Brinkley v Nassau Health Care Corp.
2012 NY Slip Op 30961(U)
April 3, 2012
Supreme Court, Nassau County
Docket Number: 8532/09
Judge: Michele M. Woodard
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This opinion is uncorrected and not selected for official
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
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MICHELE M. WOODARD
TRIAL/IAS Par 8
Motion Seq. Nos. : 01 & 02
NASSAU HEALTH CARE CORPORATION , NASSAU
UNIVERSITY MEDICAL CENTER , GOOD SAMARITAN
HOSPITAL MEDICAL CENTER , LAMBROS ANGUS, M.
SASHA SOTIROVIC , M. , and MARIA SPIZZIRRI , M.
DECISION AND ORDER
Papers Read on this Motion:
Defendant Good Samaritan Hospital Medical Center s 01
Notice of Motion
Defendants Nassau Health Care Corporation ,
University Medical Center , Lambros Angus , M.
Tariz Kelker , M. , Yuriy Zhurov , M. , and Maria
Spizzirri , M. s Notice of Motion
Plaintiff s Affirmation in Opposition
Defendant Good Samaritan Hospital Medical Center s xx
Defendants Nassau Health Care Corporation , Nassau xx
University Medical Center , Lambros Angus , M.
Tariz Kelker , M. , Yuriy Zhurov , M. , and Maria
Spizzirri , M. s Reply Affrmation
In motion sequence number one , defendant Good Samaritan Hospital Medical Center moves for
an order pursuant to CPLR 93212 granting it summar judgment dismissing the complaint against it.
In motion sequence number two , defendants Nassau Health Care Corporation
Health Care Corporation and Nassau University Medical Center , Lambros Angus , M.
Sotirovic , M.
, Tariq Kelker , M.
, Yuriy Zhurov , M. D. and Maria Spizzirri , M. D. move for an order
pursuant to CPLR 93212 granting them summary judgment dismissing the complaint against them.
The plaintiff in this action seeks to recover damages for medical malpractice and lack of
informed consent. She underwent gastric bypass surgery at Nassau University Medical Center
NUMC" ) by the defendant Lambros Angus , M. D. on July 23 2008 and she was discharged on July
2008. On the morning of July 29 2008 , she was transported to Good Samaritan Hospital via
ambulance because she was suffering from severe abdominal pain.
She was treated at Good Samaritan
Hospital for eight hours. While there , she was examined and tests were conducted including a CT scan
of her abdomen. Dr. Cussatti , a bariatric surgeon at Good Samaritan Hospital , conducted a surgical
consult via telephone. His primary differential diagnosis included post-operative pain along with
anxiety of recent surgery, some form of intra-abdominal process , infection or inflammation. The
possibilty of an anastomotic leak was also considered. Dr. Cussatti' s recommendations were fluid
resuscitation and transfer to NUMC as that was where the surgery had been performed. A 500 ml IV
bolus of normal saline was given on July 29 at approximately 11 :20 a.
While at Good Samaritan, the plaintiff developed a fever and her abdominal pain worsened.
Her temperature went from normal to 102. 6; her pulse rate increased to l30; and , her oxygen saturation
dropped from 96% to 90%. Upon determining that a possible bowel perforation could not be ruled out
Dr. Cussatti conferred with Dr. Angus and together they concluded that in light of her stable condition
and Dr. Angus ' history of treating her , Brinkley should be transferred to NUMC via ambulance. Dr.
Zimmerman signed the emergency department inter- hospital transfer form transferring her to NUMC.
The plaintiff arrived at NUMC at 8: 1 0 p. m. on July 29 hemo- dynamically stable. Dr. Ting
attended to her in the Emergency Room. Upon admission , she had complaints of fever , sweating, chest
pressure , shortness of breath and a productive cough with brown phlegm. She was in mild respiratory
distress and had abdominal tenderness. Because her oxygen saturation was 84% by pulse oximetry,
was given 100% oxygen via non-rebreather mask and her oxygen saturation improved to 90%. The
plaintiff was noted to be in acute distress. Her incision from the bypass procedure had serious drainage
and her breath sounds bilaterally were decreased in the lower fields. Her abdomen was soft, diffuse
distended and tender in the lower part of the wound. Blood tests and urinalysis were performed and her
white blood cell count at the time was 14. 5. She was hydrated with IV infusion of normal saline at 100
ccs per hour via two peripheral lines. She was given IV Flagyl at 8:30 and Levaquin at 9:55 p. m. on
July 29 . Dr. Ting s differential diagnosis included abdominal pain generalized , obstruction of the
bowel and a perforation of the intestines.
