The 60-day cut off date was July 21, 2008, but Drs. Kwan, Gaba/Connell/Chiu, and Mitchell served their respective cross motions on July 23, September 15, and September 18, 2008, respectively. None of these parties provide any reason for their failure to serve their motions within 60 days of the filing of the note of issue as required by Rule 13.[FN30] Accordingly, these summary judgment motions may be denied based on the movants' failure to demonstrate "good cause" for their delay (see John P. Krupski & Bros., Inc. v Town Bd. of Town of Southold, 54 AD3d 899, 901 [2d Dept 2008]; Hesse v Rockland County Legislature, 18 AD3d 614 2d Dept 2005]).
However, the court notes that since the deposition of a key non-party witness, cardiologist Dr. Milani, was completed on September 15, 2008, defendant cardiologists Drs. Mitchell, Gaba, and Chiu, extensively relied on such deposition to make their case for summary judgment and served their motions on September 15, 2008 or shortly thereafter. As such, the court will deem the motions by such defendants to be timely and will consider them on the merits. The court will also entertain the request for relief by Dr. Connell because "an untimely motion . . . for summary judgment may be considered where . . . a timely motion for summary judgment was made on nearly identical grounds" (Grande v Peteroy, 39 AD3d 590, 591-92 [2d Dept 2007]). The grounds for relief requested by Dr. Connell, a resident, are the same as those asserted by her co-movants, fellows Dr. Gaba and Chiu. This leaves Dr. Kwan's untimely motion which was served on July 23, 2008, or two days after the expiration of the 60-day deadline imposed by Rule 13. Dr. Kwan's theory differs from the theories asserted by other defendant physicians, rendering the relation-back doctrine of the Grande case inapplicable. Yet, even if the court were to consider Dr. Kwan's untimely motion, in conjunction with all other pending summary judgment motions, the result would be the same as the court denies it.
Dr. McCalla's Motion for Summary Judgment
Dr. McCalla, an attending physician in obstetrics at Downstate Hospital at all relevant times, moves for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. In support of his motion and based upon the affirmation of his expert, Dr. Daniel W. Skupski,[FN31] Dr. McCalla argues that the treatment rendered by him was within the accepted medical standards and caused the patient no injuries. Dr. Skupski reaches his opinion based on the following:
1) The CCU team was managing the patient's cardiac care, while Dr. McCalla managed the patient's labor and delivery only.
2) It was appropriate for the patient not to have been on anticoagulation therapy during the [*21]labor and delivery of her child. This is supported by the fact that her September 30th transesophageal echocardiogram showed no evidence of clots.
3) Following the delivery, Dr. Skupski asserts, Dr. McCalla properly deferred to the cardiology team that was responsible for the patient's care. From an obstetrical point of view, the post-partum course, according to Dr. Skupski, was uneventful and there were no complications from the delivery.
4) Dr. Skupski asserts that the decision whether or not to discontinue the anticoagulation therapy three days post-partum (October 4th) was not Dr. McCalla's decision to make. In Dr. Skupski's view, It was a judgment call made by the team of cardiologists that were responsible for managing the patient's cardiac care. In Dr. Skupski's opinion, Dr. McCalla, as a maternal/fetal medicine specialist, was not in a position to second-guess the cardiologists' treatment of the patient's heart condition.
5) At all times prior to her being placed on Heparin by the cardiologists on October 1st, the patient's signs and symptoms were all consistent with her diagnosis of cardiac valvular disease, and only that diagnosis, according to Dr. Skupski. Even assuming that the patient were suffering from recurrent PE at the time Dr. McCalla was treating her, it was not his role, Dr. Skupski argues, to diagnose or treat that condition, as it was up to the cardiology team that was treating her to manage that condition to the extent that it existed while she was also under Dr. McCalla's care.[FN32]
The court is satisfied that based on Dr. Skupski's affirmation, Dr. McCalla has made a prima facie showing that he did not depart from accepted medical practice and that his actions or omissions did not contribute to plaintiff's injuries.
In opposition, however, plaintiff submits a detailed medical affirmation of Bernard N. Nathanson[FN33] who opines that Dr. McCalla departed from the standards of good and accepted medical and obstetrical practice in the diagnosis, care, and treatment he rendered to the patient and that those departures were substantial contributing factors to the injuries sustained by the patient and to her death. In preparing his affirmation, Dr. Nathanson reviewed the patient's medical records at Kings County Hospital, Downstate Hospital, Jamaica Hospital, and Silvercrest; the deposition transcripts of Drs. McCalla, Mitchell, Gaba, Chiu, Kwan, Salciccioli, and Milani; and the affirmations of Drs. Skupski and Jonathan M. Chen (the latter is the medical expert whose affirmation is jointly offered by Drs. Gaba, Connell, and Chiu).
Dr. Nathanson's thorough analysis indicates that Dr. McCalla departed from the standards of good and accepted medical and obstetrical practice, and by doing so substantially contributed to [*22]plaintiff's injuries, for the following reasons:
1) Dr. McCalla failed to recognize that the patient was at a high risk for venous thrombotic disease, including PE and DVT, and failed to take appropriate steps after the delivery of her baby on October 1st to rule out and prophylactically treat PE. According to Dr. Nathanson, PE and DVT are obstetrical complications that may present themselves during pregnancy and during the post-partum period for up to six weeks after delivery, and that post-partum patients are known and understood by obstetricians to be at increased risk for hypercoagulability, which increases the risk of thrombosis and PE. Dr. Nathanson disagrees with Dr. Skupski's narrow view that treatment of DVT and PE lies solely in the province of cardiologists.
2) Dr. McCalla failed to take steps to rule out PE in the patient who had multiple risk factors for PE, including shortness of breath, tachycardia, tachypnea, hypotension, orthopnea, a non-productive cough, blood-tinged secretions, wheezing/rales/crackles and fever, after the delivery of the placenta at 12:53 a.m. on October 1st. According to Dr. Nathanson, Dr. McCalla should have ordered a V/Q scan.[FN34]
3) By 6:30 a.m. on October 1st when the patient's "scant vaginal bleeding" was noted, Heparin should have been ordered prophylactically to treat PE pending the results of the tests and been continued unless and until PE was ruled out by a V/Q scan, according to Dr. Nathanson.
