Nasca v Chitkara
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Nasca v Chitkara 2012 NY Slip Op 30881(U) March 28, 2012 Sup Ct, Suffolk County Docket Number: 08-44775 Judge: Daniel M. Martin 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] INDEX No. CAL No. SJIORT FORM OKDEI\ 08-44775 II-OI435MM SUPREME COURT - STATE OF NEW YORK IAS. PART 9 - SUFFOLK COUNTY PRESENT: Hon. DANIEL M. MARTIN Justie-c of the Supreme Court MOTION DATE 12-13-11 ADJ. DATE 1-24-12 Mot. Seq. U 004 - MD ---------------------------------------------------------------)( CHASE NASCA, an 111t~ll1t his Father and by Natural Guardian, DEAN NASCA, Plaintiffs, DUFFY & DUFFY Attorney for Plaintiff 1370 RXR Plaza, West Tower, 131h Floor Uniondale, New York 11556 I·lARRlS BEACH PLLC Attorney for Defendant Maribeth B. Chitkara, M.D. 100 Wall Street. 23rd Floor New York, New York 10005 ~against - MARIBETH B. CHITKARA, M.D., ROBYN LaBARCA, MD. and SHANE McALLISTER, M.D., Defendants. ERIC T. SCHNEIDERMAN, ESQ. A'ITORNEY GENERAL OF THE STATE OF NY Attorney for Defendants Robyn LaBarca, M.D. and Shane McAllister, M.D. 120 Broadway, 12th rloor New York, New York [0271 ---------------------------------------------------------------X Upollll1e following papers llumbered 1 to ~ read on lhis motiol1 for summary jUdUIllCllt ; Notice of Motion! Ol·der 1\)Show Cause and supporting pap8rs (004) I - 25 ; Notice of Cross MOlioll and supPo11ing papers _; Answering Al"Iidavits and supp0r1il1l;. paper._ 29-30; Replying Affidavils and supporting j);Jpers 26-28 , Othcr_: (dliel .IFte1 he",i1i; counsel ill .'UPI'OI [.t1jJ opposeJ 10 the 1I1()tiun) it I~. ORDERED that motion (004) by tbe defendant, Maribelh B. Chitkara, M.D., pursuant to CPLR 3212 lor an order grantmg suml11atyjudgment dismissing the complaint as asserted against her is denied. In the complalllt. p[aimilTsets forth causes of action sounding in medical malpractice on behalf of the infant plaintiff, Chase Nasca. It is claimed that beginning on or about February 19,2008, dUring a continuous course of care and treatmcnt, the two year old infant plaintiff was a paticnt of Maribeth I3. Chitkara, M.D. Robyn LaBarca, M.D., and Shane McAllister, M.D., and that the defendants failed to timely and properly diagnos~ and treat hIm for a left testicular torsion. rr is further alleged that the defendants failed to properly inform the infant's parents oCthe risks, hazards, and alternatives of the procedures utilized in treating the infant plaintiff. The ddendant, M,lribeth Chltkam, M.D .., sceks summary judgmcnt dismissing the complaint as ~ls:;('rlcd against h(,l"UI1 the bases that she owed no duty of care to the lnj~l1ltp[aintilTprior to his admission to the [* 2] N,lsca v Chitkara Index No. 08-44775 Page 2 pl"(i1atric 11001'at Stony Brook University Hospital on February 19, 200S, did not depart hom accepted standards ofcarc 111 her care and treatment of the InHmt plaliltitt appropriately rehed upol11he in1"(mnatH.ll1 convc;yed to her about the 1I1fant plamtirT; is not vicariously ilable for the Stony Brook University Hospital rcs](1cnts, Dr. LaBi.ln:a, Dr. McAllister, and Dr. Cohen, who vvcre cmployed by the State of New York/Stony Brook University Hospital; and there IS nothing that she (lid or did not do which proxirnately caused the IlljUI'ICS nlleged to have been sustained by the II1fant plaintiff. The proponent of a SUl1mUIl)! judgment motion lllust muke a Ixnna I'~lcieShOWlllg of cntitlement to judgment as a mattcr of law, tendering sufficient evidence to eliminate any material Issues of fact from the ca:-1I.: '['0 grant summary judgment it must clearly appear that no material and triable Issue of lilct IS presented (Fdemls (~j"Al1illl{llsI' Associated Fur lv/frs., 46 NY2d 1065,416 NYS2d 790 1:1979]; SiII/1/aJl v Twentieth Century-Fox Film COIJ}()ratioll, 3 NY2d 395,165 NYS2d 498 [1957J). The movant has the illitial burden oj' provlllg entitleillent to summary judgment (Willcgrad v N. t: u. /v/edica/ Cell tel', 64 NY2d 851,487 NYS2d 31 () [1(851). Failure to make such a showing reqUIres denial of the motion, regardless of the sulliCiency of the 0ppOSlllg papers (Wil1egrad v N. Y. [1, Medical CClller, supm). Once such proof has been olTered, the burden then shifts to the OppOSlllg party, who, 111 order to defeat the motion for summary Judgment, nHlst proffer evidence in admissible form ... and must "shO\v facts sufficient to require a trial of any issue of l~lct" (CPLR 3212[b]; ZUCker11llllIv Ci(1' ofl'iew York, 49 NY2d 557, 427 NYS2d 595 [1980J). The 0ppOSll1g party must assemble, Jay bare and reveal his proof in order to establlsh that the matters set f()rtb III his pleadll1gs arc re~l1 