Dr. Zhurov , a resident at NUMC , saw the plaintiff at 10:00 p. m. on July 29 as did Dr. Angus.
A chest x-ray was done at 10:01 p. m. which revealed pneumoperitoneum , possibly post-operative , as a
result of which CT scans of the lower extremities , chest , abdomen and pelvis were done. Radiology
reports indicated moderate pneumoperitoneum and complex fluid in the left upper quadrant as well as
the pelvis , possibly post-operative. An anastomotic leak could not be ruled out and bibasilar atelectasis
Ms. Brinkley was admitted to the surgical intensive care unit at midnight on the 29th
into the 30
for sepsis and possible pneumonia under the care of Dr. Angus. She was given IV Zosyn and was
receiving IV lactated ringers at 250 ccs per hour and was maintained on 40% oxygen via face mask.
Dr. Angus informed Ms. Brinkley of the CT scan findings and recommended surgical
intervention to investigate a possible bowel leak. Dr. Angus ' differential diagnosis at the time that the
surgery was recommended included leakage , possible pneumonia and possible pulmonar embolism.
Surgery was initially refused despite the CT scan findings, which although highly suggestive of a leak
were not conclusive. Ms. Brinkley indicated that she did not want additional surgery unless Dr. Angus
could demonstrate without question that there was leakage in the abdomen.
The chief surgical resident Deborah Solnick , M.
s note indicated a small opening along the
aspect of Brinkley s wound with serosanguinous drainage and the gastrostomy tube drained less that
100 ccs of bilious fluid.
The plaintiff was sent for an upper GI series at 1 :30 a. m.
on July 30
An anastomotic leak was confirmed via an upper Gr series which was completed by 2:05 a.
on July 30 . The tests showed free extravasation of oral contrast from the proximal gastric bypass
anastomotic site. Since the plaintiff had reported that the pain had started in the morning of the 29
based upon the plaintiffs symptomatology and his doctor s training, Dr. Angus ' opined that the
anastomotic leak started when the patient was at home during the morning of the 29 when she
experienced a pop and abdominal pain. Once the upper GI series was completed , Dr. Angus advised
Ms. Brinkley that the upper GI series documented an anastomotic leak and advised her that she required
the exploratory laparotomy. However , because she was dehydrated , Ms. Brinkley needed to be
resuscitated prior to subjecting her to the risk of anesthesia. At 5:00 a.
, the surgical resident Dr.
Zhurov noted that the plaintiff had dyspnea with decreased breath sounds and diffuse abdominal
distention. Her oxygen saturation was 94% on 60% oxygen and 300 ccs of biliar
fluid had drained
from the gastrostomy tube. The plan was to continue IV fluids and antibiotic therapy, to monitor the
heart rate , to perform repeat abdominal exams and to provide DVT and Gr prophylaxis.
The plaintiff was returned to the operating room on July 30 , 2008 at 8:00 a. m. for repair of the
gastrojejunostomy leakage under general anesthesia. She underwent exploratory laparotomy, lysis of
adhesions and repair of the anastomosis by Dr. Angus with the assistance of surgical resident Dr.
The operative report indicates that dehiscence of the gastrojejunostomy was seen in the upper
epigastric region with significant inflammation of the tissues. Cultures of the abdominal fluid were
collected. After the procedure was performed , Methylene blue dye was used to test for leakage and no
gross leakage was noted. A tongue of the omentum was placed over the repair and secured. Four
Jackson- Pratt drains were placed in the upper abdomen , the abdomen was closed and an abdominal
binder was applied. A chest x-ray and CT scan of the chest, abdomen , pelvis and lower extremities were
ordered by Dr. Ting.
