Dileo v Central Suffolk Hosp.

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Dileo v Central Suffolk Hosp. 2012 NY Slip Op 30414(U) February 17, 2012 Supreme Court, Suffolk County Docket Number: 20460/2008 Judge: William B. Rebolini Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Maria Dlleo, as mother and natural guardian of Raymond George Laibhcn, an infant, Motion Sequence No.: 002; MD Motion Date: 9/1111 Submitted: 12/23111 Plaintiffs, Index No.: 20460/2008 -againstAttomev for Plaintiff: Central Suffolk Hospltal, now known as Peconic Bay MedICal Center, l~obert Steckler, M.D. and Urological Associates of L.l., P.c., Sawyer, Halpern & Dcmetri 666 Old Country Road, SUIte 701 Garden City, New York 11530 Defendants. Attorney for Defendant Central Suffolk Hospital: Clerk of the Court Furey, Kerley, Walsh, Matera & Cinquemam, P.c. 2174 Jackson Avenue Seaford, New York 11783 for Defendants Robert Steckler M.D. and UroloQ:ical ASSOCiatesof L.I.: AttOlllCV Charles E. Kutner, LLP 110 East Fifty-Ninth Street New York, New York 10022-1304 Upon the following papers numbered I to 30 read upon this motion for summary Judgment: Notice of Motion and supporting papers (002), 1 - 20~Answeling Affidavits and supporting papers, 21 - 24~ Replymg Affidavlts and supporting papers, 2.5 - 30. [* 2] Dileo \'. Central Suffolk. et al. Index No.: 20460/2008 Page 2 The cUll1pJainl' sets rorLh causes lll" ,lction for medical malpractice and wui; commenced hy Maria DI Le.o as muther and natural guardian or the Infant plainli Il, Raymond George L~llbhen. On January:1, 1999. the Infant plainLlll. who was then five years or age. was a putlenl al Peconic Hay Medical Center. fonnerly known as Central Suffolk HospItal. and had been treated in the emergency department. It IS a!kged that the infant plaintiff suffered the loss of a testicle due to the negligence of lhe defendants in failing 10 timely diagnose and perform necessary testing: III fai Illlg to properly lllterprct diagnostic testmg and to treat the infant plaintiff's torsion of his testicle: in failing 10 timely obtam a consultation: m failing to perfOim manual detorsion of lhe teslicle and in failing 10 ti mely perform surgery for torsion of the testicle. The defendant hospital seeks summary judgment dismissing the complaint as asserted against Itllll the bases that It cannot be found directly liable to the plaintiffs for medical malpractice: that Its employees dKI not depart from good and acceptcd standards of medical carc and treatment and that there was no proxim,llc cuuse between the Care and treatmenll-endered by them and the mjuries suffered by the infant plallltiiT. Thc proponent of a summary judgment motion must muke u IH'imo facie showing of entitlemcnt to judgment as a maller of law, tendering sufficient evidence to eliminate any material Issues of faci from the case. To grant summary judgment it must clearly uppear that no malenal and tnable issue of fact is presented (sec. Friends of Animals v. Associated Fur Mfrs.,46 NY1d 1065 {19791: Sillman v. Twentieth Century-Fox Film Com., 3 NY2d 395 [1957]). The movant has the initial burden of proving entitlement to summary Judgment (see, Wine!!rad v. N.Y.U. Medic<.ll Center, 64 NY1d 851 [1985J: Alvarez Y. Prospect J [ospital, 68 NY2d 320! [986]). failure to make such a showi ng requires denial of tile motion, regardless of the su[Ticiency of the opposing papers (sec. Wmc!:!rad v. N. Y.U. Medlen! Center, 64 NY1d 85 I [1985]). Once sllch proof has been offered. the hurden then shifts In the opposing party, who, In order tn defeat the motion for summary .Judgment. Il1USIproffer evidence in admissible f"orm... and must "show facts sufficient to requlrc <l tn'll of any issue of fact" (see, CPLR §l1J~lbl: Zuckerman v. Citv of New Yor", 49 NY~d 557 119801). ·rhe opposIng PUrly must assemble, lay bare and reveal his proof in order to cstahllsh thaI lhe malters set forth III his pleadings arc real and capable of beIng cstahhshed (sec. Castro v. Liberty Bus Co., 79 AD2d 1014[2"" Dcpt., 19811). The reqlllsitc clements of proof 111 a medlca[ malpractice action arc (I) a deVIation or c1epartlln:: frnm acccpted pnll.:ticc. and (1) evidence that such t1epUrlllrC was a prox.imate cause of injury or damage (sec. Holton v. Sprain Brook Manor Nursing Home, 2:)3 AD2<.l 85~ l2'oJ Dcp!.. 199R I. (//11)d('lIied 92 NY2d 8 [8 119991). To prove a prima .llKie case of medical malpractice. a p!ai nti ITmust cSlablish that dcl'endant· s negllgcnce was a suhstantial f~lclor In prodUCing the alleged Injury (sce.l)crdianan v. relix Cllntraclln'-'.Cllrp .. 