and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 1981'1) III support of motion (004). Dr. Chitkara bas submitted, inter alia, an attorney's affirmation, a copy of the summons and complaint her answer, notice ofclail1l, and the veriikd and supplemental venfied bills of particulars; the lHlslgned but certitied transcripts of the 50-H exam11lations of Dean Nnsca and Michelle Nasca, each dared December 2, 2009, each With proof of service pursuant to CPLR 3116; a copy of the sIgn cd transcnpt of the examination before trial of Shane McAllister dated October 21,2010; the unsigned and llncertltjed copy of tile transcript orthe exammation of the moving defendant Maribelh Chitkara, M D. with proof of maJi II1g pursuant to CPLR 3116 and \vhlch IS adopted as accurate by movant (sec, Ash(j"I' Won Ok Lee. 57 AD3d 700, 868 NYS2d 906 [2d Dcpt 2008]); the ullsJgncd but certified transcripts oftllc eX,lllllnatloll bel"orc trial of Dean Nasca and f\!hchelle Nasca, each dated August 11,2010 (sec. Za/ot v Zieba, 81 AD3d 'l3S, 917 NYS2d 285 12d Dcpt2011J); certified COP1CS the II1I~llltplall1tiff's record fl'o1l1Stony Brook J-!ospltli; tile of unsigned but eertllied transcnpt of the examinatIOn before trial of Robyn LaBarea, M.D. darcd December 19. 2010; the anil'lllatlon orManbeth Chitkara, M.D. \vhich j~llis to comport With CPLR 210G in that It IS not ~I sworn and notan7.ed party aftidavit and the expert aftJrmations of Joseph.l. Abularrage, M.D. ;lnd LHle Palmer, .M.D. The rl'qllisite elcmcnts of proof in a medical malpractice actioll arc ( I) a clcvl~ltiol1 or dcp,lrture hOlll ,lCccptcd praclice and (2) evidence that such departure was a proXllllatc calise ofJnjury or damuge (Ho/toll I' Sprain Bmok ,Wanor Nursing Home, 253 AD2d 852, 678 NYS2d 503 [2d Dept 1995J, ifjJP denied 92 1\I\'2d ,~I:';, 05 NYS2d 420 I()(Nj). To prove a pnma facie CH:-;e 6 ofilledieal m~l1praclicc, i.lpLlintl tlll1L1st establish that (kfcndant's l1l'g1Jgcnce was (l substantial bctor 111 producing the alleged inJury (sec, Derdiarhtfl )! Felix COllff'actillg Corp.. 51 NY2d 30S. 434 NYS2d 166 [1980]; Prete I' Rl~!la-Del/letrious, 224 AD2d ()74, ().\S NYS2d 70U [2d Dept 1~96J). i:,xeept as to matters \,vithln the ordin,-Iry experiellce and knowlcdge ol'laYI11<':I1, expert medIcal 0PlllIOIl IS necessary to prove a deViation or departure 1i'om acccpted stnndards 01' medic,tl C~lrc amI thnt such departure was ,I prOXllll<tte cause of the plall1tiffs injury (see, Fiore)' Galang, ()4 NY1d l.)t)().~l~t) NYS2d 471.I()K5]; Lyolls" McCauley, 252 AD2d 516, 517, 675 NYS2d 375 [2d DcptJ ape dCfllcd 92 NY1d S 14, ()K I NYS2d 475 [I 99K.I, BloolII v Circv oj"New York, 202 AD2d 465, 465, ()09 NYS2d 45 [2d Dcp! 1(>941) r [* 3] Nasca v Chitkara lnde.': Nu. O~-44775 Page 3 Dean Nasc<l testified that his son Chase was born on October 2, 20()S and he had no health problems_ On February I i-j, 2008, IllS wife was bathing Chase when she noticed that the left sIde OrillS SI.Totl111l was a little red, With the appearance of a solid rash about an 1I1ch long, \vlth no swel1111g. Pnor to that InCIdent, he never notIced his son havlllg any unnary problems, or redness In his scrotum or testicles. except for an occasIOnal diaper rash. 011 the 1ll0rlllng of Fcbnwrv 19, 2008, the child's scrotum was still red, looked sl ightly svvollcn, ~ ,and gaw the appearance of being one sac lllstead of two. When Michelle Nasca took Clwse to tile pedlatricldll .. she was instructed to take h1l11to the emergency department to be evaluated tor possible testicular torSion Between 2:00 p.lll. and 3:00 p.m. on February 19,2008, Dean Nasca was advised by his Wile that Chasc was belllg admitted 10 the hospital. That evemng, about 10:30, IllS son was stlll 111 emergency rOOI11 the \vaiting to be admiltcd They had been advised that he might have cancer based all his blood test results. During that evening, the child appeared to be 111 little distress, and was whming and uncomfortable. a The swclllllg Ir1hiS scrotum had lllcreased by about an inch and a half. He thought the infant 'ovas seen by Dr Chitkara In the emergency room that evening. On February 20,2008, a second sonogram of the scrotum was takcn Chase lwd still not been seen by the urologist. He \vas advised by a male physician over the telephone that there was no torsion and that his son would be discharged. Fifteen minutes later, hiS wife ca]]ed h1l11and advised that Chase was being rushed to have surgery on hiS testicle. When he arrived at the hospital, he saw the surgeon, Dr. Wasnick, whom he stated advised him that there was most likely a torsIon and that he would try to save the tcstlclc. He testified that Dr. Wasnick adVised hm1 tbnt he did not know \vhen the torsion occurred, and