4) The patient had been experiencing pulmonary emboli on October 1st, according to Dr. Nathanson, as indicated by the hypotension and severe tachypnea she experienced that morning. That, plus the anoxic event that she suffered on October 6th as a result of PE indicated that she had PE on the morning of October 1st. If the proper tests had been ordered and performed on October 1st or 2nd, they would have revealed that she had PE, and as a result, the patient would have been kept on Heparin and the valvuloplasty would have been delayed until it was safe to take her off Heparin.
5) Dr. Nathanson states that although Heparin was started at 12 noon on October 1st for suspected PE, Dr. McCalla failed to order any tests to rule out PE.
6) While the patient continued to be under Dr. McCalla's care on October 2nd (as evidenced by his notes in the patient's chart), he continued to fail to order tests to rule out PE, even though Dr. McCalla knew that the patient continued to have tachycardia and tachypnea, crepitations bilaterally, and edema in both legs, which are the symptoms consistent with PE.
7) Dr. McCalla's continuing failure to order the tests to rule out PE represented his ongoing departure from the standards of good and proper medical and obstetrical care over the weekend of October 3rd and 4th. It appears from the chart notes that Dr. McCalla was present in the hospital on Sunday, October 4th, as evidenced by his co-signing a resident's note on that day, when the obstetrical [*23]resident reported to him that the patient complained of dizziness when standing and had crackles in bilateral lower 2/3 of her lungs, both of which findings were suggestive of PE. Dr. Nathanson asserts that Dr. McCalla's failure to order a V/Q scan to rule out PE were substantial contributing factors to the patient's injuries. Had that test been ordered and performed on either October 2nd, 3rd, or 4th, it would, with reasonable medical certainty, have revealed PE, and would have required the patient to remain on Heparin until her condition was resolved or otherwise treated.
8) Dr. McCalla departed from the standards of good and accepted medical and obstetrical practice on Monday, October 5th, by failing to recommend that Heparin be restarted and by failing to order a V/Q scan to rule out PE.
Dr. Nathanson then addresses and rejects the opinion of Dr. McCalla's expert, Dr. Skupski, that as a specialist in obstetrics and maternal/fetal medicine Dr. McCalla was not in a position to "second-guess" the cardiologist's decision to discontinue Heparin three days post-partum, and that he had no responsibility for diagnosing and treating PE in the patient. Dr. Nathanson states that multiple notes in the patient's chart, including notes by Dr. McCalla and his obstetrics resident, Dr. Connell, indicate that the obstetricians would continue to follow the patient with the cardiologists. Moreover, Dr. Nathanson notes, PE is an obstetrical complication for which post-partum patients are known and understood by obstetricians to be at increased risk. Therefore, according to Dr. Nathanson, obstetricians must be particularly sensitive to and be aware of the signs and symptoms of PE, and must take appropriate medical action when such signs or symptoms are presented in a post-partum patient. That is why, Dr. Nathanson points out, the first physician progress note in the chart concerning possible PE and indicating that Heparin was started was an October 1st obstetrical follow-up. Dr. Nathanson asserts that diagnosing, treating, and preventing PE fall squarely within the realm of the obstetrics and maternal/fetal medicine.[FN35] Therefore, Dr. Nathanson opines with a reasonable degree of medical certainty that Dr. McCalla remained responsible for properly diagnosing and treating the patient's condition in regard to PE while she was in the CCU. Finally, Dr. Nathanson characterizes as patently inaccurate Dr. Skupski's assertion that the patient's signs and symptoms were "only" consistent with the diagnosed cardiovascular disease.
Dr. McCalla submits a reply affirmation from his expert, Dr. Skupski, in which he seeks to rebut Dr. Nathanson's allegations of malpractice. In his reply affirmation, Dr. Skupski asserts that the patient's symptoms did not allow anyone to make a distinction between PE or mitral stenosis as their cause. According to Dr. Skupski, the patient had no symptoms that were pathognomonic (i.e., definitively diagnostic for a particular disease) for PE. Thus, Dr. Skupski asserts, although obstetricians are familiar with the signs and symptoms of PE, they must defer to the cardiologists because obstetricians do not provide care for patients with severe mitral stenosis often enough to be able to determine if the clinical suspicion is high enough to justify the risk of anticoagulation therapy. Moreover, although obstetricians understand that the post-partum state is one with a higher risk for PE, they do not place every post-partum patient on Heparin because of that risk. Rather, [*24]according to Dr. Skupski, the prospective decision for anticoagulation is in the realm of the cardiologist. Dr. Skupski reiterates that at all times during Dr. McCalla's involvement in the patient's treatment, she was under the direct care of a team of cardiologists. Whether to heparinize the patient or subject her to a V/Q scan was a judgment call to be made by the cardiologists based on their assessment of the risk of PE, the suspicion based on the signs and symptoms, and the risks of the diagnostic tests and the therapies being considered, according to Dr. Skupski.
Furthermore, Dr. Skupski asserts that in concluding that a V/Q scan should have been ordered and anticoagulation continued, Dr. Nathanson ignores the risks to the patient of both the studies necessary to rule out the diagnosis of PE, and of the Heparin therapy itself. Lastly, Dr. Skupski notes that the simple fact that a PE may have occurred later does not mean that the initial decision made to stop Heparin was wrong.
To summarize, Dr. Skupski and Dr. Nathanson, the respective experts for Dr. McCalla and plaintiff, disagree as to whether Dr. McCalla departed from good and accepted medical and obstetrical practice by failing to take steps after the delivery of the baby on October 1st " and continuing from October 2nd through 4th " to rule out and prophylactically treat PE by ordering a V/Q scan and anticoagulation therapy. These experts also disagree as to whether Dr. McCalla departed from good and accepted medical and obstetrical practice by failing to recommend that Heparin be restarted on October 5th. They further disagree as to whether Dr. McCalla's alleged departures proximately caused plaintiff's injuries.