During the surgical procedure , Dr. Angus determined that there had been a separation of the
attachment of the small intestine to the stomach that had been done during the gastric bypass procedure.
This was noted to be an acute perforation. The anterior surface of the connection was separated.
Complications developed and the plaintiff remained at NUMC until September 17 2008 during
which time she was treated for sepsis , Adult Respiratory Syndrome and Psedomonas pneumonis. These
conditions necessitated prolonged support including a tracheostomy, the need for a PIC line for IV
access , percutaneous drainage of collections of intra-abdominal fluid , fungemia, bacteria, and a
gastrostomy tube leak. The defendants Drs. Sotirovic , Kelker , Zhurov and Spizzirri were all residents
at NUMC who aided Dr. Angus in various capacities in his care of the plaintiff during her
All of the defendants seek summary judgment dismissing the complaint against them.
On a motion for summary judgment pursuant to CPLR 93212 , the proponent must make a
showing of entitlement to judgment as a matter of law , tendering suffcient evidence to
demonstrate the absence of any material issues of fact."
afJd as mod.
4 NY3d 627 (2005),
lO AD3d 70 , 74 (2d
68 NY2d 320 324
New York Univ. Med. Ctr. 64 NY2d 851 853 (1985). " Failure to make such
showing requires a denial of the motion , regardless of the suffciency of the opposing papers.
Med. Ctr. , supra.
at p. 74;
Prospect Hosp. ,
New York Univ.
Once the movant' s burden is met , the burden shifts to the opposing party to establish
the existence of a material issue of fact.
Prospect Hosp., supra at p. 324. The evidence
presented by the opponents of summary judgment must be accepted as true and they must be given the
benefit of every reasonable inference.
Community Housing Management Corp. , 34
Secofv Greens Condominium 158 AD2d 591 (2d Dept 1990).
521 (2d Dept 2006), citing
The essential elements of medical malpractice are (1) a deviation or departure from accepted
medical practice , and (2) evidence that such deparure was a proximate cause of injury (quotations
(2d Dept 2008);
Monsouri 302 AD2d 420,
Perel 51 AD3d 757 , 758
see also, Roca
91 AD3d 817 (2d Dept 2012);
421 (2d Dept 2008);
AD3d 743 , 745 (2d Dept 2007). " Thus , (o)n a motion for summar judgment dismissing the complaint
in a medical malpractice action , the 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.
at p. 817;
AD3d 645 , (2d Dept 2006);
see also, Roca
Perel, supra at p. 458-
Felder , 33
Streiter 83 AD3d 18, 24 (2d Dept 2011). " Once a defendant
physician has made such a showing, the burden shifts to the plaintiff to ' submit evidentiar facts or
materials to rebut the
triable issue of fact. ' "
Hosp. 68 NY2d 320 , 324 (1986);
showing by the defendant. . . so as to demonstrate the existence of a
91 AD3d 748 (2d Dept 2012), quoting
see , Stukas
Streiter, supra at p. 24. " General allegations that are
conclusory and unsupported by competent evidence tending to establish the essential elements of
medical malpractice are insufficient to defeat a defendant' s motion for summary judgment (citations
In determining a motion for summary judgment , the court must
Quinn , supra.
view the evidence in the light most favorable to the nonmoving party.
634 (2d Dept 2012), citing
Streiter , supra at p. 23. A plaintiff's expert must address all of the
pivotal facts relied upon by the defendant's expert in order to establish the existence of a material issue
see also , Dimitri
36 AD3d 791 (2d Dept 2007);
Monsouri 302 AD2d 420
(2d Dept 2003).
A hospital canot be held vicariously liable for the malpractice of a private attending doctor.
Sita vLong Island Jewish Medical Center 22 AD3d 473 (2d Dept 2005). In addition
supervised medical personnel are not exercising their independent medical judgment , they canot
held liable for medical malpractice unless the directions from the supervising superior or doctor so
greatly deviates from normal medical practice that they should be held liable for failing to intervene.