added that there IS a lilllltcd \vindow withlll \vhich to save the testicle. - - Michelle Nascn's testified that her SOil Chase used the wooden rocking horse in IllS room on the evening of February 18, 200g either just before or Just after hIS bath, and got off It very quickly. When he was being bathed, he told her his pec-pee hurt. She saw that his scrotum was red. When he awoke the following l1l0rlllng, IllS scrotum was red, slightly swollen and looked irritated, so she took hllll to the pediatrician, who 1I1structcd her to take the chdd to tile emergency room. Chase was admitted to Stony Brook UniverSity Hospital emergency department. She testified that she was advised tbat there were spots on hiS testicle that were inclicative of chddhood lymphoma. She was further advised tbat the sonogram revealed that his testlcle was gctting blood Ilow. Shane McAllister testified to the extent that he IS not licensed to practice medlc1l10III any state and IS employed by Stony Brook Uni versity I"vledical Center He worked in the department of pediatnc infectious disease as a second-year fellow. I-Ie admitted Chase toll North. He stated that he dId 110tsee the child In the emergency department. Robyn LaBarca \vas his senior reSIdent who would havc told hl111about the adnw;sioll pcnding frol11thc emergcney r00111. Maribeth ChItkara, M.D was the attending pediatriCIan. Hc added th,lt lJr LaHarea had written a note which he did not believe was gencr'Med prior to his scclllg Chase, and that she \vruk the admiSSIon orders on Febnmry 19,2008 at 23:20. McAllJstcr further testified that at 12:20,1.111. on February 20, 2008, he wrote his note indiCi.lting th:ll till.' child had a swollt'l1, tender Jen testicle. He used a light to transillumlJlate the len testicle to ascertain 1I'[hen.: was tlLml collection, and determined that the left testicle did not transilluminate as wcll as thc right tesltclc I k stated that the exmll was not consIstent With a hydrocele. Whcn hc reviewed the testicular ultrasound, as Indicated In his note, he determined that the test showed heterogeneous texture bilaterally \vlth positive blood flow bllatcrally 10 the testicle, and further demonstrated an enlarged left: Inguinal lymph node. 1-l1sdlffi.'n:l1ll:ti diagnosis \vas Illlcetioll versus malign<1ncy, leukclTlla less likely, possible lymphoma or prilll~lry testicular ncuplaslll, but did not include testicular torsion. At the timc, ultrasound with Doppler. alld abscnce ur crcmasteric n:l-lcx, were the means to determinc testicular torSl0n_ I-lc testified that when l1e c:\<lllllncd the llli"llnt, thcre was an absence the cremasteric rd1cx, which supported a pOSSIble diagnosis or testicular turSiOll [* 4] Nasca v Chitkara Ind~:x No. 08-44775 Page 4 He continued that he could not order an ultrasound without permission from his senior resldcIll and thl: attending. lie stated that Dr. LaBarca ordered an ultrasound of the kidneys and bladder 10 be done on February 201h ¢ He did not order a urology consult, but dIscussed obtaining the same with Dr. Lal3urca, but Dr. LaBan::<l did not illll1catc in her note that a urology consult was to be obtained. Hc testified that' it W<lShis un(krst:lndll1~ :lftcr a conversatIon with Dr. LaBarca that urology had been contacted by phone, and the C:1SC and n.::sult ol"tile Doppler ultrasound were discussed. The urology consult was ordered by Dr. Cllltkarn 011February 20, lOOK <It 10: IS a.111. McAlllst~r testified tl1at in February, 2008, he was not aware uf any standard or care related tll thl.' diagnOSIs, treatment and managcl1lcnt of testicular torsion as it IS outside the scopc orhis practice. Robyn LaBarca, M.D. testified to the extent that she first became cmployed by Ihl.' State ufNl.'w York;H Stony Brook Medical Center in June 2006 as a pediatric reSident, und that she IS now an attendmg physician al Siony Brook Hospital. She became involved in the care and treatment oCtile int~lI1tplaintJil Chase Nasca, dunng his admission to the service of Or. Maribcth Chitkara, an attending physiclall at Stony Brook, whik ~he was working onlhe pediatric floor, II North, as a noor senior for the evening of February 19,2008, during her second year ofresidelley. Her involvement in the care and treatment of the lOfant terminated at the end of her shift at 8:00 a.l11.on February 20, 2008. She received a telephone call ii'om Dr. L1Ji Daniels, an attending 111 tile emergency department, advising her that the infant, :J. patient in the cmcrgency department, \:vas being admitted. She was brided as to thc-lI11'anf~ history, exal1l1l1atioll and the results of tile labs. fler fellow resident, Dr. Youssef, spoke with Dr. Cbitkara. La8arca said Dr. Chitkara \vas