5 I NY1d 30811980.1: Prete v. Rai"Ja-Demctrious, 224AD2d ()74 12",1 Dept.. 19l)(i]). Except as lu maHers within the ordinary experience <ll1d "nowlcdge nf laymen. cxpcrt medical upilllol1 IS necessary 10 prove a deviation or dep,Jrlure from accepted standards of medICal care and that such depal111re \Vas ,1 pmXI male cause of tile plainti ff s lllJury (sec. Fiore v. Galan!!, 64 NY1d 999119851: Lvons v. McCaule\'. 251 AD1d 51612,,<1Dept.... [* 3] Dileo \'. Central Suffolk. et al. Index No.: 20~60/2008 Page 3 19981, ({Iljl 199411· d(,l1/e'd 9~ NY1d S 14 [19981: Bloom v. CllV of New York. 102 AD2c.l465 [-1'''1Dept., To rehut a Ininl(l facie shawl ng of entitlement to an oreler granting summary .Judgment hy defendants. plaintiff must demonstrate the existence of a triable issue of fact by submItting an expert's affidavit of melit attesting to a deviation or departure from accepted practice and containing an opinion that the defendants' acts or omissions were a compctellt-produclIlg cause of the injuries of the plallltifr(sec, Llfshnz v. Beth Israel Med. Ctf.-KinQ.s HiQ.hwav Div., 7 AD3d 75912'od Dept.. 2004]; Domaradzki v. Glen Cove OB/GYN Assocs., 242 AD2d 282 [2"" Dept., 1997]). As sel forth In Feinber!! v. Feit. 23 AD3d 517, 519 (2,,<1 Dept .. 2005), "[s]ummary Judgment is not appropriate in a medical malpractice action where the panies adduce conr!icting medical expen opinions (citations omined). Such credibility Issues can only be resol ved by a jury'" In support of this motIOn, the defendant hospital has submitted, il/II'I" ali(l, an attorney's ulTirmalion; summons and complaint and an::;wcrs served by defendant hospilal and Its various discovery demands. plainliff's verified bill of particulars; an unsigned but certiried copy of the truIlscripl of the exammation before trial of Raymond George I,aibhen dated October ::!2, 2008. ,I copy of the ullsigned and uncertiried copy of the transcript of Maria DiLeo dated October 22, 2008. the unsigned but certified copies of the transcripts of the examinations before tlial of RobcI1 Steckler. M.D. dated November 19,2008, Afzal Butt daled December 17, 2008, Kimocrlee Hanson dated Aplil 20. 2010 and Ranjana Mathur, M.D. dated November 1. 2010: the signed and cer[iried copies of the transcnpts oflhe examinations before trial of i"awrcnce A. Rubin, P.A. datcd May 11, 2009 and Paula J. Bamey dated March 5, 20 I0: unccnified copies orthe infant plaintiffs emergency department record from January 3.1999 and thc cxpen affidavit of Mark S. Silberman, M_D_ The unSigned and unccrLlfied transcripts urthe examinations belorc trial or the infanl plainti IT alld M:lria DiLco are not accompanied by affidavits pursuant to CPLR *.1116 and arc, thcldorc, Inadmlssihle and not: considered in this 1l10liOil(see, Marline;; v. 121-16 Libcrty A vc. Really Corp .. 47 AD3d 901 12"J Depl., 2008]: McDonald v. Maus, .18 AD.1d 727 [2"<1 Dept., 2007J: Pina v. Flik IntI. Corn .. 2.') AD3d 772 ]2t1J Dcpt.. 2006J). The unSigned but certified copies of the transcnpt 01" the examination before tnal of Robert Sleckler. M.D. daled November 19.2008. AJ"zal Butt, M.D. dated December 17.1008, Louis T. Pastore, M.D. dated December 22.2009. Kimberlce Hanson dated April '2.0,20 I0 and Ranjana Mathur. M.D. dated Novcmber 3. 20 I0 are considered as adopted as accuralC hy thc mnvi ng defendants. arc not objected to by the pal1ics (sec. ZalOi v. Zieha, S I AD3d 9.15 [2,,<1 Dept.. 20 I 11) and are thus considered. The moving defendant's application IS nOi supponed hy a certified copy oj" the Infant plaIntiff" s emergency room and hospilal record considered hy the defcndant's moving expert III rendenng hiS opinion (sec. CPLR ~3112: Experltesilmony is limned to facts ill evidencc, Allen v. Uh. 81 ;\I).1d 102:') f2'ltl Dept., 1011]: M'lI"I.Llilln v. isnm, 277 /\0'2d V)1 [1,,,1Dcpt, 2(00); Strin2:ilc v. Rothman, 141 AD1cl637 [1"J Dept., 10881; O'Shea v. Sarro. 