Turi v John Birk, M.D.

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Turi v John Birk, M.D. 2012 NY Slip Op 32139(U) August 2, 2012 Supreme Court, Suffolk County Docket Number: 37813/2008 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] Short Form OrJ~r SUPREME COURT - STATE OF NEW YORK I.A.S. PART XXXVI SUFFOLK COUNTY PRESENT: HON. PAUL .1. BAISLEY, m., J.S.C. --------------------------------------------------------------J( FRANCISCA TURI, INDEX NO.: 37813/2008 CALENDAR NO. 201101447MM MOTION DATE: 4/19/2012 MOTION NO.' 006 MG CASEDJSP 007 Me; Plaintif1~ -againstJOHN BlRK, M.D., JOSEPH ANDERSON, M.D., NANCY OS WOLD, R.N. and STONY BROOK INTERNISTS, Defendants. --------------------------------------------------------------J( PLAINTIFF'S ATTORNEY: RADNA & ANDROSIGLlO, LLP 110 Wall Street, l11h Floor New York, New York 10005 DEFENDANTS' ATTORNF:YS: BROWN & TARANTINO, LLC 1 North Broadway, Suite 1010 White Plains, New York 10601 ERIC T. SCHNEIDERMAN Attorney General of the State of New York 120 Broadway New York, New York 10271 Upon the following papers numbered 1 to 78 read on this motions for summary judllment: Notice or Motion! Order to Sholl' Cause and supporting papers 1-16: 17-35 ; NMiee of CIO,~SM",tioll ,ltId St:1l'pol'1.ing p"pel$ _: Answering A1Tidavils ill1doupporting l)(lp~rs 36-47: 48-62 . Replying Affidavits and suppOl1ing papers 63-38: 69-75 , Other 76. 77. 78 . (,lIle!tdkr lie.llino Ctill1i~c1 .'t1ppOllitild o!,poKci 16 tit", iliotioa) it is. ill ORDERED that the motion (motion sequence no. 006) of defendant Nancy Oswold, R.N., for an order pursuant to CPLR R. 3212 granting summary judgment dismissing the complaint against her is granted; and it is further ORDERED that the motion (motion sequence no. 007) of defendants John Birk, M.D., Joseph Anderson, M.D., and Stony Brook Internists for summary judgment dismissing the complaint against them is granted. On June 12. 2007, plaintifl was scheduled to have a screening colonoscopy performed by defendant Dr. Joseph Anderson at Stony Brook University Medical Center. However, as Dr. Anderson was unable to perform the procedure, defendant Dr. John Birk performed the colonoscopy on plaintifT that day. After the procedure, plaintiff allegedly called the medical center several times complaining of cramps, and was told by Dr. Anderson ~mdNurse Oswald that it \vas normal to experience cramping after a colonoscopy. The complaint alleges that defendants wcre negligent in providing medical care to plaintift: resulting in perforation of her colon, and that they failed to timely and properly diagnose such condition. DcJcndant OsvlOld now moves for summary judgment dismissing the complaillt against her on the grounds that she did not depart from accepted standards ofnursmg practice in her care and that her conduct was not the proximate cause of plaintiff's injury. In support of her motion, shc submits, inter alia, a copy of the pleadings, transcripts of the parties' deposition testimony, and an aflidavit of Dr. Mark Korsten. [* 2] /'i"(lJI,:i",u Fwi \,.Inill/ lIirk .\f.f).. ('I III. Im/e.-"- ,'\'(), 3iSI3,j(J()8 Defendants Birk, Anderson and Stony Brook Internists (hereinafter collectively referred as the Stony Brook delcndants) also move for summary .Judgment dismissing the complall1t against them, arguing that they acted in ,lCcord with good mechcal prnctice. In support or their motion. they submIt, infer a/iu, a copy of the pleadings, transcripts of the parties' deposition testimony, medical records regarding plaintiff's treatment, and an affidavit of Dr. Edward Leblwlcs. (0 PlaJlltilTopposes the motions by Oswald and the Stony Brook delcndullts, argumg that issues of j~lcl exist as to whether defendants departed Cram accepted standards of medical care. In opposition, plaintiff submits, infer alia, medical records regarding her treatment, her own affidavit, an allidavit of Rita Kennedy Smith, and a redacted aninnation ofa physic un licensed in lhe state orNew York ",vho is certified in internal medicine and gastroenterology. On