France v Packy

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France v Packy 2012 NY Slip Op 31448(U) May 24, 2012 Sup Ct, Suffolk County Docket Number: 07-33165 Judge: Jeffrey Arlen Spinner 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 NC. CAL. No. 07-33 165 11-01558MM 1 SUPREME COURT - STATE 0 : NE'W I'ORK I.A.S. PART 21 - SUFFOLK COLJNTY PRESENT: I-loii. MOTION 3 A T E 12-2 1- 1 1 ADJ. DATE 3-7-12 Mot. Seq. ## 002 - MG JEFFREY ARLEN SPINNER Justice of the Supreme Court ____________________---------------_--------------------------- D. FUCHSBERG, ESQ. X JACOB Altorney for Plaintiff SHAN FRANCE as Administrator of the Estate of : 5 C 0 Fifth Avenue INEZ MARTINEZ d W a INEZ MARTINEZNew York, New York 101 10-4599 FRANCE, KELLY, RODE & KELLY, LLP Ai torney for Defendants Packy & Dickinson 330 Old Country Road Mineola, New York 1 150 1 Plaintiff, - against - THEODORE PACKY, M.D., KYLE KWOK, M.D., RICHARD DICKINSON, M.D., JENNIFER EHLERS, M.D., and JEANMARIE DELISI, R.N., Defendants. : : ERIC T. SCHNEIDERMAN, ESQ. Attorney General of the State of New York By: Bridget E. FarreI1, Esq. Attorney for Defendants Kwok, Ehlers & Delisi 120 Broadway New York. New York 10271 Upon the following papers numbered 1 to 3 read on this inotioii for sunirnarv iudcment ; Notice of Motion/ Order 8 to Show Cause and supporting papers 1 - 29 : Notice of Cross Motion and supporting papers -; Answering Affidavits and supporting papers 30 - 35 ; Replying Affidavits and supporting papers 36 .. 38 ; Other-; - ( ' W 1 it is, ORDERED that the motion by defkndants Kyle Kwok, M.D.?.I:nnifer Ehlers, M.D., and .leanmarie Delisi. R.N.. an order granting suniinary judgincnt dismissing the complaint against them for is granted. On April 28. 2005, at approximately 4:30 p.m.. Inez Martinez presented at the Stony Brook I Jni\rci-sityMedical Center Emergency Department with symp.oins compatible with meningitis, namely, f'ever. hcadache, photophobia, stiff neck and nausea. She initially was 'wen by defendant Kyle Kwok, M 11..u'lio at the time was completing a one-year rotational internship at the hospital. Dr. Kwok ubta~ned medical history and performed a general physical c:iamination of Ms. Martinez. It is iioled a [* 2] FrI11lcc L I ack), Index No. 07-33 165 Page N o 3 that hls. A lartineL medical history included a splenectom! arid lupus. A diagnostic assessment of MS. Martiner. b! Dr. Kwok for a possible meningitis infection using Kernig s sign, Brudzinski s sign and neck rigidity allegedly showed no indication of meningeal intlanimation. Dr. Kwok then referred MS. Martinw to the attending physician, defendant Theodore Packy, M.D. Based on his own examination of hcr and the information set forth on her chart. Dr. Packy gave Ms. Martinez a differential diagnosis, of viral infection. He ordered that Ms. Martinez be given medicition and one liter of neurosaline intravenously to treat her nausea symptom, as well as pain medication for her headache. A complete blood count (CBC) test also was ordered. Later that same day, when Dr. Kwok s and Dr. Packy s work shifts in the emergency department ended, responsibility for Ms. Martinez medical care was transferred to defendant Jennifer Ehlers, 13.0., who, like Dr. Kwok, was a medical intern temporarily assigned to the emergency department, and 1.0 defendant Richard Dickenson, M.D., the attending physician. At approximately 1O:OO p.m., Ms. Martinez was discharged from the emergency department by Dr. Dickinson with a diagnosis of resolved headache and fever. Prior to her discharge, Ms. Martinez allegedly told both Dr. Ehlers and Dr. Dickinson that the headache was gone and that she felt well enough to go home. She was instructed at the time of discharge to take Tylenol or