her attending. Till' inbnt's ad1l11tling diagnosis was testicular lesions premised upon lesions in the testicles found on ultrasound. Dr. LaBarca was nOl trained to interpret the ultrasound images and relied upon the radiologist's interpretation. Dr. LaBarca testified that she saw and examined the infant at 12:10 a.m. on February 20, 20mt upon hiS admission to II North. She noted that the infant's right testicle was onc centlmetcr, smooth, with good transillumination, and was not tender; the left scrotum was swollen, edematous, tender to light palpation. had a negative crcmasteri reflex,1 and was two centimetcrs with poor transillumination. Differential thagnosis included orchitis. epididymitis, varicocJclc, leukemia, and testicular carcinoma She stated that her note indicated that it \V<l~ clJt'tkult to distingu1sh the cliffcrcntial diagnoses and that an oncologic process \V~l~likely due to the cxtrcll1ely elevated blood ulkai1ne phosphatase and LOJ-J. She testified that Dr Dalllcls ruled uut tcsticular torsion ba~ed upon the ultrasound results obtained while the child was in the emergency roo 111.])1' LaBarca, pursuant to her testimony, did not include testicular torsion in her dlffercntial diagnoses as it had bl.'cil ruled out by Dr. Daniels, and after her discussion with Dr. Chitkara. the child's attending physician, prior to 12: 10 'Ull .. Dr. l.aBarca stated that as a resident, it \Vas her obligation to continue the evalwuion, and thai torsion of the testicle was no longer pan of that differential diagnoses after she spoke with Dr. Daniels :md Dr. Chitkara. When Dr. I.aBarea returned 10 work 011 February 20, 2008 at 6:00 [1.n1.. she !earned that the inh1ll1 had bcen laken 10 the 0pl'rating room after a repeat ultrasound al 11 :30 a.m. rcvealed a 1'Ol".<;iol1 orthl.' child's 1cti tc~tlC1c. Dr. Wa.<.;nickperforllledthe surgery and found that the left rcstiele was nee-rotil.'. Dr. La8area had IlO nr"lliotl concern1llg \vllen the tors1on or the test1c1c occurred. She further stared that ~hc did not know' Wll,lt l.'~lLlsedthl.' testicle to bl.'col11l.'necrotic, other than [he to['Slon. She stated that torsion IS a twisting ol"the c()rds. blockmg bluod supply to the testIcle, resulting in ckath uftlle tIssue I)'om the lack orhlood supply. She tl.'slilled IDr. J.aHarca testified thai crcma~tenc rd1c:x refers to the reflexiVl,' retraction oCtile testes upon slrnking of till' int1l'r [high. When the reflex i~ negatlve, there is no retraclion uflhe testes. wluch can hl.' Indicative Orall infectious. Inflammatory process. or torsion of the testicle [* 5] Nasca v Chitk~lra Index No. OS-44775 Page .:' that there is a shun time penod \vithln which to salvage the testicle when a torslO11 develops, but she did llOl knovv' the number of hours or days. She cOllt1l1ued that Dr. \Vasllick, the urologIst, had been contacted by the emergency room 01] Fehruary 19'11 requesting that he conduct an urology consult. She did not kl1o\\/ lftll" hospital had a policy that an urology consult bc obtained pnor to ru!lllg out tors lOll of the t"t":stid:. Dr. L,d3~lt\:,1 further testll'ied that as a reSIdent', she did not have the authOrity to order diagnostic teS1s, such as ultr<.lsuurHb. Without the approval of the attendlllg physiCian. Dr. Chitbra testified to the cffect that she is licensed to practice medicine In Nevv York State ,llld is board certdled in pediatrics. In 2008, she vvas employed by Clmic,ll Practice Managemcnt Plan and the Stale Dr New York. She had admitting privileges at Stony Brook Univcrsity Hospital \vherc she was a pcdi,llnc hospitalist alld an assistant professor of pediatrics, With responsibility' for supervising pediatric residents. Dr Chitkara stated that she remembered the entire hospitalization of Chase NasCiL She was Ilrst notified :1bout Chase by phone at home by Dr. Lij i Daniel bet\vcen 10:00 and I 1:00 p.lll. on February 19, 200S. She stilted ,she did not go to the hospital to see the child after belllg contacted by Dr. DanIel. She testified that Dr DaIlH:::I ave g her the history, the results of the physical exam, the tests perf'armed, and her impression, and that Dr. Daniel recommended a course of treatment. She continued that Dr. Damel adv]sed her that the ultrasound showed there was Doppler now 111 both testicles, and thus, it was negative for testicular torsion, but that there were hypoecholc rcgions presenting concern for a malignancy. She added that the lJlt~ll1t's blood count, ESR, ,Illll alkaline phosphatase werc elevated, raising fLIJ1herconcern for mal1gnancy. She continued that Dr Daniel recommcnded consultation with hematology/oncology, and a repeat of the lab \Vork and ultrasound oflilc kIdney and bladder, to