It is well established 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 Monroy v Glavas, 57 AD3d 631, 632 [2d Dept 2008]; Lovett v Interfaith Med. Ctr., 52 AD3d 578, 580 [2d Dept 2008]). Plaintiff and Dr. McCalla here submit conflicting medical expert opinions on the issue of whether Dr. McCalla deviated from the requisite standard of care in treating the patient and whether any such deviation contributed to the patient's cardiac arrest. A review of the record, including the affirmations of the plaintiff's expert, reveals that there are triable issues present regarding the conduct of Dr. McCalla in the treatment of the patient (see Boutin v Bay Shore Family Health Ctr., 59 AD3d 368 [2d Dept 2009]; Jankowski v Sherman, 137 AD2d 492 [2d Dept 1988]). Accordingly, summary judgment in Dr. McCalla's favor with respect to the first, third and fifth causes of action (medical malpractice, loss of services, and wrongful death, respectively) set forth in the amended complaint is inappropriate.
Dr. McCalla also seeks to dismiss plaintiff's second cause of action for lack of informed consent insofar as asserted against him. Plaintiff has not opposed this branch of Dr. McCalla's motion and, accordingly, such cause of action is dismissed.
Dr. Mitchell's Cross Motion for Summary Judgment
Dr. Mitchell, an attending physician in non-interventional cardiology at Downstate Hospital at all relevant times, cross-moves for summary judgment dismissing the complaint and all cross claims insofar as asserted against her. In support of her cross motion and based upon the affirmation of her expert, Dr. Edward Katz,[FN36] Dr. Mitchell argues that there is no indication of any deviation from the standards of practice of cardiology as they existed in 1998 in her treatment of the patient. However, the affirmation of Dr. Katz contains several misstatements or omissions contradicted by the record, as more fully set forth below: [*25]
1) Dr. Katz states that Dr. Mitchell was the physician who initiated Heparin for prophylaxis of PE when she first saw the patient on October 1st. That statement is incorrect, as the name of the prescribing physician is illegible in the hospital chart and several deponents have been unable to decipher it. It was not Dr. Mitchell's signature. Moreover, according to Dr. Mitchell (at page 188 of her deposition), the principal purpose of the Heparin administration was to reduce the patient's critically elevated pulmonary pressure, not to prevent PE.
2) Contrary to Dr. Katz's statement, the cardiology fellows and residents, and not Dr. Mitchell, increased the dosage of Heparin in an attempt to reach the prophylactic level. Next, except in one instance, the PTT blood levels on October 1st and 2nd were inadequate to reach the therapeutic goal of 1½ -2 times normal. While in Dr. Katz's opinion the actual levels were adequate for treatment of the patient's pulmonary hypertension, the thrust of the plaintiff's case is that the patient should have been treated for PE. In fact, Dr. Mitchell admitted (at page 190 of her deposition) that one of the reasons for anti-coagulation was the patient's increased risk for PE.
3) Next, Dr. Katz enumerates various reasons why a valvuloplasty could not have been immediately performed on the patient, such as her congestive heart failure, pulmonary hypertension, and fever. Dr. Katz's position misses a critical point advanced by plaintiff: it was PE, not a delay in valvuloplasty, that allegedly caused the patient's cardiac arrest.
In addition, Dr. Katz makes a number of assertions, which are directly contradicted by the affirmation of plaintiff's expert, Dr. Bruce Charash,[FN37] as to:
1) Whether the patient's symptoms were consistent with only the diagnosis of severe mitral stenosis and pulmonary hypertension and she had no signs or symptoms of PE or DVT while Dr. Mitchell was treating her;
2) Whether a V/Q scan to rule out PE was indicated;
3) Whether a repeat TEE to rule out new blood clots before the performance of the valvuloplasty on October 5th was indicated; and
4) Whether Dr. Mitchell was required to re-start Heparin on October 5th.
Even if Dr. Katz's affirmation were considered adequate to satisfy Dr. Mitchell's burden of making a prima facie case of entitlement to summary judgment (and it is not), the affirmation of plaintiff's expert, Dr. Charash, would rebut Dr. Mitchell's case as made out by her expert, Dr. Katz.[FN38] In that regard, plaintiff's cardiology expert, Dr. Charash, opines with a reasonable degree of medical certainty that Dr. Mitchell departed from proper medical and cardiological practice in failing to order a V/Q scan to rule out PE. According to Dr. Charash, Dr. Mitchell, the attending cardiologist to the CCU for the month of October, took over the cardiac care for the patient as of 8:00 a.m. on the morning of October 1st and had available to her all of the information previously collected, such that the patient was post-partum, immobile and in bed, that she had edema of the lower extremities, that she had mitral valve stenosis, pulmonary edema and right heart failure. Dr. Nathanson argues that [*26]Dr. Mitchell also knew or should have known that the patient had shortness of breath, tachycardia, tachypnea, hypotension, orthopnea, a non-productive cough, an instance of blood-tinged secretions, fever, and wheezing/rales/crackles, including in the lower lungs. The notes from that morning indicated that the patient continued to have tachypnea, tachycardia, hypotension, and rales. In fact, Heparin was started at 12:00 noon, and a 12:30 p.m. obstetrical follow-up concluded that the patient had possible PE. That, according to Dr. Charash, is what Dr. Mitchell should have done when she came on duty several hours earlier, i.e., she should have suspected PE and ordered Heparin. However, while Heparin was eventually started and PE was suspected, Dr. Mitchell (or any other treating physician for that matter) never ordered any test to rule out PE in the patient.
According to Dr. Charash, a V/Q scan did not pose a great risk for the patient in her condition because it was necessary to rule out life-threatening PE. Therefore, Dr. Charash asserts, the standards of good and accepted medical and cardiological practice required that a V/Q scan be ordered and that the patient be properly anticoagulated with Heparin until the scan could be performed. The failure of Dr. Mitchell to order such scan on October 1st was, according to Dr. Charash, a departure from proper practice. It is further Dr. Charash's opinion with a reasonable degree of medical certainty that this departure by Dr. Mitchell was a substantial contributing factor to the patient's injuries and eventual death. Had a V/Q scan been ordered on October 1st, Dr. Charash asserts, it would likely have been performed, and pursuant to the standards of proper practice, should have been performed by no later than October 3rd. Dr. Charash believes that such a scan would have revealed that the patient had been experiencing pulmonary emboli, that once the test results were obtained the patient would have been kept on Heparin and the valvuloplasty would have been delayed until it was safe to take the patient off Heparin, and that the patient would never have suffered the anoxic event. Next, Dr. Charash asserts that after Dr. Milani stopped Heparin on Sunday, October 4th, Dr. Mitchell should have re-started Heparin on Monday, October 5th, because there was no justification for discontinuing Heparin without first properly ruling out PE.