Motrin for the fever, to return to the hospital if the headachLe returned or if her symptoms changed or worsened, and to seek. follow-up treatment from her physician. Dr. Dickinson s discharge instructions allegedly were given to Ms. Melrtinez, and to Ms. Martinez mother, by defendant Jeanmarie Delisi, R.N., who was working that night in the emergency department as the discharge nurse. The next day, Ms. Martinez again was suffering with symptoms of headache, neck stiffness, and nausea, as well as abdominal pain and vomiting. She presented at Gocd Samaritan Hospital the evening of April 29, 2006, and was admitted through the emergency department with a diagnosis of bacterial meningitis. Thereafter, in October 2007, Ms. Martinez commenced the instant action seeking damages for medical malpractice and lack of informed consent. Sadly, Ms. Martinez passed away on February 8, 2009. By order dated November 29, 201 0, this Court granted a motiol; for leave to substitute Shan France, Administrator of the Estate of Inez Martinez, as the plaintiff in this action. Supplemental bills of particulars served in April 201 1 allege that Dr. Kwok, Dr. E h l m and Nurse Delisi were negligent, among other things, in failing to perform a lumbar spinal puncture as part of their diagnostic evaluation of Ms. Martinez symptoms, in failing to make a proper diagmsis ofrcningitis, and in discharging Ms. Martinez despite her complaints of headache, fever, chills, C13C shoming left shift, generalized body aches. photophobia, nausea and vomiting, as well as a history of splenectomy. 111- Kwok and Dr. Ehlers now inove for an order granling summary judgment dismissing tlie comnlaint against them. arguinp that they cannot be held liable for medical malpractice. as they were acting only as medical interns under the direct supervision o f the attending physicians. and the attending phq sicians clircctions for Ms. Martinez treatment did not deviate from normal medical practice. Nurse Dclisi also seeks summary judgment in her favor on the complaint on the ground that she cannot be held liable for following the instructions of the attending physician responsible for Ms. Martinez medical treatment. I n support of the motion, moving defendants subm t copies of the pleadings and the bills of particulars, transcripts of the parties deposition testimony, anti certified hospital records relating to Ms. Martinez ciiiergency department treatment at Stony Brook TJriversity Medical Center on April 28, [* 3] 3005. I he> also submit an expert affidavit of Dr. I homas Klniarkomdci. the former Vice Chairman of the Ilepartment of Emergency Medicine at the Albert Einstein College of Medicine and current Assistant Ilea11 and Professor of Emergency Medicine at the Hofstra North Shorz-LIJ School of Medicine. The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that suc i departure was a proximate cause of the p1aintiff.s injury or damage (see Lnu v Wan, 93 AD3d 763, 940 NYS2d 662 [2d Dept 20121; Cnstro v New York City Hetilth & Hosps. Corp., 74 AD3d IO05, 903 NYS2d 152 [2d Dept 20 IO]; Gerrner v North Shore Univ. Hosp., 57 AD3d 839, 871 NYS2d 617 [2d Dept 20081; DiMitri v Monsouri, 302 AD2d 420,754 NYS2d 674 [2d Dept 20031). On a motion for summary judgment dismissing a medical malpractice action, a defendant 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 (see Savage v Quinn, 91 AD3d 748,937 NYS2d 265 [2d Dept 20 121; Casrro v New York Ct Health & iy Hosps. Corp., 74 AD3d 1005,903 NYS2d 152; Stukas vstreiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 201 11; Myers v Ferrara, 56 AD3d 78, 864 NYS2d 517 12d Dept 20081; Thompson v Orner, 36 AD3d 791, 828 NYS2d 509 [2d Dept 20071). If the defendant makes such a showing, the burden