take place Oil the morning February 20th. She \Vas not advisee! that a urology consult I1MI been ordered. She did not recall spe,lking to any interns or residents about the lntlmt, but (lid speak with Dr-. McAllister and Ik LaBarca from the night team about two hours after she spoke With Dr. Daniel. Dr Chitkara lcstiticd that she went to the hospital to see the child on February' 20, 200g, and tlrst n::vle\ved hiS chart at about 9:30 a.m or 10;00 a.m., prior to seeing him. Seth Cohen was the senior resident. Dr. Chitkara stated that she revle\ved the laboratory tests and the ultrasound report from February 19, 100:5, ~llld that the chJ!cl's t~lthcr was there when she arnved. \J./hcn she examined tbe child, therc was 110crelll:Jstene reJle:\:. however, she did Ilot modify the dd'ferential dwgnoses set forth by Dr. LaBarca and Dr. McAllister, ,1111.1 agreed wllh their differential diagnoses. Although she obtained no eremasterrc rdkx \vhen examinmg lhe child and suspected testicular torsion, she did not add it to the differential and (lid not order another ultrasound ofthl' testicles as the ultrasound examination from the day bcfi)ft:;:was negative. She \Vas aware that rcstlllg for the' Ihl Ofposslbil1tles must be carned out until each potentJaI diagnosis \vas ruled III or out. Dr. Chitkara testillcd tlwI before she arnvcd ,It till' hospItaL testicular torsion held been ruled out She bellevcd Sdh Cohen ordered a urology consult sometIme 011February 20[1\. Dr Chitkara testitled that she left the hospItal at nbout 12:00 noon, ~l1ldwas therealkr advised by Seth Cohen that thc urology consull had been obtained and thatlhe chJ1cl was being taken to t'he openilll1g roOIll I(l;' surgery by the urologiSt, Robert Vv'asnick, M_D. She was also advised by Seth Cohell that the radiologiSt. HarriS Cohen, M.D., on February 20ti" reViewed the ultrasound from l"ebruary 1')110. and advised that It \Vas suspicious I(,n testicular torsion, and that Harns C:ollcn wanted a repeat ultrasound as he was conridcnt thin till' child had testicular torsion. Dr. Chitkara testified that she did not bclJevc the testlcu];lr torSion occurred alter thc ncgative ultr,lsOulld Oil February 19,1i She eontll1ued that with tcsticular torSion, thel'e IS a window Ul"tilllC in wllJl~h to trcat it. and the sooncr it is diagnosed, the better. She cunrilllled that she lidS sccn anywhere i"r()111 SIX to eIghteen hours to make the dl,lgllUS1S from the time It torses to correction to salvage the tcsticle. She (jdded that she did not order a radlOlluc.lIC!e scrotal image of the scrntulll In supen'lslllg the intcl"lls <1lJd reSidents, she (Ill! 110\make an)-.'changc:; or ,llteratiolls to tllelr plan oftreatlllcnt or the (Ii Ilcrelltlals, a" Sill: \\~IS [* 6] Nasca v Chitkam Index No. 0:)-44775 III <lgreemenL The defendant's expert pl1ysicJ:Jn, Joseph J. Abularrage, M.D. afllrms that he is a physicli.lll licensed 10 practice mec!Jcllle In Ne\v York State and is board certified in pediatrics and practices 111 that specI'llty. I-Ie sct c, and set fOl1h hIS opllllon wlthll1 a reasoll,lbk (orth the records anclmaterials reviewed In renclenng his opinion degree of Illc(1Jcal certall1ty that Dr Manbcth Chitkara comported with the standard in baSing her treatment deCISions upon lllforlllallOl1 relayed to her by other phYSicians at the hospital, including Dr. Dantel: 111 relYing UPOllthe interpretation of the February 19,2008 ultrasound by the radiologISt, Dr Moore: and III /{)J"lllulating ,I tre,llment plan with a medical team based upon thc evidence available to her, lI1cludmg an ultrasound possibly pOSitive for cancer but negative for tor~,ion, laboratory values indicating a cancerous or lllfectiolls process, and the Int;mt's ph)fslcal symptoms \vhich were consistent with leukemia or testicular CaJ"Clnoma. Dr. Abularrage set forth that aftcr the infant \Vi;lS tnaged at Stony Brook Hospital cmcrgency rool11 Whl'!"l' he was seen by an attendlllg pedlatncwJ1 covering the emergency room Dr. Daniel, \vlw ordered a testicular ultrasound. The radiologIst, Dr. Wilham Moore, reviev'ied the ultrasound, and Dr. Dame)'s worklIlg diagnOSIs oftesllcular torSIOn was ruled out. Tile findings of scattered hypoecholc areas werc conSIstent \-vith a canccrous or ll1tlal11111atoryprocess, and the broad differential diagnoses included leukemia and inflammatory/infectious processes. Dr. Ahularrage opines that it was within the accepted standard of practice for Dr. Daniel, a pcdwtrician, to rely' upon Dr. Moore's lllterpretation of the testicular ultrasound, as Dr. Moore was trained to (hagnose dIsease and eondltions with the use of internal imaging deVIces. Between 10:00 and I 1:00 p.I11., on February 