a motion for summary Judgment the movant bears the initial burden and must tender evidence suffiCient to elimmate all material issues of fact (Winegrad v .Nell' York Univ. A,fed Or 64 NY2J N51, 487 NYS2d 316 [1985]). Once the movant meets this burden, the burden then shifts to the opposing party to demonstrate that there are matenallssues of faet~ mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman \! Cify o/,A/ew York, 49 NY2d 557, 427 NYS2d 595 [1980]; Perez II Grace EjJiscopa! Church, 6 AD3d 596, 774 NYS2d 785 [2004]). As the court's function on such a motion is to determine whether Issues of fact exist, not to resolve issues of fact or to determine matters of credibility; the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Rofh v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O'Neill v Fishki!!, 134 AD2d 487,521 NYS2d 272[2d Dcpt 1987]). The requisite elements of proof in an action to recover damages for medical malpractice are a deviation or depm1ure hom accepted practice and evidence that such departure was a proximate cause of injury or damage (Feinberg v Feft, 23 AD3d 517, 806 NYS2d 661 [2d Dept 20051; lyons I' McCau!ey, 252 AD2d 516. 675 NYS2d 375 [2d Dept 1998],11' denied 92 NY2d 8]4 [1998]) On a motion for summary judgment dismissing the complaint, a defendant hospital or physician has the burden of establishing through medical records and competent expert ani davits tIll' absence orany departure from good and accepted practice, or, irthere was a departure, that the plaintiiTwas not injured thereby (see LUll v (laskowski, 57 AD3d S56, 871 NYS2d 227 [2d DC]1t10081; ,Mende:::v ('il)' of.New York, 295 AD2d 487, 744 NYS2d 847 [2d Dept 2()()2]). Tnopposition. "a plaintiJlmust submit evidentiary facts or materials to rebut the defendant's prima j~lCic showing, so as to demonstrate the eXistence of a triable issue of f~lct" (J)cl/fsch I' ('/wg/ussian, 71 ADJd 718, 719. 896 NYS2d 431 [2d Dept 2010]). Further. the plaintilT"'necd only raise a triable issue offaet with respect to the clement of the cause ol"aetion or theory of non liability (hat is the subjcet of the 1ll00/ing party's prima Llcie showing'" (5:!IIkas l' S'reifa, 83 AD3d 1S, 24, 918 NYS2d 176 12e1Dep! 201 1.1). Dr, I.cbovics' allidavit stutes that the subject procedurc was performed by Dr. Birk and gastroenterology fellow Dr. Michael Ilanis. lie states that Dr I lams started the procedure, under the supervision of Dr Birk, and that Dr. Birk took over the procedure when Dr. I farris encountered looping of the colonoscope. Dr. Lebovics describes looping as a known JCature of a colonoscopy in that the e()lonoscopc tube loops while attempting to be advanced, which typically occurs 111 SIgmoid colon. He opines that 1)r. Birk acted in accord with good and accepted the -2- [* 3] i-i·UIJ('i,I'('u li,h \' .Iol1J1lii,-/;. M,n 1'1 ili lude\" No, 37SI3,]O()S gastroenterology practice when he monitored the attempts by Dr. Harris to reduce or straighten the looping. and therealter decIded to intervenc and take over the co10noscopy procedure. He states that Dr. Birk cOlllpleted the procedure in accord with good and acceptcd medIcal practIce in that as hc withdrew the scope he attempted to visualize the inner lining or lumen orlhe colon and determined that no significant abnormalities or injuries to the colon existed. He further states that Dr. Birk appropriately followed up v"rith the patient aner the procedure, and was not advised of any worrisome circumstance or complaints by plaintiff Dr. Lebovics concludes that plaintilTwas properly discharged from the endoscopy unit by the staff of the hospital. and notes that Dr BHk did not have any further contact with plaintiff Dr. Lebovic noted that plainti ff"made telephone calls to the endoscopy unit complaining or cramps following the procedure, and that Dr. Anderson's note reflects that plaintitTwas advised to walk ami io cali back ir··she did not feel better." Dr. Lebovlcs states that it is not particularly unusual to have patients continue to complain of bloating