106 AD2d 4J5 12'1<1 Dept.. 1984.1). II is determlllcd that evcn if all of the nwving dcl'endant's submissIons were in :Idrmssihlc form. th;lllhcrc are factu:lllSSUCS which prcclude the grantIng of summary Judgmcnt 10 Pcconic Bay Medical Ccnter. [* 4] Dilco \'. Ccntral Suffolk. et a!. Index No.: 10-160/2008 Page -I Kimbcrlce Hanson testified to the extent that she has been a registered nurse since 1990. [n 1999, she was working at Central Suffolk Hospital emergency department and has no recollection of the in fallt pl~l1 ntifT She read her note entered into the infant· plaint11T's hospital record on January J. 1999 at 15:40,Just prior to the infant being taken to the operating room. Dr. Steckler was at thc beuside ~lIld the 111f:.lIlt :.Jppearcd to be 111 distress. Consents were obtmned for surgery and she no witnesscd the mother's signature. Lawrence Rubin, P.A. testified 10 the effect that he wus working as a physician's aSSiSlallt III the emergency department at Central Suffolk Hospital (now known as Peconic Bay Medic:.!1 Center) on January 3, 1999 and that he did not have an independent recollection of Raymond L.ubhen. He would have rcad the nurse's nOle and determined thatlhe mmher staled that the child's testicle had been swollen from about II :00 a.m., that he was walking with his legs spread, he was not crY11lgwhile in triage and that his testicles were swollen, reddened and had increased warmth. He examined the chi Ie!and found the scrotum to be erythematous and edematous. His diagnOSIs was testicular tor$ion. He ordered blood work and a sonogram. The sono technician on call was called at 12:45 P.I\. Rubin called Dr. Pastore at 12:55. At 13:42 he spoke with Dr. Pastore, and wrote 111 note "ohtalll 50no," Dr. Steckler will be called :me! cull back with sono results. Dr. Steckler his was called at 13:45. The infant was transported for the sonogram at 13:45. At 14:37. the 50no was completed. P.A. Rubin testified that he spoke with Dr. Miturotondo, the radiologist, at 14:40 and received a verbal report of the sonogram results. Dr. Steckler was in at 14:40 and wrote in his notc that the S0110 (ultrasound) was performed with Doppler, but it was suboptImal and was repeatcd under his observation. P.A. Rubin testified that he wrote the diagnOSIs of testicular torsion PI;OrlO the child going to the operating room. He stated that this is an emergent situation as detorsion is necessary to save the tcsticle from dYlIlg. The sooner detorsion takes place. Ihe quicker the obstructIon of hlood tlow will be relieved. He did not believe that Central Suffolk had an anesthesiologist present on the premises 24 hours a day. lIe Slated that when an on-call physician is called, usually they wait for ahout fifteen to twenty mlnutcs to call the physiCian back if the physlcl~ln did not respolld. Louis Paslore, M.D. testified to the extent that in January 1999. he was a principal and shareholder in UrologICal Assoclatcs and Ihat he was board cenified in urology. He had no Independent rccollection of Raymond Laibhen. He was on call for January 3, 1999 for the group and could he reached hy pager. It was his custom and practice to respond immediately 10 a page. He could not tell from the record why Dr. Steckler responded to the emergency room t:all rather than hun. hut statcd that If the patient was between the ugcs of zero and eightecn. thc call was :lulornaucally rcfelTed to Dr. Steckler. as per their custom and practice. Af;.:all3utL MD. testified to the eXlentthal he 1Slicensed 10 practice medil.:inc in Ncw Yurko Iowa, ,11ldNorth Cal'Olll1~l His liccnse in New York was suspcnded due to a ··misi"()r!unute incidcll [t1 InvolVing Mcdic:lid. Medicurc." He slatcd he 1::) oard certified 1n internal medicinc. h Hc was <In employee ,11 Ccntral Suffolk HOspltal III 1999. but IS no longer working thcre. He had IlO independent recollection or eanng for the lllfallt plallltiff in the cmergency department on JanuiJry 3. 