83 AD3d 632 (2d Dept 2011), citing
54 AD3d 656 (2d Dept 2008);
Andaz 8 AD3d 470 (2d Dept 2004);
Sorkin 41 AD3d 278 (2d Dept 2007).
" To establish a cause of action (to recover damages) for malpractice based
on lack of informed consent , plaintiff must prove: (1) that the person providing the
professional treatment failed to disclose alternatives thereto and failed to inform
the patient of reasonably foreseeable risks associated with the treatment , and the
alternatives , that a reasonable medical practitioner would have disclosed in the
same circumstances , (2) that a reasonably prudent patient in the same position
would not have undergone the treatment ifhe or she had been fully informed , and
(3) that the lack of informed consent is a proximate cause of the injury.
Rajadhyax 268 AD2d 745 (3d Dept 2000), citing Public Health Law 9 2805- d;
265 AD2d 619 620 (3d Dept 1999). " (IJt (is) the duty of the injured plaintiffs
not (NUMCJ to obtain the plaintiff's informed consent."
supra at p. 743 , citing Public Health Law 9 2805-
Long Island Jewish Medical Center
Wenger 19 NY2d 407 417 (1967).
In support of its motion, Good Samaritan Hospital has submitted the affirmation of Dr.
Robert H. Leviton. He is Board Certified in Emergency and Family Medicine. Having reviewed
the pertinent medical and legal records , he opines to a reasonable degree of medical certainly that
the care provided the plaintiff at Good Samaritan Hospital was reasonable and within the standard
of care and that nothing Good Samaritan Hospital' s staff did or failed to do proximately caused
the plaintiffs injuries. More specifically, he notes that Good Samaritan Hospital' s staff properly
evaluated the plaintiff; provided IV fluids and treated her pain; and , conducted tests including a
CT iscan of her abdomen which returned with evidence of intra-abdominal free air , mild
abdominal and pelvic ascites which indicated that a perforation of the bowel could not be ruled
out. He opines that a surgical consult with Dr. Cussati was appropriately performed and he
appropriately recommended the plaintiffs
NUMC. He notes that Dr. Angus was also
appropriately consulted with and he concurred. He furher notes that prior to transferring her , Dr.
Zimmerman evaluated the plaintiff and found her to be hemodynamically stable and he
appropriately concluded " within reasonable medical probability, no material deterioration to the
patient (was) likely to result from the transfer. " Dr. Leviton notes that the transport went
smoothly and that the plaintiff arrived at NUMC in stable condition. In sum , Dr. Leviton opines
the eight hours that it took to examine and evaluate the patient , perform numerous tests on
her , wait for her to drink contrast material in order to have the CT scan performed (it takes two
hours after drinking the contrast before the study can be done), come to a diagnosis , consult a
surgeon , communicate with her own doctor and get her safely transferred to NUMC was
absolutely appropriate , and had no bearing on the timing of her surgery once she was returned to
The defendant Good Samaritan Hospital has established its entitlement to summary
judgment thereby shifting the burden to the plaintiff to establish the existence of a material issue
In support of their motion , NUMC and Drs. Angus , Sotirovic, Kelker and Spizzirri
NUMC defendants ) have submitted the affidavit of Dr. Thomas Magnuson , a Board Certified
Surgeon. Having reviewed the pertinent legal and medical records , he opines to a reasonable
degree of medical certainty that the NUMC defendants did not deviate from the accepted standard
of care in their care of the plaintiff and that in any event , their care of her was not the proximate
cause of her gastrointestinal leak and dehiscence of the gastrojejunostomy anastomosis.
As for the plaintiff s consent , Dr. Magnuson notes that on her risk advisory sheet which
she acknowledged at her examination- before- trial having signed on July 15 , 2008 , the list of
potential risks included a leak from stomach , intestine or other surgical areas that could cause
peritonitis; abscess formation; fistula; sepsis; abdominal abscess or gaut; injury to esophagus
stomach , spleen , liver or other organs which could necessitate additional surgery or treatment;
wound complications such as infection , seroma, hematoma , dehiscence or hernia of incision
bleeding or hemorrhage from any surgical area which could result in the need for transfusion or
other treatment; respiratory depression; death; ulcer formation which can result in inflammation
scaring, bleeding or perforation; and ,
procedures, such as re-operation or endoscopy.