19,2008, Dr. Chitkara \V3S notified by Dr. DanIel of the child's admission to her service. Pnor to tlwt tnne, Dr. Cbitkara had no involvement in the mfant's care and treall1lent. When Dr Damel relayed to Dr. ChItkara the radIOlogist's finding that there was no evidence of testicular torsion on the Doppler ultrasound, It was within the pediatric standard of care for her to rely on the negative imaglllg study and to formulate a plan to add testing and evaluation for cancerous and/or inflammatory conditions of the scrotum. Dr. Abularrage continues that tbe cremas1crlc reflex is a superfiCial reflex observed 111 males, \vhlCh. when el1c1tcd by lightly strokmg tbc mner portion of the thigh, causes the cremaster muscle to eOl1tnlct, \vhich III turn pulls lip the scrotum and testes on the side helllg stroked. He continued that thiS non-speclllc diagnosllc tool assIsts a praclItJoncr in recogniZing several testicular conditions, including testicular torSIon, howcvcL the reflex IS often absent in otherwise healthy infant males less than tlmty months old. Dr /\bularragc continued that the peciJatric standard of care for ,lJ] in!i,lTltyounger than this age requires perf<.ml1ance o1'al1 Internal imagIng study, such as allullrasound, to rule testIcular torsion In or out. Thus, staled Dr Abularrage, Dr Chitbra was within lhc pediatnc standard of carc III formulating a treatmcnt plan with her llledlcaltcam b;ls<:d upon the evidence avallahle, ll1eludlng an ultrasound negative j{)r testicular torsion. lie added thallhcrc W,l~ Ill) necd to request ;lI1y otllcr consultations, tests or diagnostic studies. fk Abul<Jrrage further stilted that when Dr. ChItkara eXalllll1ed the in!:mt un Fdmwry 2(yl" she docull1cnted that the Inf:ll1l displayed symptoms "SUSpICIOUS torsIOn" bur the Intcnl<.1lll1laglllg ultraSUlll1d for ",vith Dupplel" f{)utld 110torSIon, so Dr Chitkara suspceted a malignant or lIl11ammatory pruccss. \,V!JCllDr Ilarns ('ol1cn re-revicwed the February 19,2008 ultrasound film Interpreted by Dr. Moore, ill' determincd till' 111111 suspicious I'(wtcstlcular torslOIl and orden:d a repeat tesliculiJr ultrasound to rule uut testlcul,lr tUt'SI()1l was ThlS repeat ultrasound j{)lInd 110appreciable blood flow to the lell. testicle j'()1" hich Dr. Harns Cohen's w ·'/\lthough Dr. Abul,lrrage stated that he revlewcd the transcl"lpt oj"D!". Alex Mishi.lll, the same has !lOI bccn proVIded lU this court. [* 7] Nasca v Chitkara Index No. 08-44775 Page 7 ImpreSSion \Vas testicular torSIOI1. Thercafter, at I :15 p.m., Dr. Alex MislHul, under the service ofpcdwtJ"lc urologist Dr. Robert Wasl1lck, conducted a urological exam of the int~lI1L By 3:00 p.m., the infant was takcn In the openlting room for cxploratory surgery wherein it was ti.)ul1d that there was left testICular torsion v,iJth 110 viability of the left testlcle, necessitating Its removal. Dr. Abularrage opmcd that there was no sign or symptolll that Dr. Chitkara failed to appreciate, or test or consultation she failed to obtain, because the Illfll1t plalnrdhvas aln:ady III the process of undergoing tbe cItagnostic study which would lead to a diagnOSIs 0l'tors1On. Dr AhularrOlge statcd that by thc time Dr. Chitkara became personally lllvolved in the inJ~II1t's carc, no othcr tests hey'ond thc ultrasound alre<ldy ordered would have diagnosed the testicular torSIOn, and consequently, there W<I::: 110action or inactIOn on the part of Dr. Chitkara would could have changed the result. Dr. Lane Palmer, defendant's expert, affirms that he/she IS a physician licensed to practice medICII1C rn New York State and is certified in urology, w1th a subspecialty certification In pedlatnc urology. It is Dr. Palmer's opimon withlIl a reasonable degree ofmcdicaJ ccrtainty that Dr. Chitkara comrorled with each and every standard o1'mcclica! practice in her evaluation and treatment of the mfant plaintifC dnd that there is nothing that Dr. Chitkara dld or did nor do which caused, or exacerbated the infant plal1ltiff's testicular torslnl] and evcntual loss of' the testicle. Dr. Parker set rorth that testicular torsion occurs in lout of cvery 4,000 males from birth through puberty. The inciting event IS not known, but prescnts w1th symptoms of pain and swcllil1~ orthe scrotum. and acute onset. Dr. Palmer continued that testicular torsion requircs emcrgeney surgery wlthlI1 24 hours of onsct. After 24 hours, thc testicle is normally !lot salvageable and must be removed. Dr. Palmer further stated that there arc no long-term medical complications assOCIated with removal of <1testicle us hormonal Jtlnction is th~ same regardless of'having onc or two tcsticles, and the secondary sexual charactenstics seen in adolescence are