1999 where he was employed as Ihe emergency room attending physlclan. As :lllending physicI:1I1. [* 5] lJileo \'. Central Suffolk. et .al. Index No.: 20~60/2008 Page 5 he supervised the physician's assistant as required. He noted that the physician's assistant Larry Rub] n, Indicated that the chi ld's condition was emergent or Iifc threatening, 1·le agreed that th1S W:\S an emergency. The diagnosis 01"torsion of the testi<,;le was made upon examinatiun of the child and pursuant to sonogram findings. Dr. Bull testified that he had no rnvolvement with the care of the chlld other tlwn couIltersigning the record. It was not his custom and pract1ce to examine a patient before countersigning the note of a physician's assIstant or 10 discuss what the r.A. had wntten. But he then testIfied lhat he examined the child, but did not write a note. He continued that once Dr. Steckler arri veu, Dr. Steckler took over the casco Jle did not know if there was an ancsthesiologist in the hospital at the time the child was detellllineu to require surgery. He fUl1her testifieu lhat the infant's fathcr hau torsion of the testicle twice. Dr. Butt testi fied that it \vas the custom and practice to wait fifteen minutes before calhng a physician a second time after having called concernmg a patient. Dr. Robert Steckler testified to the extent that he is currcntly licensed to practice medicine Pennsylvan1a, New Jersey and Florida, that he was licensed to practice medicinc in New York ill 1999, and that he IS boaru certified in urology. He was an employee of Urolog1eal ASSOCIates and had pnvileges at Central Suffolk Hospllallll January 1999. Prior to January 3, [999, he trc:lted chIldren with testIcular torsion. He had no recollection of the inFant plaintiff. Raymond l..alhhen. He staled that the hospital record does not indicate what lime hc was callcu, but il indicales the lime he- responued, which was 13:45 and that he saw the chi lu at 14:42. He did not recall if he had been told that the child nught have a testicular torsion, and stated that the record indicaled that diagnosis in the discharge diagnosis by the physician's assistant in rhe emergency department. Based upon the hospital record, Dr. Steckler testified that the child had an acute scrotum, characterized by a red. swollen, hard testicle, hut that lhe record did not indicate testicular lOrsion. lJ1 Dr. Steckler testIfied that upon his arrival to the emergency room, he took a hIstory and conducted a physical examinatlOIl \vhlch revealed that the lcrt ::;erotum Ivvasenlarged With an area of ecchymos1S superiorly, that it was approXimately three em and finn/haru and that he was unable to (listinguish the epididymis. The right scrolUm was normal. He staled that there is no blood work consistent WIth testicular torsion. The sonogram fi 1m/report. which he reVIewed. indicated th:ll there was inhomogeneous cchotcxturc consistent with hypoechoic areas whIch he stLlled was suggeslive of testicular torsion. He inuicaled that his note stated left testicular torsion with infarction most likely. although Henoch Scholein purpura (a vasculitic disorder that causes purpura). which he noted on the scn)!um, was possible. Dr. Steckler testi fied that the ultrasound performed with Doppler was "sub-optimal and repeated under my observation" as It uid not show what he nceued to sec. He felt an emcrgent exploration was necessary and noti fled the operating room at 15:20. He did not know If this was the first tlmc the hospital was notified of the need to use the operating room. He performed tile surgery. a IeI'! scrotal exploration and left orchiectomy, and right scrotal orchiopexy I'llI'left testicular lurslon v'/ith InfarctIon. The testicle was tor::;ed two and one-hall' times. Dr. Steckler also opined that 1t would not be the custom and practice to aLlcrnpt a detorsi@ prior to surgery if the patient was so uncomfortable that he uld not per1111tthat type or:1Jl exam. lIe added that time is of the essellce with testicular torsion, so that olle l111gh!proceed to the operating [* 6] Dileo v. Central Suffolk, Index No.: 20460/2H08 Page 6 t't al. reJoIn r~lthcr than delay by perfonning an ultrasound. He continued that the chIld was in the operating room wlth1l111ne half hour of his finishmg hIS note at 15:32 ane! anesthesia was commenced aL 16:::10. He stated that the salvageabIlIty of a testicle ISdetcrll1lned not