Similarly, he notes that on the written obesity surgery patient examination which the
plaintiff also acknowledged at her examination- before- trial having signed on June 16 , 2008, the
plaintiff stated that it was false that " staple or suture lines never leak or result in infection or
communication between the stomach or intestine in the skin ; that it was true that it was possible
that she " could
require intensive care ,
short or long- term , in the hospital after gastric bypass
surgery ; and , likewise , that it was true that " re-operation is sometimes necessary, due to bleeding,
hernias , ulceration , bursting of stitches or staples , leakage or blockage of the intestines or stomach
and from other causes. "
acknowledged that it was false that gastric bypass surgery is not
a very serious or risky procedure. In addition , reflecting on both the plaintiff and Dr. Angus
testimony at their examinations- before- trial , Dr. Magnuson furher notes that all of the risks were
fully explained to the plaintiff.
Dr. Magnuson notes that the gastric bypass surgery for which the plaintiff s informed
consent was obtained was performed on July 23 , 2008 by Dr. Angus with resident surgeons
defendants Dr. Sotirovic and Dr. Kelker assisting. He notes that while her white blood court
WBC" ) was elevated post-operatively, it continued to decline up to July 26
. He also notes that
an upper Gr series performed on July 25 ruled out any leaks from anastomosis sites. He notes
that while she had a fever of 102.4 and high arterial blood oxygen levels on July 25 , at discharge
on July 28 h, her temperature was normal and her pulse rate was within normal limits. Similarly,
while serous drainage from the abdominal wound was noted during the night of July 26 , the
incision opening was packed in the morning and her diet and ambulatory skils
appropriately. More specifically, Dr. Magnuson notes that the plaintiff was ambulatory with a
steady gait , tolerating a full liquid diet and had positive bowel signs with an abdominal binder in
place on July 28 at 2:00 p. m.. He opines that despite surgical incision infection , there was no
evidence of intra-abdominal complications and mild serous fluid drainage from the incision with
eryhema without tenderness on July 27 indicated that the infection of the surgical incision was
resolving. Dr. Magnuson notes that other than that , the plaintiff did not evidence any additional
complications at discharge on the 29 of July: She was stable , her heart rate was normal and she
As for the plaintiffs transfer from Good Samaritan Hospital to NUMC , Dr. Magnuson
notes that Dr. Angus reliance on the information provided him by the staff at Good Samaritan
Hospital regarding her suitability for transfer was appropriate.
Dr. Manguson carefully details the care provided by the NUMC defendants upon the
plaintiffs retur there ,
much of which is no longer at issue here. What the plaintiff continues to
maintain is that the need for surgery was not diagnosed in a timely fashion , which lead to an
unacceptable delay and ensuing consequences which could have been avoided had a timely
diagnosis been made.
Dr. Magnuson opines that at no point before the surgery was undertaken on July 30 did it
become an emergency.
In sum , Dr. Magnuson notes that Dr. Angus advised the plaintiff of the risks attendant to
the surgery, in particular the possibility of a leak at the site of the anastomosis as well as an
infection and the possibility of dehiscence of the wound and a breakdown of the connection
between the small intestine and the stomach that was formed during the surgery. He also notes
that a battery of tests were done to establish that the plaintiff was a proper candidate for the
surgery and a consent form was executed , as was a risk advisory sheet and informative
questionnaire. Thus , Dr. Magnuson opines that the plaintiff s lack of informed consent claim falls
Additionally, Dr. Manguson opines to a reasonable degree of medical certainty that with
the assistance of hospital staff, Dr. Angus properly performed the July 23 gastric bypass surgery
and checked the anastomosis with Methylene dye which revealed no leak.