and/or cramping several days after a colonoscopy. He states that as plaintiff denied that she had a fever or any abdominal distention. it was reasonable for Dr Anderson to advise plaintiff to move around to attempt to relieve the discomfort commonly due to excess gas WIthin the lumen of the bowel following a colonoscopy. Dr. Lebovics opines to a reasonable degree of medical certainty that Dr. Anderson acted in accord with good and accepted gastroenterology practice \-vhen he spoke to p1aintiH, and that it was not a departure from accepted practice to fail to advise her to return to the hospital for further evaluation. He explains that the complaints of plaintiff were not of a "suspicious character" so as to trigger further interventions, and that even if such interventions were undertaken the diagnosis would not have changed. Further, having reviewed the report of Dr. Watkins, who operated on plaintiff's perforated colon, Dr. Lebovics opines that during plaintiff's colonoscopy a split of the outer layer (serosa) o)'the colon occurred as a result of the looping. He states that the split did not create a hole through the entire \vall of the colon, but the split did not heal properly and became further compromised. He further states that it was only after one small section of the split went through the inner lining of the colon and created a hole through the entire wall of the colon that conlcnts of the bowel begin spilling into the abdomen, leading to an acute and sudden deterioratIon of plaintiff's condition. [n addition, Dr Lebovies states that even if Dr. Birk or Dr. Anderson had deCIded to evaluate plaintilTwhen she called to complain about cramping, the diagnOSIs orthe serosal tear ),'{)"Id h:l"" \)""1' in'tVl"s'bL", , "" ,·n,·'oi"" s"1"'d,·'-'s s'lel"s '1" "''''='''''='' ,... ~, ¢. ,<.<.. ,'T ",. ~APl ""ll,la' "0' ')" "'ble '(l d;'lg-J'''S'' t-"'" ¢ ¢ ¢. "-._, '" Vv, '" , ¢ ¢.." , a tear limited to the outer W<.l11 the colon. I-Ie further states that even Ifpla111td'fhad been of admitted and placed all antibiotics, the perforation would still have occurred. He concludes that nothing Dr. Birk and Dr. Anderson did or did not do would have prevented the perforation ham __ ... ~ ,,- " __ ¢. u ¢. j\"u He ,,, OCCUlTing. Here. the Stony BrO()K dcfendants established aprilllO./(lcie case that they did not deviate or depart 11·omaccepted medIcal practice through the submission of plaintiff's medical records, 1he partics' deposition testimony. and the expert affirmation of Dr. Leb()vlcs (see ,')'al1l1l11((111J v Shupim. 53 /\[)3d 537, 361 NYS2d 760 [2d Dept 2008]; Bengstonl' Wang, 41 AD3d 625, 839 NYS2d IS912d Dept 20071: Jonassen \1 S'/aten Is_ Univ_ lImp" 22 i\D3d 805, 803 NYS2d 700 12d Dept 2005J). Therefore, the burdcn shIfted to plaintiff to come furth with adll1lsslhle evidence refuting tlIe defendant's primajilcie showing (Holbrook I' United No,lj)_ Met!. Or, 248 AD:?d 35g, 669 NYS2d 631 12d Dept 1998.1: Pierson v (;ood Sumaril(1Il J-!o.IP_,208 i\D2d 513, 616 NYS2cl BI 5 l2d Dept 19941). -3- ¢ ¢.. [* 4] h"III<'i,I'('1I t'II'1 I'J,,/1ii !!irk. ,\t!>. el (fl. 111,1".1"VI!. 3 7S 13,.](1)8 .. PbintlJFs evidence in opposition 10 the motion was insufficient to raise a triable issue or fact. PlaintiJrs affidavit states thai during the colonoscopy. even though she had been given <.mesthcsia, she wok!.: up more than once in pain. She st<l,testhat Dr. Hirk kneaded her stomach and that she was given additional anesthesia. She states that <Jrtcr the procedure, she was advised that cramping was normal and was discharged without receiving any written discharge instructions. She rllrlhcr states that Dr. Anderson called to see how she was doing the day after the procedure. and that when she complained of very bad cramps he told her that it was nonnal and Ihat she should exercise to alleviate the pain. She states that on June 141h ¢ as the pain worsened, she called the medical center and spoke with cilher Dr. Hirk or Dr. Anderson. who assured her Ihat the cramps werc normal and suggested that she