Obregon v New York & Presbyt. Hosp.

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Obregon v New York & Presbyt. Hosp. 2012 NY Slip Op 30681(U) March 19, 2012 Supreme Court, New York County Docket Number: 110782/08 Judge: Joan B. Lobis 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. SCANNED ON 312112012 [* 1] - NEW YORK COUNTY SUPREME COURT OF THE STATE OF MEW YORK Lau PRESENT: The following papem, numbered 1 to PART G were read on thin motlon to@ PAPmG Notlce of Motion/ Order to Show Cause Answerlng Affldavltm Affldavlts - Exhibits ... - Exhlbits 7% I+ Roplylng Affldavlts Yes Cross-Motion: No Upon the foregoing papers, It Is ordored that thlo motion FILED Dated: O B. LOBlS I I h DlSPOSlTlOM NON-FINAL J.S.C. L, / Check one: WFINAL DISPOSITION Check if appropriate: 0 DO NOT PQST 0 SUBMIT ORDER/ JLODG. 0 REFERENCE SEVTLE ORDER/ JUDG. [* 2] SUYHEME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: TAS PART 6 ...................................................................... X LOUIS RAPIIAEL NAJAR OBREGON, Individually and as Adininistralor of the Estate of ROBERTO NAJAR deceased, P1ai n ti ff, -against- Index No. 1 10782/08 Decision and Order THE NEW YORK AND PRESBYTERIAN HOSPITAL, IGOK OUGORETS, M.D. and SOUMTTKA R. EACHEMPATI, M.D., YORK couNTy CLERK S (-JF,qCF Defendants The New York and Presbyterian Hospital ( NYPH ) and Sournitra R. Uachempati, M.D., iiiove, by order to show cause, for suiiimary judgment pursuant to C.P.L.R. Kule 32 12. Plaintiff Louis Raphael Najar Obregon opposes the motion. This action, sounding in medical malpractice, lack of informed conscnt, and wrongful death, relates to iiicdical care that the moving defendants provided to plaintiff s decedent Roberto Najar, a 19-year old inan who was struck by an automobile as a pedcstrian on May 24, 2006. Mr. Najar was initially hospitalized at St. Vincent s Medical Centcr ( SVMC ) with major hcad and brain trauma. At SVMC, an emergency Icft-sided decornpressivc craniectomy was perfornicd to address brain swelling. After two days, Mr. Najar was transferred to NYPII. He arrived at NYPH in a coma and on inechanical vcntilatioii. On the day of his adiiiission to NYPI-I, Dr. Eachempati perfonned an cxploralory laparoscopy and inserted a gastrostoiny tube ( G-tubc ) so thal Mr. Najar lgor Ougoretz, M.D. s / h h Igor Ougorcts, M.D., was nevcr served with the complaint and has not appcared, although hc was deposed. [* 3] could receive nutrients; feedings were coninienced through the G-tube on May 27,2006. Over the next two months, Mr. Najar s care was complicated by pneumonia and conlinued swelling of the brain. On June 8, he underwent a right-sided craniectomy. On June 14, Dr. Eachempati performed a tracheostomy to facilitatc long-tcnn mechanical ventilation. On July 18, surgeons placed a shun1 to drain excess cerebrospinal fluid from the ventricles in Mr. Najar s brain and inserted a plate to replace the bonc removed during the right-sided cranicctoiny. However, ten days later, Mr. Najar developed hydrocephalus and ventriculitis, and his surgeons rernovcd the right-sided plate and shunt. He was diagnosed with a multi-drug rcsistant Klebsiella pneurnoniae bacterial infcction. The records reflect that on July 30,2006, Mr. Najarvoinited a yellowish liquid while receiving a feeding through the G-tube and his tube feedings were temporarily discontinued and replaced with intravenous total parenteral nutrition ( TPN ) feedings. His surgical team, 011 which Dr. Eachempati was an attending physician, was made aware of the problem. On July 3 1 , Mr. Najar s G-tube was found out of the stoma and was reinserted. On August 1 and 2, large ainounls of brown, serous drainage were observed around the G-tube site, and his physicians were made aware. Mr. Najar s physicians made attempts to use larger G-tubes, but the drainage kept reoccurring. Repeated abdominal imaging studics over August 2 and 4 indicated a non-obstructed gas pattern and no obstruction in the small intestine. By August 7, it was notcd that the skin around the G-hbe was showing signs ofbreakdown. G-tube feedings were again discontinued and replaced with TPN fecdings. On August 10, Dr. Eachernpati perfornicd surgical intervention to address a gastroculaneous fistula at the insertion site. IIc removed the G-tubc; resected the tissue near thc inscrtion site and closed the site; closed thc stomach with staplcs; and performed a jejunostomy to -2- [* 4] place a J-tube to delivcr fcedings directly into the small intestine. He also inscrtcd an orogastric tube (through the mouth and into the stomach) to decompress the stomach and allow air and excess fluid to exit the stomach. During this procedure, adhesions were noted bctwccn the stomach and interior wall of thc abdomen; the adhesions were lysed. Over the ncxt four days, Mr. Najar had a post-operative fcvcr, elevated white blood cell counts, and continued drainage. He had a nondistended, flat soft abdomen until August 14, when the abdomen