exactly the same. Moreover, there is no medical eVidence aSsociatIng removal of a tcstlCle with decreascd fertility. Dr. Palmcr stated that given the ShOlt time to reverse the condition, testicular tOI-Slon is normally an cmergency department diagnosls rather than an ll1pntlcnr dIagnosIs. \Vhile the expert recitation ofwhell the redness of the scrotum \vas first noted, and thc parent's testllllony (liffe!", it IS clear that b:y 8:00 p.m. OIl February 18,2008, the illt~lllt had redness of his scrotum and smcl hIS "pee pee" hurt Dr. Palmer stated that on the mornrng of February 19, 200S, Dr. EIsenberg saw the llll-ilIlt and Immediately referred him to the emergency department due to a "S\VOlleIl, red, mildly tender lell testic1c with firm Illass in the left hemiserotoulll." Dr. Palmer opined that the int~lIH had torsion of the testick for at least eightecn hours prior to hiS presentation to the emergency room and more than twenty t()l]r hours prior to Dr. Chitkara's l11Vo]vlllent with the patient. Dr. Palmer continued that Dr. Moore's Interprctation urlhe ultnlsound 011February 19,2008 revealed no testicular torSion due to the demonstrable nO\-\! III the bilateral testicles \vlth color Doppkr Dr. Palmer continued that Dr. Harris Cohen rcvie\vcd that same ultrasound imagll1g ~llld opined th~It the ultrasound revcaled that thc intililt plaillti ff had kll testicular torsIOn at thc tII1le the test was conducted at 3 p.lll. on February 191h, whICh \vas III dlsagreemcnt with Dr. Moore"s determInatIon. Dr Palmcr continucd thatlhcre art inconsistcncles ti.JUl1dWithin Dr. Moore's interpretatloIl ,lllll that It IS highly unllkcl)' that there was dClllonstnlblc blood now to the dead tISSUC. Dr. Palmer further added II1(\t Instead, It appci.lI-Sthat the radiologist observed blood flow around the testes nHhcT tl1,111vlthin the subJcct testicle. DLll' (\1 \ tIlLSobscrvatlo11, the rmltologlst specillcally, but incorrectly, t()l[nd no eVldcnce ot'rorsioll. 01-. Palmer l'oncludcd that by the time Dr. Chitkara W,lS 1nl"lxmecl of the l('sticul,lr torslUll, that the testIClc could not havc becn saved; it was within thc standard of carc !()r Dr Chitk,lr(1 to rely Ull thc r,ldlolugic;iI IIllerpi"el;\tlon by Dr. MoOl"c ill his rnterpn:tatlOn orthe ultrasound; lhat a proper trcatmcnt plan ,vas j(mmll~Hl'd by the medical tcam consisting orDr_ Chitkara, Dr. L.aBarca and Dr. McAllisrcr; thcre IS no 'ilgn or SYlllploln that Dr. ChItkara hlilcd to appn::clate or test or consulUltloll she t~lilcd to Obt,lI11;thcre \-vas no act or InactiOIl (111 the part of Dr. Chitkar,l which could have changed the outcomc; that Dr. Chitkara properly rcllcd upon the [* 8] NasC,,1v Chitkara Index No. OS-44775 Page 8 llliormCltioll provided by Dr. Daniel, lncludmg the results of the ullrasound; and that the int~lIlt plailltlfflw~ long-term medical complIcations associated with the removal of his testicle. Based upon the forcgoing, It is detenlllned that Dr. Chitkara has demonstrated sUlllnwry .Judgment dl~lllissmg the complaint as a~serted agall1st her. Il() prima hlcie Clltltlcl1ll'l1i 1(1 To rebut a prima h1cle showing of entitlement to an order granting summary Judgment by the deltl1\blll. the plaintilT must demonstrate the eXIstence of a tnable issue of fact by submitting an exrert's affidaVit ol'mel'lt altestlllg to a deViation or departure from accepted practice, and eontailllllg an OpllllOJ1that the defendant's act:-; or OITllSSlonswere a competent-producmg cause of the inj uries of the plainti IT(see, Lff. . ¢ ¢ '1litz v Beth Israel Med. Ctr~J(illgs Highwuy !Jil'., 7 AD3d 759, 776 NYS2d 907 [2d Dept 20041; f)oIJ/(lr{ulzki v Gleu Cove OB/GYN Assocs., 142 AD2d 282, 660 NYS2c1739 [2d Dcpt 1997J). The plaintiff's expert IS a physicwll licensed to practice medicine in New York, is board certified In pediatrics, has set forth the records and matenals revIewed and ormes wlthm a reasonable degree of medical certainty that Dr. Chitkara dcpal1ed from good and accepted standards of medical care and treatment 111 tTcatlng the II1t:1I1t luinti1T The plamtiff's expert stated that on February 18,2008, Chase Nasca was examined at the p office orthe pediatrician, David J. EJsenberg, at which timc there werc no abnonml! findings oftbe geniTOUrinary system, On February 19,2008, when the mfant presented to the emergency department at StOll).' Brook Ul1lversity (-!ospltal at 2: 14 p.l11., It was suspected that he was suffering from tcsticular torSIOn, an emergency in which blood supply is cut off from the testicle and sUIToundll1g stnlctures. The plallltiff's c.'pen continued that because the diagnosis and treatment of testicular torsIon needs to be made promptly', and the passage of the