purchase over-the-counter gas medication. She further slales that on June 15'h, she twice called the medical center, speaking to Dr. Anderson the [irst time and Nurse Oswald the second time, and that both of them assured her that sh~ should not worry about the cramping. She states that the pain continued to 'worsen over the next two days. but that she could not call the medical center because it was closed for the weekend. She states that she went out for dinner on June 17lh with her family, and that she woke up early the next morning III severe pain. She further states that her daughter drove her to the emergency room on June 18, and that she was ad milled in septic shock due to a perforated colon. She statcs thaI she had surgery consisting ofa bowel resection and colostomy. and remained in the hospitalulltil July 6. 2007, Si~niliealltly. the redacted affidavit of plaintiff's expert included with the opposition papers is insufficient to defeat summary judgment, as plaintiff failed to submit an unredacted original arlidavit of its expert to the Court for in camera inspection or to explain the failure to identify such expert by name (see Rose v Honon Med 01'.,29 AD3d 977.816 NYS2d 174 [2d Dept 20061; Cook l' Reisner, 295 AD2d 466. 744 NYS2d 426; Marano v Mercy Hosp., 241 AD2e! 48.670 NYS2d 570 1.2d Dept1998]: Kruck v SI. John·s [i;piscopa! Ho.\jJ .. 228 AD2e! 565, 644 NYS2d 32512d Dept 1996]). HO'vvcver, even ifit were signed andul1l"cdactcd, plaintiJrs experfs report is conclusory on the issue of proximate cause and failed to address the explanations of Dr. Lebovies as to why the alleged departures did not cause plaintiJrs in.iuries (see Andreoni II Rir.:!llIwnd, 82 A.o3d 1139,920 NYS2d 225 [2d Oept 201 tJ; Rehow v Wilen. 41 i\D3d 457. 838 NYS2d 121 12d Dcpt 2007J; Rail/ire:; l' Co!umhia-Preshyteriol1 Med (..'11'., 16 !\D3d 238. 790 NY S2d 606 12d Dcpt 2005 I) Thus, the Stony 13 rook de fcndants' 11101 for sU111maryj ud gment ion is grimlcd. As 10 Oswold's motio11 1'01' ummary judgment. her expert. Dr. Kor.';ten. states in an s anidavit that based on a revic\v afthe record, Nurse Oswold·s contact with plaintitToeCllJTed t\'y"O days post-procedure during a telephone conversation whcn plainti ITcalled the endoscopy lInit to complain about abdominal pain. Oswold allegedly asked plaintirriCit Celt like gas and whether the plaint i 1'1' had tried to pass it. Accordmg to Oswold' s deposition te.<:trnony, pl;;lintiff did nnt i provide further details about her condition, and switched the conversation to ask about the diverticulosis condition shc was diagnosed with ancr lhe colonoscopy. Dr. Korsh;n opines Ihat Oswald did nol commit any departures II'om aeccpted medical practice during the telephone conversation with plaintiff. He states that based upon Oswold·s version oCthc evenls, she did not depart from accepted practice in asking plaintirrirshc had passed gas. as it is normal lor patients post-eololloscoPY to experience abdominal crumpll1g and pam. Morcover. he states she did not commit any departure from accepted practice, as Dr. -4- [* 5] j,'ruIlCj,I'i'!1 Fifr; \'.1,,111I /311'1<, ,\f.fJ <'III! Anderson took over the phune call and propel"ly addressed plaintiffs complaints. According to plalntifrs version orthc events, in whIch Dr. Anderson did not take over the phone call. Dr. Korstcn opined Ihat as pia inti IT only complained of abdom1l1al pain, Oswold did not commit any departures from accepted medical praclice, lie slates that a eornplmnt or abdominal paltl three days post-colonoscopy is nol uncommon, and that it did not warrant Osw'old instructing the patient 10 come in I'(x cvnluation or to speak with a physician. Dr. Karsten further states his belief wlthlll a reasonable degrce of medical certainty that plaintiff did not have a colon perforation on June 151h when she allegedly spoke with Oswald, as she \\ias still able to cat solid food and drink alcohol on June 1?h. lie explains that a colon perforation causes severe, debilitating pain and patients are unable to tolerate ingestion