was noted to be distendcd and taut. Additionally, he had cxprcssed emesis (vomited) and continued to have drainage from thc orogastric tube. Later on August 14, Mr. Najar had a medium sized bowel movement and afterward his abdomen was described as soft and nontendcr. Even later in the evening on August 14, it was noted that Mr. Najar s abdomen was mildly distcndcd. The plan was to stop J-tube feedings until the morning, in order lo conduct an obstruction x-ray scrics. At approxiinately 6:12 a.m. on August 15, 2006, Mr. Najar underwent a bcdsidc abdominal x-ray, which indicatcd an indistinct bowel gas pattcrn and no observed obstruction. At approximately 6:30 a.m., Mr. Najar arrested and was rcsuscitated. After he was rcsuscitated, his abdomen was noted to bc distended, finn, and rounded, with no audible bowel sounds. At approximately 9:OO am., Mr. Najar had a bowel movement. At approximately 1O:OO a m . , his bladder pressurc was noted to be elevatcd, which is indicative of elevated intra-abdominal pressure and possible abdominal compartment syndrome. Dr. Eachempati suspected abdominal compartment syndrome, and pcrforined an exploratory laparotomy at approximately noon that day. -3- Dr. [* 5] Eachempati observed an cdeinatous bowel, consistcnt with abdominal compartment syndrome, and a small pcrforalion along the staple line of the previous gastrectomy. He suturcd thc perforation and placed a dccoinpressive gastrostomy tube in a separate part of the stomach, and left the abdorncn open to allow for swclling to subside and promote healing. On August 23, 2006, Dr. Eachempati attempted to closc thc abdominal wound froin the August I5 surgery. He observed an abscess in the sriiall bowel, which was evacuated. He observed leakage at the J-tubc sitc and another perroration in thc sinall bowel. He resected part ofthe bowel, which had active iiiflainination and ischemia. A culture of the peritoneal fluid was negative for bactcria or fungi. Throughout his hospitalization, Mr. N a j a was consistently described as bcing in a stupor as a result of the trauinatic brain injury he experienced during the accidcnt. Hc rcquircd incchaiiical ventilation and tube fccdings. After the accident, he never again spoke or communicated nieaningfully, although he was able to open his cyes aiid move his arms somewhat. On September 1,2006, Mr. Najar wcnt into cardiogenic shock and was pronounced dead following unsuccessful resuscitation efforts. Thc autopsy report indicates that Mr. Najar died froin inulliple complications of blunl impacts of thc head, torso, and extremities, with fractures and visceral injuries. Plaintiff allegcs that defendants were negligent in failing lo recognize and treat Mr. Najar s apparent bowel obstruction. Plaintiffs allegations primarily focus on what is denoted as the terminal month of Mr. Najar s hospitalization. By this motion, defendants argue that the evidence supports a priina facie finding that thcir care and treatment of Mr. Najar was at all times appropriatc and within acccptcd standards of medical care, and that none ofthc allcged departures proximately -4- [* 6] causcd Mr. Najar s injuries or death. Plaintiff maintains that issues of fact exist as to whcther dcfcndants failcd to diagnose a gastrointestinal obstruction. As cstablishcd by the Court of Appeals in Alvarez v. Prospect Hosp., 68 N.Y .2d 320, 324 (1 986) , and ( 64 N.Y.2d 85 1, 853 (1983, and as has recentlybeenreiterated by the First Department, it is a cornerstone ofNew York jurisprudcncc that the proponent o f a motion for summary judgment must demonstrate that there are no inaterial issucs of fact in disputc, and that [he or she] is entitled to judgment as a matter of law. Ostrov v. Rozbruch, - A.D.3d -, 2012 N.Y. Slip Op. 22, **9-10 (1st Dep t January 3 , 2012), citing Winearad, 64 N.Y.2d at 853. In ordcr to establish cntitlenicnt to suinmary judgment in a medical inalpractice case, a physician must demonstrate that s/he did not depart froin accepted standards of practice or that ifthere was a departure, it did not proximately cause the patient s injury. Roques v . Noble, 73 A.D.3d 204, 206 (1st Dep t 2010). When medical inalpractice forms the basis of a wrongful death action, in establishing that he/she did not proximately cause the injuries alleged to have caused plaintiffs death, a defendant establishes prima facie entitlement to summary judgment as to the wrongful death action as well. Once a movant meets this burden, it is incumbent upon thc opposing party lo proffer evidence sufficient to establish the existence of a material issue of fact requiring a trial. Ostrov, at **IO, citing Alvarcz, 68 N.Y.2d at 324. In medical inalpracticc actions, expert medical testimony is the sine qua non for demonstrating cither thc abscncc or prcsence of material issues of fact pertaining to departure froin acccpted inedical practice or proxiniatc causc. -5- [* 7] In support of defendants motion, they submit an affirmation from Ronald J. Simon, M.D., who