just by the tIme, but also by how many rolations arc 1T1volved. He continued that the more rotatlOns there arc makes more complete the cessation or (artenal) blood flow and the qUicker there will be Infarction. He agreed that there IS greater than 8()f}(! success rate of saving the testicle d' surgical correction occurs wlth11l 6 hours of the onset of symptoms. He contlIlued that viabJiity IS assessed grossly and that a fro;;,en section is l10t necessary. Ranpna Mathur, M,D. testified to the extent that in 1997 she was dIrector of pathology at Central Suffolk Hospital. Her responsIbilities Included creating protocols I'or the pathology department. She described a frozen sectIon as being a test for rapid diagnOSIs whIch she stated IS a general term. In 1999, the test was avaJiable il' a surgeon requesLed It and/or wanted a report interpreted. She Issued a pathology report for tissue collected on January 3, 1999 from the infant plaintiff during surgery. During a pathology inspection of the tissue, she looked for infarctIon or microscopic death of the cells in the testes. She used the term "hemonhagle areas" I"nher report and lestifJed thatll meant that various spots of the testes (testicular Interstitium '.Illd the semJl1iferous tissue) were dead and were replaced by just the area of hemorrhage. Sections or Lhe tissue shmved hemorrhagic necrosis in which the testIcular parenchyma was replaced by hemorrhagH,: areas, whIch mean! ILwas all deud. Hemorrhagic necrosis of more than 70-g0<X) of the testicular parenchyma was found upon her pathology examination. She 1l1dlCaLed111 her report thut the changes arc conslstenL \vnh more than SIX to elgh! hours of ischemia from the time the process began In the patient, wherc the blood supply to that particular area was compromIsed. but continued that IschemIa does not mean Lhat there was necrosis. Back in 1999, the pathologist would not have heen automatIcally notified JI' emergency surgel)' were conducted on a Sunday. Del'endant's expert, Mark S. SlIberman, M D., avers that he IS hcensed to practIce llledielllC In New York Stale and Lhat he is board cerLificd in emergency medicine, critIcal c<lre mcdicll1c, pulmonary medic1Tle and mternal medlcl1le. He set forth the matcnal and records reViewed, includmg the Peconic Bay Medical Center hospital record, and stated, withm a reasonahle degrec of medical cerlamty. that the hospital sLaff at Peconic l3ay Medical Center on January 3, 1999, was at all tlllles \vithlll the "confines or good and accepted medical praclJce." He set forth the inl'ant plainlJJFs hIstory, nOling that the Infant's mother noticed her son's Lestes were swollen and th,lt he had heen walkJllg funny sInce about 11'00 a.m. on January \ !99(J, so she lOok him 10 Centr,iI Suffolk Hnspltal (Peconic Bay MeJicul CeIlter). He \,vas seen by the tnage nurse at 12:20 p.rn. at \vhlch tIme it was noled that the infant's scrotum WdS warm and swollen. At 12:45 jJ.m. whcn Lhe llll'ant was secn hy lhe physiclan's aSSistant, Urinalysis, blood work and emergency LesLlcul:lr sonogram were ordered and It was determinee! that the chlid's conditIOn was emergent. A prelImInary diagnosis ul' possible lestlcular torsion was made and, a! 1:2·55 p.m., a call was placed to the on-call urologisc Dr Pastore. A follow-up call was made to Dr. Pastore at !: 15 p.m. At 1:42 p.nl , Dr Pastore called lhe emergency room and adVIsed that Dr. Steckler should he called. Dr. Stcl~kler rcsponded hy phone at 1:45 jJ.1l1 and arrrved at the chJld's bedSide at 2:42 P_111 [* 7] Dileo v. Central Suffolk. e1 al. Index No.: 20460/2008 Page 7 Dr. Silhenllun opines that one role of the emergency room starf is to determine the necessity of consultation with a specialist and. in this matter. within twenty five minutcs or the chikfs prescntation to the emergency room it was determined that a urologist would be needed 10 evaluate him. Dr. Silberman continued that once it has been determined that a speCIalist should be consulted concerning a patient, the emergency room staff IS responsible to monitor the patlent's vital signs. keep (hc patient comfonable and complete any previous orders, which he stated was done. Dr. Silberman opines that it would not