The court is concerned in the current procedural posture of this case with the evidence most favorable to plaintiff (see Nicklas v Tedlen Realty Corp., 305 AD2d 385, 386 [2d Dept 2003]). Here, such evidence establishes that the preferred course of care was to keep the patient on Heparin and that the unnamed cardiologist treating her initially charted such course as proper care. Dr. Mitchell failed to follow that course, the patient suffered an anoxic event, and plaintiff's expert cardiologist provides evidence linking the two (see Malebranche v Sunnyview Rehab Hosp., 46 AD3d 959, 961-962 [3d Dept 2007]). Plaintiff has shown that the failure of Dr. Mitchell (among other physicians) to timely diagnose the patient's pulmonary embolism by ordering a V/Q scan and to resume the administration of the drug Heparin constituted departures from accepted medical and cardiological practice, which caused her injuries.
The parties strenuously disagree as to whether (1) Dr. Mitchell should have re-started Heparin on October 5th, and (2) the patient's symptoms (including her new symptom of dizziness on standing which appeared on October 5th) were consistent with PE only, with mitral stenosis/pulmonary hypertension only, or with both. Furthermore, there are triable issues of fact on the issue of causation. As the motion papers essentially present a credibility battle between the parties' experts, the issues of credibility are properly left to a jury for its resolution (see Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624 [2d Dept 2003]). Accordingly, Dr. Mitchell's cross motion for summary judgment is denied (see Shields v Baktidy, 11 AD3d 671, 672 [2d Dept 2004]).
Dr. Kwan's Cross Motion for Summary Judgment
Dr. Kwan, an attending interventional cardiologist at Downstate Hospital at all [*27]relevant times, cross-moves for summary judgment dismissing the complaint insofar as asserted against him. In support of his cross motion, Dr. Kwan submits the affirmation of a cardiologist, George Brief, M.D.[FN39] After review of the hospital records, deposition transcripts, and bills of particulars, Dr. Brief opines with a reasonable degree of medical certainty that Dr. Kwan acted at all times in accordance with good and accepted medical practice in regard to the patient and that nothing in Dr. Kwan's treatment contributed to the patient's alleged injury. Dr. Brief's 13-paragraph affirmation consists of 12 paragraphs describing the events preceding and following the valvuloplasty, while his opinion proper is set forth in 1 paragraph, as follows: "DR. KWAN's role in this case is limited to [one of] the interventionalist. DR. KWAN's actions were in accordance with good and accepted medical practice. The patient was a proper candidate for the performance of a valvuloplasty. The patient was in sinus [normal] rhythm. A transesophageal echocardiogram was negative for clots and demonstrated the condition of her mitral valve to be treatable. The post procedure assessment showed a successful outcome and no procedural related complications" (¶ 13).
Two factual inaccuracies in Dr. Brief's opinion are easily noticeable. First, although a transesophageal echocardiogram (TEE) was negative for clots, that TEE was performed in the morning of October 2nd while the valvuloplasty was performed in the late afternoon of October 5th and no TEE was performed immediately prior to the valvuloplasty, even though Heparin had been discontinued in the interim. Second, Dr. Brief's unsupported statement that the valvuloplasty was a "success" and entailed no procedural complications is contradicted by the fact that the patient suffered a cardiac arrest 14 hours after the procedure.[FN40]
Dr. Kwan has not satisfied his initial burden of establishing the absence of any departure from good and accepted medical practice or that the patient was not injured as a result of his treatment. In this regard, Dr. Kwan's expert, Dr. Brief, merely opines, in conclusory fashion and without explanation, that a valvuloplasty was indicated, that it was appropriate and within the "standard of care" to perform it, and that it was done properly. Stated otherwise, but for asserting that Dr. Kwan performed the valvuloplasty properly, Dr. Brief fails to explain why Dr. Kwan's failure to delay a valvuloplasty was appropriate and why a V/Q scan and resumption of Heparin was not then medically indicated.
"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 . . . Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Here, Dr. Kwan has failed to make a prima facie showing that he did not depart from accepted medical practice or that his actions did not contribute to the patient's injury. Based upon the foregoing, Dr. Kwan's motion for summary judgment is denied. [*28]
In any event, plaintiff has made a prima facie showing, through an affirmation of his expert, Dr. Charash, that Dr. Kwan departed from the good and accepted medical practice and that such departure proximately caused the patient's injury. Dr. Charash describes Dr. Kwan as a member of the team that determined the patient's care. Dr. Kwan testified (at page 37 of his deposition) that he had been contacted about the patient before she was transferred to Downstate Hospital because the physicians at Kings County Hospital wanted him to perform a valvuloplasty on her. The next time he was contacted was after the patient delivered her baby (October 1st), as he testified that there was "continued communication between me and the [CCU] team, and the whole team regarding this patient" (at pages 39-40 of his deposition).
In addition, Dr. Charash cites to Dr. Milani's testimony (at page 189 of her deposition) that Dr. Kwan had been involved in discussions as to whether PE was likely. Dr. Kwan testified (at pages 64 to 66 of his deposition) that PE was a relative contraindication for a valvuloplasty. Dr. Kwan further testified (at page 109 of his deposition) that he and his medical fellow would review the chart prior to performing the valvuloplasty. He testified (at pages 132 and 135-37) that he needed to know the patient's history prior to performing a valvuloplasty and would find it out, and that he would go through the medications. Therefore, Dr. Charash concludes, that Dr. Kwan knew of the patient's risk factors for PE, knew that she had exhibited multiple signs and symptoms consistent with PE, knew that PE was suspected and that she was placed on Heparin for PE, knew that no tests had been ordered to rule out PE, and knew that Heparin had been discontinued without first obtaining any test results to rule out PE. Dr. Kwan further testified (at pages 53-54 of his deposition) that the patient had to be off Heparin for 8-10 hours before a valvuloplasty. He also testified (at page 129 of his deposition) that he had ordered V/Q scans for patients prior to that time. Under these circumstances, Dr. Charash points out, good and accepted medical practice required Dr. Kwan to decline to perform the valvuloplasty on October 5th and to recommend that Heparin be reinstituted and the patient properly anticoagulated until test results were obtained to rule out PE. He failed to do that. Instead, Dr. Kwan decided to perform the valvuloplasty that day, even though it had been planned for two days later. According to Dr. Charash, Dr. Kwan's decision to do so and his failure to recommend that Heparin be restarted and that a V/Q scan be obtained to rule out PE was a departure from good and accepted medical practice.