shifts to the plaintiff to submit evidentiary proof rebutting the defendant s prima facie showing (Stukas v ? Streiter, 83 AD3d 18,24, 918 NYS2d 176; see Garrett v Uniioersity Assoc. in Obstetrics C Gynecology, P.C., - AD3d-, 2012 NY Slip Op. 03405 [2d Dept 20121; Hayden v Gordon, 91 AD3d 819,93 7 NYS2d 299 [2d Dept 20121; Guzzi v Gewirtz, 82 AD3d 838, (318NYE2d 552 [2d Dept 201 I]; DiMitri v Monsouri, 302 AD2d 420,754 NYS2d 674). As to the applications by Dr. Kwok and Dr. Ehlers for summary judgment dismissing the complaint against them, a physician owes a patient three basic duties of care: (1) the duty to possess the same knowledge and skill that is possessed by an average member of the medical profession in the locality where the physician practices; (2) the duty to use reasmable care and diligence in the exercise of his or her professional knowledge and skill; and (3) the duty to use best judgment applying his or her knowledge and exercising his or her skill (see Nestorowicli v Ricottu, 97 NY2d 393, 740 NYS2d 668 [2002); Pike v HonsiJzger, 155 NY 201, 49 NE 760 [1898]). However. a resident or medical intern who assists a physician perform a medical procedure or implement a treatment plan, and who does not exercise any independent medical .judgment, cannot be held li,ible for malpractice if the supervising physician s directions do not so greatly deviate from normal practice that the intern or resident should be held liable fix failing to intervene (Soto v Aizdnz, 8 AD3d 470, 471, 779 NYS2d 104 [2d Dept 20041; \eo Beflnfiore v Ricottn. 83 AD3d 632, 920 NYS2d 373 [2d Dept 201 I]; Clinvti v St. Mary s Hosp. of Brooklyn. 72 AD3d 1003, 901 NYS2d 65 [2d Dept 20101; Costello v Kirirnzani. 54 AD3d 656, 863 NYS2d 262 [2d Dept 20081; Muiziz v Krrtfuwitz, 49 AD3d 51 . 856 N YS2d 120 [2d Dept 20081). I lere. the submissions in support of the motion arc suficient to establish a prima facie case that 1 h K w o k and D r IMers are entitled tojudgment in their favcr as a matter of law (see Bellnfiore v Ricotta, 83 AD3d 632, 920 NYS2d 373: Costello v Kirmrrni. 54 AD3c 656, 863 NYS2d 262; M w i z v Kritfowitz. 49 AD3d 5 1 1. 856 NYS2d 120). In particular, the iflidavitof. Dr. Kwiarkowski shows that \vhilc Dr Kwok and Dr. Ehlers made assessment evaluations of Ms. Martinez condition, Dr. Pack:y and Dr Dickinson. as the attending physicians, were responsible h r conducting independent examiiiations of Ms. Martinw. detcrmining a diagnosis, and devising a plan of treatmeiit. According to Dr. [* 4] Ktt.iat-kon.ski.:is first-year medical interns. Dr. Kwok and Dr. Ehlers did not ha\^ the authority to make diagnoses. t o order medication or tests. or to order the discharge of a patient. He asserts that Dr. Kwok s presentation to Dr. I acky following his initial medical history interview and examination of Ms. Martinez was appropriate, that the results of the blood studies ordered by Dr. Packy were within normal limits for a patient such as Ms. Martinez, and that there is no evidence that Ms. Martinez had active meningitis at the time of her discharge. Moreover, Dr. Kwiarkowski avers that .[t]he risk of a patient such as Ms. Martinez developing meningitis is a highly sophi jticated item of medical knowledge and not one that a junior resident would be expected to Itnow. Further, the deposition testimony submitted with the rioving papers shows that while Dr. K.wok performed the initial evaluation and Dr. Ehlers performed follow-up assessments of Ms. Martinez condition, neither one ordered medical tests or medication for her, or ciirected that she be discharged from the emergency room. Rather, the attending physicians conducted their own examinations of IvIs. Martinez, arrived at a diagnosis and treatment plan, and