willdow of oppoltunitj/ decreases the chance of testicle viability, that early urological consultation IS necessary to dcten11lne if the testicle can be manually detorsed and \vhether there IS need 1'01· surgery to detorsc the testicle. DiagnOSIs ofa testIcular torsion requires physical cxalllillation and ultrasound examination. The plaintitrs c;.:pert stated tlJat an untimed physical exalllmation by a third year resident was perform cd 111 emergency room, revealing scrotal swelling and redness, however, there was no 111dicatiol1in the thc record that the Inh1l1t's ercmastenc rctlex was checked as absence of the reflex IS assocwtcd with tcsticul~ll· lmsioll. At 2:25 )).111., Dr Annamma Daniel ordered an ultrasound of the testicles to determine blood 110\\! through the testide. Pl<lIntiffs expert continued that there was no request fllr a urology consult \vhile the ini:lIl1 was In the emergency department 011February 19, 20mL and that the urology consult was not ordered untIl 10.15 ,un. on February 20, 2(0)3, t\velve hours after the in/TInt initially presented to the emergency dcpartmcnt It was further statcd tbat at 4:05 when Dr. Damel completed the emergency department encounter and lrcatll1elll form, that thcre was 110reference to the findings of the testicular ultrasound, which was not slgnt::cl by the attending rndlologist, William Moore, until 4: 1)3 p.lll., and whICh inCidentally shO\\!cd no evidence or testicul'll· torsion. /\ddiltonally, there was 110Inc!Jcation that Dr. Daniel checked the inh1l1t for crcmasll.'l"Ic rellcx The infant was adl11lttcd to Dr. Chitkanl's pediatric service on I I north <I( 11·20 p.I11., and at 12: I 5 a.l11.0[1 l'l'bru,[ry lO, lOOg, Dr. Shane McAllister conducted a comprehensive lllitial inpatlcnt t::valuation whIch mc!lc,llcd tl1,l1 thcre \Vas no cremasteric reilcx present, represcnting a new findl1lg which \vas not Iloted earlier III the record Dr. McA1Jistcl· further noted that the lnLmt was ".Jumpy" with testicular e;.:all1, Idll1lore tl1,[11 nghL ,till! t!Jal he had endorsed pain \\11th p,l!pation which was also ~lnew find1l1g 110tprevlULisly noted prior to his e.\alllinatltlil The plaintiffs expcrt 0pliled that while testicular torsion had been prevloll~ly ruled out by 1I1tri.lSOUilli Oil February 19, 200K, It :;hould have been reconsidered as part oflhe dl1lerential diagnOSIs based Oil the newly ]loted absellt cremasteric reflex and newly noted pain, and the l;lilurc to Include testicular lorslon as;l part nrt!ll' ddrcrcntial dIagnOSIs by Dr. Dame!, Dr. Lal3arc(I, Dr. McAllIster, Dr Chitkara, ,me! Dr Selh Cohen was;1 [* 9] Nasca v Chitkara Index No. OS-44775 Page 9 departure from the standard of care. When Dr McAllister noted that there was no crel1lastenc rellcx ,lTldnewly noted pain, a urologIcal consultation and further diagnostic studies were necessary, howeveL no further diagnostic studIes 'were ordered untIl 1 1.30 Cl.1l1. February 20, 2008 by tbe resIdent Seth Cohen, nearly on twelve hours lakr. The ultrasound \,vas not pertormed until 12: I5 p_lll. and W8S nor read until 2.55 p.1ll. Thus. llplllCd the pLlllltiffs expert, the t~lJ1urc to timely order a repeat ultrasound was a ckpart"ure !l'om the sldnd;lrd 1.11' care by Dr Daniel, Dr. LaBarca, Dr McAlhster, Dr. Seth Cohen, and Dr. Chitkara_ The plaintl1'fs expert further opined that It was a departure from the standard of care f()r Dr. DanieL Dr LaBarca, Dr. McAllIster, Dr. Seth Cohen, and Dr. Cllltkara to timely order a urological consult. Thc plalntll"l-s expert continued that Dr. Chitkara did not order a urology consult Ulltl1 10: 15 a.m. 011 February 20, 2{)()8 Ilcdrl)' ten hours after Dr. McAllister first noted the absence ofthc cremateric rel1cx. The plmntJl'fs expert further opined that the ll1f<lntplall1tiffw'as not adequately monitored as there were gaps In physician cntnes froIl14:()~ p.ll1 until II :20 p.m. on February 19, 2008, and that there was a departure 1i·ol11 the standard of carc 111 1~\1IIl\!!o t chart such exam1l1ations_ The plall1tirr's expert concluded that these hlilures were the substantlal contributIng t~lctors related to the Chase Nasca's loss of his left testicle. Based upon the foregoing, It is determined that the plallltiffhas raised faetuallsslles to preclude summary judgment on both departures Ii-om the accepted standards of care and treatment, and causation the mfant's loss of his left testicle. Accordmgly, motion (004) by defendant Maribeth Chitkara, M.D. fiJr summary Judgmcntlll relating her Llvor IS dcnied. Dated // III/etA,} 8, :l01:(., . ~~ ~ ----------+ j / .// Q ~ / FINAL DISPOSITION ~ - ,I%~' J,S)'''". ./ NO~INAL DISPOSITION -----------
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