Dr. Charash further faults Dr. Kwan, among other defendants, for rushing into a valvuloplasty on October 5th when the patient's condition did not warrant it at that time. Rather, since PE was a life-threatening condition and since the patient was at high risk for PE, had exhibited signs and symptoms of PE, was suspected of having PE, and had at one point been treated for PE, Dr. Kwan, along with other physicians, should have opted for a V/Q scan which was significantly less invasive and posed significantly less risks than a valvuloplasty. If the patient was well enough to tolerate a valvuloplasty, Dr. Charash reasons, she was certainly well enough to have a V/Q scan. According to Dr. Charash, it was a departure from the standards of good and accepted medical practice for Dr. Kwan to proceed with the valvuloplasty on October 5th, rather than order that Heparin be restarted and order a V/Q scan to rule out PE, and that such departure was a substantial contributing factor to the patient's injuries. Dr. Charash believes that a V/Q scan would, with reasonable certainty, have demonstrated that the patient had PE and that diagnosis would have led to the continued administration of Heparin until the danger of PE abated. If that had happened, Dr. Charash concludes, the anoxic event of October 6th that caused the patient's brain damage and ultimately led to her death would have been avoided.
It is further Dr. Charash's opinion that once Dr. Kwan decided to proceed with the valvuloplasty on October 5th, he departed from the standards of good and accepted medical practice [*29]by failing to order that Heparin be restarted as soon as the valvuloplasty was completed. Dr. Charash points to Dr. Kwan's testimony (at pages 59-60 of his deposition) that if there was no bleeding after a valvuloplasty, Heparin could be restarted. Furthermore, Dr. Kwan's orders that the patient be put on eight hours of bed rest and that ten-pound sandbags be applied to her groin significantly increased the risk of clots forming and of breaking off and becoming pulmonary emboli, according to Dr. Charash, and thus made administration of Heparin even more imperative. Dr. Charash asserts that Dr. Kwan was qualified and capable of ordering Heparin, and he was required to do so since he was aware of the patient's prior history giving rise to a suspicion of PE and since he was the one ordering the bed rest and the sandbags. Dr. Charash opines with a reasonable degree of medical certainty that had Heparin been re-started at appropriate levels on the evening of October 5th, the chances of new clots forming or clots breaking off and becoming pulmonary emboli would have been greatly minimized or prevented throughout the night of October 5th and the morning of October 6th. Therefore, Dr. Charash asserts, the failure by Dr. Kwan to order that Heparin be restarted after the valvuloplasty was a substantial contributing factor to PE that the patient suffered on the morning of October 6th, to the anoxic event that day.
The court finds that the assertions contained in the affirmation of plaintiff's medical expert, Dr. Charash, are supported by specific references in the medical record, contain sufficient factual basis, and are, therefore, legally sufficient to rebut any showing of a lack of negligence and causation on the part of Dr. Kwan. Therefore, Dr. Kwan's cross motion for summary judgment dismissing plaintiff's complaint as against him is denied (see Alvarez, 68 NY2d at 324-325).
Drs. Gaba, Chiu, and Connell's Joint Cross Motion for Summary Judgment
Drs. Gaba and Chiu, the cardiology fellows at Downstate Hospital at all relevant times, and Dr. Connell, an obstetrical resident at Downstate Hospital at all relevant times, jointly cross-move for summary judgment dismissing the complaint insofar as asserted against them.[FN41] These physicians assert that because Drs. Gaba and Chiu were the cardiology fellows acting under the supervision of the attending physicians, such as Drs. Milani and Mitchell, they cannot be held liable to plaintiff for medical malpractice as a matter of law. The same argument is advanced with respect to Dr. Connell, an obstetrical resident, who allegedly worked under the supervision and direction of an obstetrical attending, Dr. McCalla.
As stated, the crux of plaintiff's medical malpractice claim is the defendant physicians' failure to timely order a V/Q scan to rule out PE and to timely order/restart Heparin. The undisputed testimony of the attending physicians makes clear that fellows and residents, such as Drs. Gaba, Chiu, and Connell, lacked the authority to issue the necessary orders. Dr. Milani, an attending cardiologist, testified (at pages 287-288 of her deposition) that a resident or fellow could, and routinely did, order or discontinue Heparin without first consulting her or another attending physician, although in cases where, as here, the management of a patient was questionable, they were encouraged to discuss their decision with an attending physician. However, once Dr. Milani ordered that Heparin be discontinued, a resident or fellow could not unilaterally reinstate Heparin (at page 286 of her deposition). Additionally, according to Dr. Milani, a resident or fellow would most likely have to consult with an attending physician first before ordering a V/Q scan (at pages [*30]288-289 of her deposition).
Dr. McCalla, an attending obstetrician, testified (at page 34 of his deposition) that residents in obstetrics were under the supervision of one of the attending physicians in the department of obstetrics and gynecology. He further testified (at page 41 of his deposition) that he could modify his resident's treatment plan if he felt it was so indicated. Dr. McCalla also testified (at page 39 of his deposition) that all residents' notes had to be co-signed by their attending physicians for chart completion.
The respective testimony of Drs. Gaba and Chiu (Dr. Connell not having being deposed) is consistent with the testimony of the attending physicians. Dr. Gaba testified (at page 62 of his deposition) that while he could examine a patient outside the presence of an attending physician, he could make no decisions and had to submit his findings to the attending physician. He further testified (at page 83 of his deposition) that he could make only "very simple" decisions without going to the attending physician, that he was required to present his assessment and plan of treatment to the attending physician for approval, and that he could not order a V/Q scan without the attending physician's permission.