sets forth that he is a physician liccnsed to practice mcdicine in New York and board certified in surgery and surgical intensive care. IIe states that in rcaching his opinions, hc reviewed the medical records from SVMC and NYPH; plaintifrs bills of particulars; and the dcposilion tcstiinony of plaintiff, Dr. Eachcmpali, and Dr. Ougorcts. Dr. Simon opines that the care provided to Mr. Najar at NYPH was in keeping with accepted standards ofcare and did not proximately causc his cardiac arrest or dcath. He notes that Mr. Najar suffercd a substantial brain injury from the motor vehicle accident. He statcs that infection in a compromised patient such as Mr. Najar, in an ICU sclling, with thc injuries and interventions described above, is a known complication, and opines that Mr. Najar was propcrly treated with antibiotics and othcr interventions to address the infections. Dr. Simon points out that by August 2,2006, Mr. Najar had lost 66 pounds, and that the bloody drainage around the skin inscrtion site of the G-tube reflccted the loss of a tight seal of thc stomach wall around the G-tube where it enters thc stomach. IIc also notes that Dr. Eachempati observed a gastrocutancous fistula during the August 10,2006 surgcry to remove thc G-tube, which Dr. Simon opincs is consistcnt with metabolic compromise and erosion of tissue around the gastric entry site in a chronically and severely ill patient. He opines that with these findings, it was appropriate to attempt to utilize larger G-tubes, but after two attempts at largcr G-tubes, it was clear that the G-tube was no longer a viablc option, and it was proper to hold G-tube feedings and start TPN feedings. Dr. Simon sets forth that TPN (intravenous) feedings arc not ideal for long-term fecding, thus defendants decision to insert a J-tube was propcr and appropriate. He statcs that Dr. Eachcmpali s dccision to resect (remove) the compromised tissue from around the G-tubc insertion site and to close that entry site with staples was proper and in accordance with accepted standards of carc. He [* 8] further opines that i t was appropriatc to use the orogastric tube with suction to decompress the stomach and drain stomach contents thereafter. Dr. Simon opines that Mr. Najar s clinical course from August I 1 - 13, aftcr the J-tube was placed, was stable and unrcrnarkable. By August 13, it was appropriate to discontinue orogastric suctioning of the stomach contents in favor of straight orogastric tube drainage in preparation for the eventual removal of thc orogastric tube. Further, on August 14, it was appropriate to call for a surgical consult bccaiise there was increased drainage of the stoinach contents, enicsis, and one entry of a taut, distended abdomen at 8:OO a.m., evcn though three subsequent entries that day reflected no abdominal distension. Dr. Simon states that Mr. Najar had stable vital signs within normal limits, and the Fact that he passed a bowel movcinent did not suggest a bowel obstruction or ilcus (decrcased bowel iiiotility or peristalsis). Additionally, an abdominal x-ray on August 15 did not demonstrate any frank obstruction or edema substantial enough to be consistent with abdominal compartment syndrome. Ultimately, when Dr. Eachempati perfoniied thc exploratory procedure, hc did not identify a bowel obstruction. Regardless, Dr. Simon opines that even if there had been a bowel obstruction, it would not have caused Mr. Najar s arrest. Dr. Simon opines that the substantial abdominal distension that occurred after Mr. Najar arrested on August 15, 2006, was consistent with the interventions (administration of largc volumes of fluids and cardiopulinonary resuscitation) undertakcn to resuscitate Mr. Najar. He statcs that peritoneal inflammation and perforation at the suture line in the stomach are consistent with resuscilativc efforts. However, hc further states that perforation at the suture linc in the stomach -7- [* 9] could have occurred even without resuscitativc efforts, because of the compromised tissuc around the G-tube insertion sitc of this chronically and severely ill patient. Dr. Simon further asserts that the August 23, 2006 surgery to attempt to close the abdoineii was appropriatc; that thc abscess, leakage, and perforation were identified and repaired, and were consistent with a metabolically compromised paticnt; and that it was appropriate to leavc thc abdonien open given cvidence of continuing intra-abdominal edema. Dr. Simon opines that even though Mr. Na-jar arrcsted and died on September 1, 2006, his care was in keeping with acccpted standards of care. Dr. Simon opines that Mr. Najar was properly supported and treatcd for his continuing inedical issues, and that his death was not causcd by any deparhlre from accepted standards in that continuing care. He scts forth that in a patient as severely and chronically ill as Mr. Najar, thc ctiology of events such as cardiac arrest are frequently multifactorial and attributablc to thc underlying