As for her discharge on July 28 h, Dr. Manguson notes that despite the fever of July 25
and an infection at the site of the incision , there was no evidence of intra-abdominal
complications during her hospitalization from July 23 to July 28 , 2008. He notes that an upper GI
series was in fact performed to confirm that there was no leakage. Blood cultures were negative
plaintiffs WBC declined and the incision had no eryhema and was not tender indicating that the
infection of the incision was resolving. He further notes that the plaintiffs temperature and
rate were normal and her WBC continued to decline when she was discharged. He notes that
Augmentin was prescribed to continue to treat the infection and that at the time of Brinkley
discharge , other than the " superficial" incision infection , there was no evidence of leakage from
the anastomosis or any other intra-abdominal complications of the surgery. He opines that the
sero-sanguinis wound drainage from the incision site was not indicative of a gastrajejunal
anastomotic leak and was properly treated with antibiotics up to and after her July 28th discharge.
He therefore opines that the plaintiff was stable and appropriately discharged on July 28
Dr. Magnuson further opines that even if the plaintiff had not been discharged on July 28
the course of events would have been the same. He opines "that the care and treatment required
during the second hospitalization was a product of an anastomotic leak which arose on the
morning of July 29 2008 . . . (and) (h)ad the (plaintiff) remained in the hospital , she would have
undergone the same course of treatment , would have suffered the same complications from the
anastomotic leak , which were appreciated during the second admission at (NUMC). " He also
opines that the time that elapsed from the plaintiff s arrival on July 29 at 8: 10 p. m. until the time
of surgery at 8:00 a. m. on July 30 had no effect whatsoever on the plaintiff. In other words , even
if the operation had been done earlier, the sequence of events would have been the same. Dr.
Manguson similarly opines that the July 30 laparotomy was properly performed.
More specifically, Dr. Magnuson opines that the plaintiff was properly evaluated and
diagnosed upon her return to NUMC on July 29 and that the gastrojejunal anastomatic leak was
properly treated. He notes the plaintiff s resistance to surgery and insistence on additional
confirming tests. He attributes the delay in operating from 2:05 a. m. until 8:00 a. m. to the need to
fully resuscitate the plaintiff from dehydration with IV fluids and antibiotics in order to stabilize
her for general anesthesia. He opines that had this not been done , the plaintiff would have been at
an increased risk of complications from surgery including death. He opines that in any event, had
the surgery been done at 2:00 a.
, the outcome would have been the same: No additional injuries
occured on account ofthe delay. He also opines that her post-surgical care conformed to medical
standards. More specifically, a series of CT scans , x-rays and upper GI series established that the
leak was stabilized as was the plaintiff rendering her suitable for discharge on September
Upon review of Dr. Angus ' Curiculum Vitae and the other pertinent records , Dr.
Manguson opines that there is no evidence that NUMC granted privileges or allowed unqualified
doctors to perform there.
NUMC and Drs. Angus , Sotirovic , Kelker , Zhurov and Spizzirri have also established
their entitlement to summary judgment dismissing the complaint against them thereby shifting the
burden to the plaintiff to establish the existence of a material issue of fact.
The plaintiff has submitted the affidavit of Dr. Peter J. Wilko He is Board Certified in
General and Colon & Rectal Surgery. Having reviewed the pertinent legal and medical records
he opines to a reasonable degree of medical certainty that the defendants departed from good and
accepted medical practice in their care of the plaintiff as follows:
Dr. Wilk notes that on July 25 , 2008 , two days post-op, the plaintiff developed a urinary
tract infection and ran a fever of 101.4 which spiked to 102. 9 and her white blood count (WBC)
was elevated at 15. 7.
Her incision was
open and draining. However , an upper GI series revealed
no evidence of an obstruction or leak. The following day, July 26 , Brinkley continued to run a
low temperature of 100.2 and her WBC was 13. 8. He represents that when the dressing over her
surgical woundwas removed , a " copious " amount of drainage was observed. On July 27 h, her
maximum temperature was 99. 9 and she was discharged on July 28 and instructed to follow up
with the surgical clinic in a week. Dr. Wilk notes that upon arrival at Good Samaritan Hospital in
the morning of July 29 when she was seen by Dr. Zimmerman , her oxygen saturation was 94%
on room air , and her temperature was 98. 8. The drain in her left upper abdomen was noted to
have bilious drainage. Dr. Zimmerman s differential diagnosis was bowel obstruction
gastroparesis and surgical infection but at his deposition , he testified that he had additional
differential diagnoses that were not written in the hospital record , including a perforation of the GI
tract , and a disconnection of anastomosis
a connection between the intestine and the stomach
which was formed during Dr. Angus ' gastric bypass procedure. Her vital signs were checked at
11 :24 a.