of food or liqUid. Thus, Dr Karsten concludes that Oswold did not raIl to asccrtain lhat plaintiffhacl a colon perforation when the two spoke on the telephone, as plaintiff did not have the condition at that time. Oswold established primalacie her entitlement to summary judgment through the parties' deposition testimony and the affidavit of Dr. Korsten, who coneluded that Oswold did not depart j']'om the accepted standard of care during her phone conversation 'vvith plainti ff and that no causal relationship can be established between her fi.lilure to instruct plaintiff to go to the nearest emergency room and plaintilTs injuries (see l~jo,.ke v Rubenstein, 53 AD3clS19, 861 NYS2d 757 [2d Dept 2008.1; Worthy v Good Swnarifal1 Hosp. Med. Or, 50 AD3d 1023,857 NYS2d 178 [2d Dept 2008]; Rosen v John J Foley Skilled Nursing Facility, 45 AD3d 558, 846 NYS2d 208 [2d Dept 2007]), The burden of proof, therefore, shifted to plaintiff to sho\v a triable issue exists as to Oswald's negligence. Rita Kennedy Smith. a nurse, states in an aflidavit submitted in opposition to Oswold's motion that Oswold's expert is a medical doctor and is not tramed in the standards of nursing care. She asserts that Oswold departed fi'om accepted standards during the telephone call with plaintiffby failing to ascertain who performed the colonoseopy, biling to inform the treating doctor or plaintiff's complaint and failing to recognize the symptoms of perforated colon. She also states that Oswold failed to advise plaintiff to go to the emergency room and failed to document the phone calls in a timely and accurate manner. SmIth's affidavit further states that Oswold departed rrom accepted nursing care by failing to notify Dr. Birk, plaintiff's treating doctor, of plUlnti rrs complaint of pain and instead, handing the phone to Dr. Anderson, who was 110taW<ll"C ofplaintift"s comp!lcalions during the procedure. She states that Oswold handed the pbU!1Cto Dr /\ndcrs()n without il~l~ml:l:1g him that plaintifl-' ccmplained of abclomi;"d p,:in, thereby departing Irom accepted standard of nursing care. She states that when plaintilf called on JUlle I )lh, to advise that her abdominal pain was worsening, OS'vvold was negligent in telling plaintitTnot 10 worry and that she would feel better. Smith further asserts that accepted nursmg standards reqUIred Oswold to instruct a patient \vith the aforementioned complaints to go to the nearest emergency room It') seck care 1'(')r her worsening COI1chuOI1. Smith's aflluavit Luis to establish hcr quali Jications as an expert in gastrOlntcstinal mClilcine. as she merely stall's that she is a registered nurse (see Kingshl"()ok Jnvish Med 0,. v AI/stale Ins, C'o,. 61 1\1)3d 13,871 NYS2d 680 12d Depl 2009]; l!ojinw1I1 i' Toys '"R" Us. NY Ud Porll1('/"shi!). 272 /\D2d 29(). 707 NYS2d CJ41 [2d Del'll 2000]). I'he affid<lvit dot's no! set forth whether Smith had specilic traming or expertise 111 providing care to patients following a colonoseopy procedure or hmv she became famil1ar v'nth the applicable standards ror providing care for patients, Furthermore, Dr. Korsten states in his affidavit that plaintilT did not have a -)- [* 6] f'-rml<:I,I'Ui F!ll'il'./"ill! liid, fwft'.\ .No. 378/ 3!~'(}1!8 .If./) .. ('/ ,,/ perforated colon at that time plaintifTspoke to Oswald. Smith's affidavit docs not address this issue, nor can it. as she IS not a medical doctor and lacks the qualifications to render a 11ll'dical opmion (sl'e F!Ii()( l' /'ong Is. [-[Olll!!, Lid, 12 AD3d 4:-U, 784 NYS2d 615 [2d Dcr! 20(41). Thus, Smith's purported expert allidavii j~tiled to rnise a triable issue of fact as to whether the alleged deviation from the nursing standard was the proximate cause of plaintiff's injuries (.1"(;'(;' Romano l' Siun/ey, 90 NY2d 444, 661 NYS2d 589 [1997]: K(;'ewfl'/ v RUkin, 41 AD3d 661. 839 NYS2d 151 [2e1 Dcpt 20(71). Accordmgly, the motion by 05\\lold for summary judgment is granted. ___ }AUt J. BAISI.EY~,,18_. __ Dated: August 2, 20]2 JSC -6-

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