be appropliatc to aucmpt any surgical procedures on a patien! while in the emergency room as it should take place in an operating room in a stelile environment. that it is not possible to afllrmativcly detelmine how many times a tcsticle has rotated and whether such rotation is clockwise or counterclockwise unless there is surgical intervention. He continued that a request for an operating room for a surgical procedure must be made by the surgeon who conducts thc operation and that once Dr. Steckler requested an operating room for the exploratory surgery. the hospilal staff responsible for preparing the operating room for use was summoned and there was no delay with respect to the time tn which the operaling room was prepared for lIse. Dr. Silhennan also opined that in 1999 it was entirely appropriate and withtll the standards of medical practice to use a doppler sonogram lO examine a patient's testicle, as was done. He concluded that the Peco11lc Bay Medical Center staff appropriately cared for the infant during his time in the emergency room, that they <.tcted appropliatcly and timely in the preparation of the operating room and that no staff deVIated from good and accepted standards or practice on behalf of the infant plail1lill and that there is no eVidence that any inJurics claImed by the Infant plaintiff were causally related to the treatment rendered at the hospital. Based upon the foregOlng, 1t is determtIled that Peconic Bay Medical Center has not cswbl ished prililO/({(:ie enl it le111en to summary j udgmcnt di SIII issi 11g the com]) Iai n 1. A t no 11 docs t me Dr. Silberman set forth the appropnate standard of care involving torsion or the tcsticle. which standard he st,ltes the hospital staff did not depart from Although he stated that there was no delay 111 c'lliing the uroluglst. 111 obt.unrng a sonognlm, and in preparing the operating room. he did nol st,lte the UllHlUlltof tIme that was appropriate in each instance und how the hospiwl comported wIlh the same. Nor docs he support his opil1lon that none or the injuries claimcd by the mfal1t plainllil wcre not caus,dly related to any care and treatment. or lack thereof, hy the hospital stall except in a conclusory manner. The pl~lllltifrs expert is a physician licensed tn practice medicine in New York ilnd is board ceni ficd ill cmergency mcdicine. The expert 0PlllCd WIthin a reasonable degree of medical cert~llnty. that all the defendants depal1cd from good <tnd accepted medical practice in the treall1lent of the infant pJ~lintirr on January 3. J999. and that sueh departures caused Injury to the chIld. including a suhstalllial lessening of the likelihood of a favorable outcome. The plailllirr's expcrl stated that testicular torsion is a condition where the spermatic cord twists. cUlting offhlood !low to the affected tcstlclc, and is an emergency condition. Any male child presenling with an acute scrotum must he presumed to he suffering from teslicular torsion. [* 8] nill''' \'. C(,lltr~1 Suffolk. ('t al. Indl'x No.: 20460/2008 Pagl' 8 The plaintilT"s expc11 set fm1h thc pC!1incnt history and stared that thc record indicatcs that thc sonogram ordcred at 1~:4) P.A. Rubin was not completed until '2:37 p.m .. or onc hour and hy fi fty-two mmutes after it was ordered. The plaintiff's CXPC11 avers that lhe applicable standard was for sonographcrs to be availablc on one-half hour notice on the wcekend. P./\.. Rubin spoke with the hospital radiologIst, Dr. Mitarotondo at ]:40 p.m., and it was reported that there was no demonstrable flow to the testicle, consistent with torsioll. The typed repon of the sonogram indicates "Iack of demonstrable flow speaks for torsion." The plaintiff's expert contlOlleci that the delay 111 performmg the sonogram and reporting Its result were departures from good and accepted medical practice and that It should have only taken about 15 minutes to perform the sonogram, for a total or 4) m11lutes from the tlllle the sonogram was requested, giving 30 mll1utes for the snnographc:r to ,ltT1VC.which IS the applicable standard of care. The plaintiff's expert therefore sLated that the sonogram, requested at 12:45, should have been in hand in the emergency room by