, 2: 17 p. m.
increased from 98. 8
and 6:38 p. m. and her hear rate increased from 104 to 130 , her temperature
, her respirations increased from 20 to 28/minute , her oxygen
saturation worsened from 94% to 84% , but increased to 90% when oxygen was administered and
her blood pressure fell from
Dr. Zimmerman ordered blood tests , a urinalysis , a
CT scan and a chest x-ray. The plaintiffs WBC was 14. , the urinalysis was negative and her
chest x-ray showed ateletic changes. The CT scan showed the presence of intra-abdominal free
au. Dr. Zimmerman called upon Dr. Cussati for a surgical consult via telephone who declined to
examine the plaintiff himself and instead recommended that she be transferred to NUMC.
Dr. Wilk notes that the plaintiff arrived at NUMC on July 29 , 2008 with a temperature of
102 and a pulse oximeter reading of 84% oxygen saturation but she reacted positively when given
oxygen. A CT scan of her abdomen revealed mild abdominal and pelvic ascites with post-
operative changes. She was put on antibiotics and admitted to the intensive care unit. An upper
GI series revealed extravasation of contrast from the proximal gastric anastamosis at about 2:05
m. on July 30 . IV fluids and monitoring were recommended. According to the plaintiff's
hospital record , ICU resident Dr. Spizzirri discussed the results of the upper GI with a surgical
resident who recommended a follow-up CT scan and upper GI series. Ultimately Dr. Angus
recommended surgery at 6:30 a. moo Surgery commenced at approximately 8:00 a. moo
surgery, Dr. Angus noted a near complete dehiscence of the staple line of the gastrojejunostomy
which he repaired and tested with methylene blue and no leaks were noted. Dr.
Wilk notes that
the plaintiff s ensuring medical course was plagued by many complications including sepsis
Adult Respiratory Syndrome and Psedomonas pneumonis. He opines that conditions
prolonged support including a tracheostomy, the need for PIC line for IV access , percutaneous
drainage of collections of intra-abdominal fluid , fungemia , bacteria , and a gastrostomy tube leak.
Dr. Wilk opines to a reasonable degree of medical certainty that Dr. Angus and the
hospital departed from good and accepted medical practice by discharging the plaintiff on July
because she had developed a urinary tract infection , her WBC was elevated and when the
abdominal dressing was removed on July 26 h, there was " copious " drainage from the wound
which he opines is called " dehiscence
the paring of sutured lips of a surgical wound , and
is evidence that there may be an intra-abdominal leak " the cause of which " may have been
related not to the urinar tract infection , (but) rather may have been related to a failure of the
stomach to heal properly in the face of infection or to technical errors in constructing the
anastamosis that did not show up on the GI series. "
the copiously draining wound ,
Dr. Wilk opines that
In light of the
evidence of an infection and
the plaintiff was discharged from NUMC
prematurely. He opines that the diagnosis of anastomotic leak could have been made as early
July 26 h, and Brinkley should not have been discharged when she was.
Dr. Wilk also faults Good Samaritan Hospital's treatment of the plaintiff on account ofthe
delay of " operatic
intervention. " He opines
that Good Samaritan Hospital failed to recognize that
free air revealed in a CT scan one week after surgery was evidence of an intra-abdominal problem
paricularly since it was coupled with " fluid in the abdominal cavity. " He also faults Good
Samaritan Hospital for not recognizing that the plaintiff s hemodynamic status was worsening
there , as evidenced by her increasing hear and respiratory rates despite intravenous resuscitation
her worsening oxygen saturation and development of a fever. He opines that emergency surgery
was needed; not a transfer for which he opines that the plaintiff was not well suited.