chronic and severe illness in the absence of any specific clcar mechanism of arrest. In opposition to defcndants motion, plaintiff submits an affirmation from a physician (name redacted) licensed to practice incdicine in New York and board certified in intcrnal and critical care mcdicine. The expert states that s h e reviewed the NYPH records; thc deposition tcstimony of Drs. Eachernpati and Ougorets; and Dr. Simon s affirmation. Plaintiffs expert opines that thc inedical care provided to Mr. Najar indicates a failure to recognize and treat the symptoms of an apparent bowel obstruction early in the course of thc adverse abdominal events. The expert statcs that there wcre three possiblc causes of the obstruction: ileus, adhcsions, or abdominal compartment syndrome. Plaintiff s expert sets forth that there were gastrointestinal -8- [* 10] complications - emesis and persistent bloody drainage-between July 30 and August I O , 2006. The expert opines that emesis and drainage were evidencc of an ongoing obstruction, which likely began on July 30, when Mr. Najar voinitcd. Thc cxpert sets forth that persistent drainage of gastrointestinal secretions through the gastrostomy stoma, dcspite discontinuing the enteral tube feedings, should havc raised a suspicion for a bowel obstruction and should havc prompted an evaluation for bowel obstruction and decomprcssioii ofthc uppcr gastrointestinal tract through the G-tube or the orogastric tube, but that action was only taken on August 10. Plaintiffs expert opines that the failure to take action prior to August 10 was a departurc froin accepted care and treatment, and that the ongoing departure allowed the obstruction to persist and contributc to a steady increase in abdominal pressure over ten (1 0) days. The expert opines that the unattended progression of thc bowel obstruction caused the fistula, and that leakage of the fistula lead to difhse peritonitis and scpticeiiiia froin Klebsiclla, which in turn progressed to severe sepsis, niultiorgan failure, and death. Plaintiffs expert opines that the constcllatioii of Mr. Najar s symptoms after August 10-fever, elevated white blood ccll counts, vomiting, dccreascd urine output, and drainage-suggcstcd sevcre sepsis with progressivc multiorgan M u r e , which was latcr confinned by the growth of Klebsiella pneumoniac from blood cultures. Defenda ts argue that plaintiffs expert s opinion is conclusory, is not based on evidence in thc record, and fails to address Dr. Simon s assertions. They point out that thc rccords bctween July 30 and August 10, 2006, lack any refercncc to clinical evidence of an obstruction. They further point out that plaintifrs expert fails to explain how the fistula caused discharge outsidc the body at the site where thc feeding tube entered the body. Additionally, defendants point out that -9- [* 11] plaintiffs cxpcrt fails to provide any statement of the mechanism by which thc conclusory trail of cvciits-bowel obstruction, causing tistula, causing peritonitis and septicemia, causing inultiorgan failure and dcath-allegedly led from one to the other with reference to the clinical evidcncc in thc record. Defendants point out that plaintifi s expert fails to address Dr. Simon s opinion that the lcakage froin around the gastric feeding tube was attributable to thc breakdown ortissues at the lube site after two months of bcing in placc in a medically compromised patient; fails to address the radiological studies performed during the time period in question that did not reveal the presence of a bowel obstruction; and fails to address thc lack of clinical presentation of a bowel obstruction, including the indications on Mr. Najar s chart that he continued to pass bowcl movements. Defendants have made out a prima facie case for suiiimary judgment in their favor by lendering an expert s opinion, supported by evidence in the records, that defendants did not depart froin the standard of care in treating Mr. Najar. Dr. Simon provides reasons consistent with Mr. Najar s condition as to why the discharge was occurring, why the fistula occurred, and why the G-tube ultiniatcly railed over the time period bctween July 30 and August 10,2006. Thcrc arc also a number of radiological studies in the medical chart froin July 30 to August 10, 2006, which indicated that thcrc was no evidence of a bowel obstruction. Defendants have demonstrated that they did not fail to diagnose a bowel obstruction. In opposition, plaintiff fails to raise a trial issue of fact becausc his expert s affidavit is conclusory and vague and does not address the facts in the record or Dr. Simon s opinions regarding same. Plaintifi s cxpert states that the purported bowel obstruction likely began on July 30, 2006, as evidenccd by emesis, and continued until August 10, 2006, as cvidenced by the G-tubc drainage. Plaintifi s expert fails to address Dr. Simon s opinion -10- [* 12] .JOAN 4, LOIIIS, .J.S;.C.

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