Dr. Chiu testified (at page 27 of his deposition) that his typical practice was to evaluate a patient and present the patient to the attending physician, giving the latter the patient's history, the complaints, his physical exam findings, his assessment and plan, whereupon the attending physician would discuss the case with him and he and the attending physician would come up with the final assessment and plan.
The law is well established that a fellow or a resident who assists a doctor during treatment and who does not exercise any independent medical judgment cannot be held liable for malpractice "so long as the doctor's directions did not so greatly deviate from normal practice that the [fellow or] resident should be held liable for failing to intervene" (Muniz v Katlowitz, 49 AD3d 511, 513 [2d Dept 2008], quoting Soto v Andaz, 8 AD3d 470, 471 [2d Dept 2004] [emphasis added]; see also Filippone v St. Vincent's Hosp. & Med. Ctr., 253 AD2d 616, 619 [1st Dept 1998]; Cardamone v Ricotta, 17 Misc 3d 1114 A, 2007 WL 2994313, *5, 2007 NY Slip Op 51963 [U] [Sup Ct, Nassau County 2007]). Independent acts by residents, including the failure to summon appropriate assistance when warranted, may also constitute negligence giving rise to the resident's individual liability (see Pearce v Klein, 293 AD2d 593, 594 [2nd Dept 2002]).
While these defendants have submitted ample evidence that they acted under a direct supervision of their respective attending physicians, they have not demonstrated to the court that such attending physicians did not so greatly deviate from normal practice that they should not be held liable for failure to intervene. Dr. Chen's affirmation does not address whether or not the attending physicians so greatly deviated from normal practice that their subordinate physicians (fellows and residents) should have intervened.
In his affirmation, Dr. Chen states that the cardiology fellows, Dr. Chiu and Gaba, did not depart from the good and accepted standards of medical care because they merely examined the patient and were not involved with the discontinuation of Heparin and did not perform a valvuloplasty on the patient (¶¶ 11-12, 14).[FN42] Dr. Chen's affirmation is devoid of any substantive [*31]discussion whatsoever concerning Dr. Connell's involvement in the care of the patient, despite the fact that the medical records demonstrate that she had extensive involvement in the patient's treatment.
Dr. Chen does not address plaintiff's allegations in his bill of particulars that Drs. Chiu, Gaba, and Connell should have diagnosed or considered pulmonary embolism in the patient, that they should have recommended a V/Q scan to rule out pulmonary embolism, and that they should have recommended prophylactic treatment in the form of Heparin. Dr. Chen's affirmation fails to refute any of these allegations, rendering it patently insufficient to meet their burden in establishing prima facie that they are entitled to summary judgment. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Terranova v Finklea, 45 AD3d 572, 573 [2d Dept 2007]; Kuri v Bhattacharya, 44 AD3d 718 [2d Dept 2007]). Furthermore, the defendant physicians' bare allegations which do not refute the specific factual allegations of medical malpractice in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law (see Grant v Hudson Valley Hosp. Ctr., 55 AD3d 874 [2d Dept 2008]). Accordingly, the cross motion of defendants Drs. Chiu, Gaba, and Connell for summary judgment is also denied.
Dr. Mitchell's Motion for an Open Commission
Dr. Mitchell alleges that non-party Dr. Arshad Mahmood Safi (Safi) provided health care to plaintiff's decedent and participated in her health care decision-making during the period of treatment at issue. According to Dr. Mitchell, Dr. Safi resides in Chambersburg, Franklin County, Pennsylvania, and is not subject to service of process in New York State. Dr. Mitchell requests an open commission to take a deposition of Dr. Safi in the county and state in which he resides.
CPLR 3101 (a) requires "full disclosure of all evidence material and necessary in the . . . defense of an action . . ." Service of a subpoena outside the State of New York is ineffective to compel a witness to appear for examination before trial (see Wiseman v American Motors, 103 AD2d 230, 235 [2d Dept 1984]). Therefore, CPLR 3108 makes available, upon application to the court, the commission as a device to secure disclosure (id.).
Dr. Mitchell asserts that at the time at issue Dr. Safi was a fellow studying interventional cardiology at Downstate Hospital and that as part of his studies in that specialty he treated the patient prior to and in the course of the valvuloplasty which was performed on her on October 5th. Within 14 hours of that procedure, the patient went into a cardio-pulmonary arrest from which she did not recover consciousness. According to Dr. Mitchell, Dr. Safi saw and examined the patient outside the presence of his training physician, Dr. Kwan. Dr. Mitchell believes that "Dr. Safi's treatment . . . has a nexus to the alleged malpractice" and that his "testimony is sufficiently related to the issues of this litigation to make this good faith effort to obtain it prior to trial as it may be useful to the parties" (¶ 7).
Plaintiff responds to Dr. Mitchell's motion with a statement that he does not oppose her motion. No other party has filed any responsive papers.
In view of the fact that Dr. Safi's testimony may be important to the issue of malpractice and that oral interrogation is an effective method for eliciting information before trial, Dr. Mitchell is permitted to depose the witness located in Pennsylvania upon an open commission (use of oral questions) to a person before whom deposition may be taken in accordance with CPLR 3113 (a) (2) (see Stanzione v Consumer Builders, Inc., 149 AD2d 682, 683 [2d Dept 1989]). Accordingly, [*32]Dr. Mitchell's motion for an open commission to depose Dr. Safi is granted without opposition.
Conclusion
In sum, the court rules as follows:
1) That branch of Dr. McCalla's motion for summary judgment seeking the dismissal of the informed consent cause of action against him is granted, and his motion is otherwise denied;
2) The cross motion for summary judgment of Dr. Mitchell is denied;
3) The cross motion for summary judgment of Dr. Kwan is denied;
4) The joint cross motion for summary judgment of Drs. Gaba, Connell, and Chiu is denied; and
5) The motion of Dr. Mitchell for an open commission is granted without opposition.
The foregoing constitutes the decision and order of the court.