Finally, Dr. Wilk faults NUMC for the delay in performing surgery upon her return there
from 2:00 a. m. on July 30 until 8:00 a. m. that day. As for the harm caused by all of these acts
and omissions, Dr. Wilk opines as follows:
An anastomotic leak under the circumstances of this case is a surgical
emergency, and time is of the essence. Every hour that passes with such a
leak makes the recovery for the patient that much harder. . . . (T)he delays
here were significant factors in causing significant complications in this
patient , including sepsis , Adult Respiratory Syndrome , Pseudomonas
pneumonis , the need for prolonged respiratory support , the need for PIC lines
for IV access , percutaneous drainage of intra-abdominal fluid collections
fungemia, bacteremia , the need for a tracheostomy, a gastrostomy tube leak
and hospitalization for about two and a half months until discharge on
September 27 2008.
In short , he opines that the defendants depared from good and accepted medical practice
by delaying the identification and treatment of gastrojejunal anastamotic leak thereby causing
significant complications , all of which could have been avoided.
The plaintiff has not established any issues of fact with respect to her claim of lack of
as against all defendants.
informed consent. That claim is
Similarly, an issue of fact with respect to negligent privileging, hiring
not been established
The plaintiff has failed to establish the existence of a material issue of fact with respect to
the defendant Drs. Sotirovic , Kelker , Zhurov and Spizzirri. They acted under the direction ofthe
plaintiffs primary care doctor Dr. Angus and the plaintiff has failed to identify anything in his
treatment of the plaintiff that was contra indicated or warranted their intervention. The
defendants Drs. Sotirovic , Kelker , Zhurov and Spizzirri' s motions for summary judgment are
and the complaint against them is
In faulting NUMC and Dr. Angus ' for the
plaintiffs July 28
discharge, Dr. Wilk
concedes that there was no evidence of obstruction or leak on the post-operative upper GI series.
He opines however that there was " copious
from the surgical wound on July 26 which
may have been caused by a leak (as opposed to a surgical wound infection). This , however
ignores the fact that on July 27 at 6:00 a. m. there was only mild serous fluid draining from the
incision without eryhema (redness) or tenderness , along with a declining WBC and temperature
which were all indicative of the wound infection resolving. Moreover , upon discharge , the
plaintiff had no comments or complaints regarding the incision. And , it was the morning of July
that the plaintiff experienced sudden severe sharp diffused pain in her abdomen. That is when
the draining fluids became bilious , not before. Thus , an issue of fact regarding the NUMC' s care
and discharge of the plaintiff during her first admission has not been established.
As for the plaintiffs return , the propriety ofNUMC' s actions in confirming the
anastomotic leak via a CT scan and upper GI series which were completed at 2:00 a. m. has not
been called into question. While there was a further delay of six hours before the surgery was
undertaken , NUMC maintains that that delay was necessitated by the need to maximize the
plaintiffs ability to successfully withstand the surgery via hydration and antibiotics to which the
plaintiff has not responded. This , Dr. Wilk has failed to address.
Furhermore , Dr. Wilk' s opinion that the six hour delay caused profound complications
without any detailed explanation is unacceptably conclusory.
65 AD3d 563(2d Dept 2009);
41 AD3d 457 (2d Dept 2007);
Orner 36 AD3d 791 , 792 (2d Dept 2007).
The plaintiff has failed to establish the existence of a material issue of fact with respect to
the care provided the plaintiff by Dr. Angus and NUMC. Their motion for summary judgment is
and the complaint against them is
As for Good Samaritan Hospital , while there are issues of fact concerning the propriety of
her transfer and the delay in surgical intervention that ensued on account thereof, again , the
proximate cause issue purported to exist by the plaintiff s expert is unacceptably conclusory
requiring dismissal of the complaint against Good Samaritan Hospital as well. As
ORDERED , that the defendants ' motions for summar are
complaint against them is
This constitutes the Decision and Order of the Court.
April 3 ,
Mineola , N. Y. 11501
HELE M. WOODAR
F:\Brinkley v Nassau Health Care Corp. MLP. wpd
COUNTY CLERK' S OFFICE