supervised the treatment given during the 14pril 28 admission at the emergency department of Stony Brook University Hospital. The deposition testimony of Dr. Dickinson also shows that he made the determination to discharge Ms. Martinez aifier she reported that her headache was gone, and that, while her history of splenectomy increased her risk of bacteremia and sepsis, there are no special requirements or guidelines for evaluating emergency patients who have had a splenectomy. As to the summary judgment application by Delisi, the primary duty of a hospital s nursing staff is to follow the physicians orders (see Totlt v Community Hosp. at Glen Cove, 22 NY2d 255, 292 NYS2d 440 [ 19681). A hospital generally is shielded from lisbility when its employees follow the orders of a private attending physician unless such physician 3 orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into their correctness (Filippone v St. Vincerzt s Hosp. & Mrd. Ctr. o New York, 253 AD2d 616, 61 8, 677 N fS2d 340 [lst Dept 19981; see Totlt 11 f Conimui~ity Hosp. ccf Glen Cove, 22 NY2d 255, 292 NYS2d 440; Cook v Reisner, 295 AD2d 466. 744 NYS2d 426 [2d Dept 20021; Poblocki v Todoro, 49 AD3d 1239, 856 NYS2d 327 [4th Dept 20081: Wariiey v Haddad, 237 AD2d 123, 654 NYS2d 138 [Ist Depi 19971). A nurse also may be held liable fbr his or her independent acts of medical malpractice (Bleikr v Bodnnr, 65 NY2d 65, 489 NYS2dl 885 1985 I: .tee Carhowski v Hudson V d . Hosp. Ctr., 85 AD3d 524, 924 NYS2d 567 [2d Dept 201 11; Applewhite v Acculietiltlz, Inc., 8 I AD3d 94, 9 15 NYS2d 223 [ 1 st De 3t 20 IO]). It is noted that an act constitutes medical malpractice when it can be characterized as a crucial element of diagnosis and treltment (Spiegel v Goldfaril, 66 treatment and an integral part of the process of rendering ~nt-dical AD3d 873, 874. 889 NYS2d 45 [2d Dept 20091, lv denied 15 NY3d 71 1, 91 0 NYS2d 36 [2010], qiio/iyq Rleiler v Bodticir. 65 NY2d 65. 72, 489 NYS2d 885; see Pcccio v Frmkliii Hosp., 63 AD3d 1130, 882 N Y C 3 r l 347 I7rl h i i t 3 0 0 9 ! \ \\it11 I>r. Kwolt and Dr. Ehlers. the cvideiice submi,tcd in SL pport ol the motion establishcs a prin~ facie casc that Nurse Delisi appropriately followed the orders of the attending physician, Dr. IIicLinson. and that she did not deviate from accepted medical practicc (.,ee Selrr v Kcitz. 78 AD3d 1581, 91 1 N Y S X 112 [2d Dept 20101: Martinez v Lcc Porta, 50 AD3d 976, 857 NYS2d 194 [2d Dept 20081) Moving del endants, therefore. shifted the burden to plaintiff to present evidentiary proof in admissible form sul iicient to raise triable issues of fact (see Alvarez v Prospecf Hosp.. 68 NY2d 320. 508 NYS2d i i< [* 5] 021 [ 1986 I: Sfrrkns 1' Sfrviter. 83 ,2D3d 18. 91 8 NYS2d 176). i n opposition lo the motion. plaintify failed to submit widence raising a triable issue as to whether movants breached a duty of care owed to Ms. Martinz. Significantly, the redacted affidavit of plaintifi's espcrt included with the opposition papers is insufticient to defeat summary judgment, as plaintiff failed to subinit an unredacted original affidavit of it:; expert to the Court for in camera inspection or to explain the failure to identify such expert by name (see Rose v Hortoiz Med. Ctr., 29 AD3d 977,816 NYS2d 174 [2d Dept 20061; Cook v Reimer. 295 AD2d 466,744 NYS2d 426; Mtrrano vMercy Hosp., 241 AD2d 48, 670 NYS2d 570 [2d Dept 19981; K r d i vSt. John's Episcopal Ho!sp., 228 AD2d 565,644 NYS2d 325 [2d Dept 19961). Accordingly, the motion for summary judgment dismissing the complaint as against defendants Dr. Kwok, Dr. Ehlers and Nurse Delisi is granted. The action is severed and continued as against the remaining defendants.

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