E N T E R,
/s/
J. S. C.
Hon. Randolph Jackson
Supreme Court, Kings County
Civil Term - Part 11
April 20, 2009
Footnotes
Footnote 1: The fourth co-movant, Dr. George Chacko, was dismissed from this action without opposition from plaintiff by short-form order dated January 28, 2009. In addition, Dr. Louis Salciccioli was dismissed from this action by another short-form order of the same date.
Footnote 2: Pulmonary embolism is "[t]he obstruction of an artery in a lung by an embolus or blood clot . . ." (5 Schmidt's Attorneys' Dictionary of Medicine, at P-529).
Footnote 3: All subsequent references to dates are to the year 1998, unless otherwise indicated.
Footnote 4: Tachycardia (an above-normal heart rate of 100 or more beats per minute) does not increase the risk of pulmonary embolism, as Dr. Gaba, a cardiology fellow, testified (at pages 161-162 of his deposition). In contrast, Dr. Chiu, another cardiology fellow, testified (at pages 30-31 of his deposition) that the principal symptoms of pulmonary embolism are tachycardia and shortness of breath, both of which the patient experienced.
Footnote 5: "Relating to spaces within a tissue or organ, but excluding such spaces as body cavities or potential space," Stedman's Medical Dictionary, 28th ed (Stedman's), at 991.
Footnote 6: "A cellular infiltration . . . in the lung as inferred from appearance of a localized, ill-defined opacity on a chest radiograph; commonly used to describe a shadow on a radiograph," Stedman's, at 970.
Footnote 7: "[T]he physical sign commonly likened to swelling or increased girth that often accompanies the accumulation of fluid in a body part, most often a limb," Stedman's, at 612. A pitting edema "retains for a time the indentation produced by pressure," Stedman's, at 613.Dr. Mitchell testified (at page 129 of her deposition) that a pitting edema is ranked from "0" zero (no edema) to "4" (severe edema).
Footnote 8: Dr. Mitchell summarized (at page 423 of her deposition) the patient's heart murmurs, as follows:
"She had several murmurs. She had a murmur that was consistent with mitral stenosis [narrowing], so she had an opening snap. That's when the mitral valve opens. She had a systolic murmur that was consistent with the mitral regurgitation and the tricuspid regurgitation that she had. She had diastolic murmurs that were consistent with the aorta insufficiency that she had and with the sound of blood going through the mitral valve."
Footnote 9: "Decrease below normal levels of oxygen in inspired gases, arterial blood, or tissue, without reaching anoxia," which is defined as the "[a]bsence or almost complete absence of oxygen from inspired gases, arterial blood, or tissues," Stedman's, at 939, 98.
Footnote 10: Drs. Mitchell and Salciccioli testified (at pages 81 and 43 of their depositions, respectively) that a normal mitral valve opening is 4-6 cm. sq. in circumference. Dr. Mitchell defined (at page 265 of her deposition) an opening of 1.5 cm. sq. as a moderate to severe mitral stenosis, while Dr. Salciccioli defined an opening of 1.0-1.5 cm. sq. as being a moderate stenosis. Drs. Salciccioli and Chiu, a cardiology fellow, defined (at pages 44 and 130 of their deposition, respectively) an opening of less than 1.0 cm. sq. as a critical or severe mitral stenosis.
Footnote 11: Dr. Chiu testified (at page 31 of his deposition) that the normal respiration rate is 12 to 16 times per minute.
Footnote 12: Dr. Mitchell testified (at page 72 of her deposition) that "[p]ulmonary hypertension is an increase of the pressure in the pulmonary vascular tree." She further testified (at page 74 of her deposition) that pulmonary hypertension increased the risk of thrombosis.
Footnote 13: Dr. Chiu explained (at pages 54-55 of his deposition) that the purpose of a Swan-Ganz catheter was to measure the patient's cardiac output and to obtain readings of her blood pressure in the pulmonary artery so as to be able to determine if she had pulmonary hypertension.
Footnote 14: Dr. Chiu testified (at page 55 of his deposition) that the patient's pulmonary pressure was very high, as the normal pulmonary pressure was 30 (systolic) and 8-12 (diastolic). Dr. Mitchell was less precise in her testimony when she stated (at page 72 of her deposition) that a normal pulmonary pressure was about 20 or so.
Footnote 15: "An added sound . . . heard on auscultation [i.e., listening to the sounds] of the chest and caused by air passing through bronchi that are narrowed by inflammation, spasm of smooth muscle, or presence of mucus [i.e., (t)he clear viscid (i.e., sticky[,] glutinous) secretion of the mucous membranes] . . .," Stedman's, at 1693, 183, 1235, 2136.
Footnote 16: Dr. Chiu testified (at page 85 of his deposition) that hypotension could be caused by pulmonary embolism which decreases cardiac output.
Footnote 17: At 6:50 a.m., the post-partum recovery chart and labor progress chart indicated that the patient's blood pressure was only 90/60.
Footnote 18: "[H]eparin is used to prevent further clot formation, or to prevent a clot from forming in the first place. What heparin does not do is dissolve pre-existing clots" (Gerace v United States, 2006 WL 2376696, *2 [ND NY 2006]).
Footnote 19: "A single, relatively large quantity of a substance, usually one intended for therapeutic use . . .," Stedman's, at 239.
Footnote 20: A "ventilation/perfusion scan" is defined as "[v]entilation and perfusion scans of the lungs that are performed simultaneously. A radioactive gas is inhaled for the ventilation scan, with its distribution throughout the lungs recorded on film. A radioactive dye is injected into a vein for the perfusion scan and its distribution in the pulmonary vasculature [is] recorded" (6 Schmidt's Attorneys' Dictionary of Medicine, Dec. 2005 Supp., at 8-9).
Footnote 21: Although the operator's name was not stated in the chart, the performing physician was likely to have been Dr. Mitchell.
Footnote 22: According to Dr. Chiu (at page 111 of his deposition), "during the transesophageal echocardiogram you look for clots in the left atrium. If there are clots in the left atrium, then it might be a contraindication to the procedure . . . [b]ecause you can dislodge the clots and cause a stroke." Dr. Kwan testified to the same effect (at pages 157-158 of his deposition).