I :45 p.m., by whIch time the on-call urologist should have alTived and the opcrating room made ready by directi ve of either the emergency room physician or on-call urologists. The plaintiff's expCI1 conlinued that the page by the P.A for Dr. Pastore should have been a SlUt or emergency page, given that testicular torsion can result in the loss of a testicle and that it is always considered a medical emergency. It was a furlher depanure from good and accepted standards of care for the hospital emergency room P.A. not to have called Dr. PaslOrc a third time within I) minutes of the second page, or to call another urologist after not having heard from Dc Pastore immediately following the second page, A total of 57 minutes elapsed from the imtml page for Dr. Pastore until he spokc with the P.A. A tolal of one hour and fifty two minules elapsed from the Initial page for Dr. Pastore until Dc Steckler lO <.tlTivedat the hospital. The delays caused by the failure lo make a thIrd call to the on-call urologist and the failurc to make a stat page werc dcpartures from good and accept cd medical practicc. The plaintIff's expert further stated that It was also a departure hy Dr. Pastore to delay 1Ilresponding to the pages, espeCIally aftcr the sccond pagc. Thc plainllff's expert cont11lLlcd that, contrary to Dr. Silberman's 0p11110n,thc emergency departmelll's role W;'lS no! limned to ussesslng complamts and dctcrmliling whether there were emergent Issues and then requesting appropriate consultations from specwlJsts. The hospital faded III its responsibility to timely pcrform the sonogram ordered by thc P.A. and to have sonogmphy staff aV;l1lablc on Il1my m11lutes notice, III violation of hospnal policy. He added that the hospItal falled to Limely follow up the pager request to the on-call radiologIst and did not making a stat call, thus causing delays in the infant's care and (reatment in an emcrgent siluatioll_ He additionally added that thc hospItal's role. once the speciallsi was notIfied. was nol jusilo keep the pat ient cOlllfol1ahle and monitor vllal sIgns. as such treatment was not treating the emergenl condition of testicular torsion. The plaintiffs ex-pelt continued that Dr. Stccklcrdid not alTive to see thc patient until 2:42 p.lll. and although he was well aware of the diagnosis of tors1011by thc P.I\. and radiologist. he optcd for a second sonogram in that the original sonogram was suboptimal. thus delaying completion of the sonogram untd 2:37 p.m. Dr. Steckler did not request an operating roOlll ulltil 3::20 and could have requested the operating room when notified earlier by the P_A. at 1:45 p.l11. that the infant had a torsion of the testicle. The plalOtiff"s expert stated that once the el11crgency departmcnt learncd fmm the radiologist that thcrc was a torsion of the testIcle, therc was a need for an emergency [* 9] Dileo \'. ('('niral Suffolk. d OIL Index No.: 20-1-60/2008 Page 9 surgery. Thereafter. there was a delay by the hospital in readymg lhe operating room. fun her uelaying the mfant 's surgery. The infant patient did nO( enterthe operating room until approximalely 4:30 p.m. The plaintiff's expen averred that the time uelays in treating the five and one-half year old plaintiff constituted dcpal1ures from good and accepted medical praclicc hy the hospital's emergency department stafr and the on-call neurologists employed by UrologIcal Associates. Based upon the foregoing, it is determined that the plaintiff has raised factual issues which preclude summary judgment dismissing the complaint on the issue of whether the employees or the dcl"endant hospItal departed from good and accepICd standards of care, In the reply, the defendant's expert hus proffered new urgul11ents in Ins affidavIt not set forth in his originul supportmg affidaVll and the same arc not conSIdered. Accordingly, It is ORDERED that thIS motIon (002) by the defendants Peconic Bay Medical Center s/h/a Central Suffolk 1-I0spilLlJ n/lJa Peconic Bay Medical Centee for an order granting summary Judgment dismisslllg the complaint is denied. HON. WILLIAM B. [{EBOLlNI, J.S.c. ___ FINAL DISPOSITION , NON-FINAL DISIJOSITION

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