Footnote 23: According to Dr. Gaba (at page 164 of his deposition), an "off-service" note means that the physician who wrote it had finished his or her rotation in the CCU that day.
Footnote 24: A "differential" or a "differential diagnosis" "means that doctors list different possible causes for a particular condition and then try to eliminate one cause after another until the list is narrowed down as much as possible. The length of the list varies by individual patient and the circumstances of the case" (Buxton v Lil' Drug Store Prods., Inc., 2007 WL 2254492, *1, n.5 [SD Miss 2007], affd 294 Fed Appx 92 [5th Cir 2008]).
Footnote 25: Dr. Mitchell testified (at page 72 of her deposition) that a mitral valve opening of 2.5 cm. sq. in circumference is adequate for the usual activities of daily living without experiencing shortness of breath.
Footnote 26: "One or a series of shocklike contractions of a group of muscles, of variable regularity, synchrony, and symmetry . . .," Stedman's, at 1272.
Footnote 27: "Ventilation/perfusion mismatching" is "[t]he condition in which the inspired (breathed-in) air and the blood flow in the lung are not in a proper proportion" (6 Schmidt's Attorneys' Dictionary of Medicine, at V-72.1 [2007]).
Footnote 28: "Any disorder of the brain," Stedman's, at 636.
Footnote 29: Tegretol (carbamazepine) is a "medicine used in the treatment of epileptic seizures . . ." (5 Schmidt's Attorneys' Dictionary of Medicine, at T-34).
Footnote 30: Since these parties are seeking relief here against plaintiff, a non-moving party, their applications must be properly designated as motions, not cross motions (see Fuller v Westchester County Health Care Corp., 32 AD3d 896, 896-897 [2d Dept 2006] ["motion, which did not seek relief against any moving party, was not a cross motion"] [internal citations omitted]). Case law excusing such technical defect where no prejudice exists and the opposing party had ample opportunity to address the merits (see Sheehan v Marshall, 9 AD3d 403, 404 [2d Dept 2004]) fails to apply in this case where the subject parties untimely presented their summary judgment motions.
Footnote 31: Dr. Skupski is a New York licensed physician with a specialty in obstetrics/gynecology.
Footnote 32: Dr. Skupski also argues that it was proper for Dr. McCalla not to use tocolytics (drugs used to delay labor) to try to stop her labor, as tocolytics would have had negative cardiac effects on the patient, in that they would have exacerbated her congestive heart failure and pulmonary edema. According to Dr. Skupski, there is nothing that Dr. McCalla could have done to safely stop her labor and prevent the premature birth. However, Dr. Skupski's point concerning tocolytics is a red herring. There is no dispute that the patient's early labor and delivery significantly lightened the patient's cardiac load. Likewise, Dr. Skupski's point that vaginal delivery was appropriate, as the C-section would have placed too much of a stress on the patient's system, is undisputed and plaintiff makes no claim that a delivery via a C-section was necessary.
Footnote 33: Dr. Nathanson is a board certified obstetrician/gynecologist licensed as a physician in the State of New York.
Footnote 34: The court rejects Dr. Nathanson's argument that, as an alternative to a V/Q scan, Dr. McCalla should have ordered a spiral CT scan. There is no evidence that a spiral CT scan was available at Downstate Hospital in 1998. Dr. Salciccioli, an attending cardiologist at Downstate Hospital at all relevant times, testified (at pages 15-16 of his deposition) that a spiral CT scan was not available at Downstate Hospital in 1998. In response, plaintiff furnished the court with two published medical articles indicating that a spiral CT scan was available in Netherlands as early as 1992. The articles are irrelevant. Plaintiff has not shown that a spiral CT scan was available at Downstate Hospital in 1998. In the remainder of this decision, therefore, the court limits to a V/Q scan its discussion of the available PE tests. It is undisputed that a V/Q scan was available at Downstate Hospital in 1998 and, in fact, the patient underwent a V/Q scan in that hospital two days after her cardiac arrest.
Footnote 35: As stated by one court:
"Pulmonary embolisms are a common danger for women after childbirth, because their bodies manufacture extra coagulants to handle bleeding associated with birth. Clots often form in the lower legs, and can break off and travel through the bloodstream to the pulmonary area" (Arkin v Gittleson, 32 F3d 658, 661 [2d Cir 1994]).
Footnote 36: Dr. Katz is a New York licensed physician with a specialty in internal medicine with a sub-specialty in cardiology.
Footnote 37: Dr. Charash is a board certified cardiologist licensed as a physician in the State of New York.
Footnote 38: Contrary to Dr. Mitchell's contention, the court has the discretion to consider the affirmation of the plaintiff's expert solely for purposes of summary judgment, despite his alleged failure to comply with CPLR 3101 (d) (1) (see Howard v Kennedy, 2009 WL 791472, *1 [2d Dept 2009]). Furthermore, plaintiff has disclosed the full name of his experts, thereby resolving that portion of Dr. Mitchell's objection which requested a full disclosure of the experts' qualifications in reasonable detail.
Footnote 39: Dr. Brief states that he is a New York State-licensed physician specializing in cardiology. He does not state, however, whether he is an interventional cardiologist like Dr. Kwan.
Footnote 40: Dr. Brief incorrectly states that the patient suffered a cardiac arrest "approximately 20 hours" after the procedure was completed. According to the hospital chart, the procedure was completed at 4:30 p.m. on October 5th and the "code" was called in at 6:30 a.m. on October 6th.
Footnote 41: Plaintiff was not required to commence a separate action against these physicians in the Court of Claims (see Morell v Balasubramanian, 70 NY2d 297, 301-302 [1987] [where state employees were real parties in interest, it was not necessary to bring a tort action in the Court of Claims]).
Footnote 42: The affirmation of their expert, Dr. Jonathan M. Chen, is admissible notwithstanding his specialization in the field of the congenital cardiothoractic surgery, as "[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. Rather, any alleged lack of knowledge in a particular area of expertise is a factor to be weighed by the trier of fact that goes to the weight of the testimony, not its admissibility" (Bodensiek v Schwartz, 292 AD2d 411, 411 [2d Dept 2002] [internal citations omitted]).
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
