Fortune v Good Samaritan Hospital

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Fortune v Good Samaritan Hospital 2012 NY Slip Op 32200(U) August 17, 2012 Sup Ct, Suffolk County Docket Number: 09-3787 Judge: Denise F. Molia 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] copy SHORT FORM ORDf':R INDEX No. 09-3787 CAL No. 11-02547MM SUPREME COURT - STATE OF NEW YORK IAS. PART 39 - SUFFOLK COUNTY PRESENT: Hon. DENISE F. MOLIA Justice of the Supreme Court MOTION DATE 2-24-12(#020&#021) MOTION DATE 3-30-12 (#022) MOTION DATE 4-30-12 (#023, #024 & #025) ADJ. DATE 7-20-12 Mot. Seq_ # 020 - MG # 023 - MG # 021- MG # 024 - MG # 025 - MG # 022 - MG ---------------------------------------------------------------X KATHY FORTUNE, as Administratrix of the BAUMAN & KUNKIS, P.c. Estate of BOBIE JOLIENE FORTUNE, Attorney for Plaintiff 14 Penn Plaza, Suite 2208 New York, New York 10122 decedent, Plaintiff: LEWIS JORS AVALLONE A VILES, LLP Attorney for Defendants Good Samaritan Hospital Center, Kennedy, N.P., Sharma, M.D., Vite, P.A., Tregerman, P.A., and Cruz, N.P. 425 Broad Hollow Road Melville, New York 11747 - against - CHESNEY & NICHOLAS, LLP Attorney for Defendant Sharma, M.D. 2305 Grand Avenue Baldwin, New York 11510 GOOD SAMAIUT AN HOSPITAL, JOAN MARIE KENNEDY, N.P., ADHI SHARMA, M.D., BRIANNA VITE, PA, SARA TREGERMAN, M.D., NORMAN CRUZ, N.P., GREGG M. SZERLIP, D.O., ALICE CAMACHO, M.D., LONG ISLAND MEDICAL ASSOCIATES, INC., CVS PHARMACY, INC., Defendants. IVONE, DEVINE & JENSEN, LLP Attorney for Defendant Szcrlip, M.D. 2001 Marcus Avenue, Suite N-l 00 Lake Success, New York 11042 KRAL, CLERKIN, REDMOND, RYAN, PERRY & VAN ETTEN, LLP Attorney for Defendant Camacho, M.D. 538 Broadhollow Road, Suite 200 Melville, New York 11747 ---------------------------------------------------------------X [* 2] Fortune v ("Jood Samaritan Hospital Index No, 09-3787 Page NO.2 Upon the iollowingpapet·s numbered J to 96 read on these Illolions for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers (0201 1-16; Notice of Cross Motion and supporting papers (02]) 17-28: (022) 29-43; (0231 44-56:(024) 57-70: (025) 71-87; Answering Affidavits and sllpporting papers 88-91, Replying Affidavits and sllpporting p8pers 92-94: 95-96 ; Other _' (=I ,111el,C<l1ill; eOLlli$e1 WPPOlt itlid OPf"~) I ill it is, ORDERED that motion (020) by the defendant, CVS ALBANY, L.L.c. silva CVS Pharmacy, Inc. and CVS Albany, L.L.c., pursuant to CPLR 3212 for summary Judgment dismissing the complaint and any cross claims asserted agamst it is granted with prejudice; and it is further ORDERED that motion (021) by the defendant, Alicia U. Camacho, M,D. slhla Alice Camacho. M.D., pursuant to CPLR 3212 for summary judgment dismissmg the complaint and any cross claims asserted against her is granted with prejudice; and it is further ORDERED that motion (022) by the defendant Long Island Medical Associates, Inc" pursuant to CPLR 3212 for summary judgment dismissing the complaint and any cross c1atms asserted against it on the issue of vicarious liability as to defendant Alicia U. Camacho, M.D. is granted with prejudice; and it is further ORDERED that motion (023) by the defendant. Adhi Sharma, M.D., pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against him is granted with prejudice; and it is further ORDERED that motion (024) by the defendant, Long Island Medical Associates, Inc., pursuant to CPLR 3212 for summary judgment dismissing the complaint and any cross claims as asserted against on the basis that it is not vicariously liable for the acts of Gregory M. Szerlip slhla Gregg M. Szerlip, D.O., and that there are no independent claims, or any theory of negligence, as to Long Island Medical Associates, is granted with prejudice; and it is further ORDERED that motion (025) by the defendant, Gregory M. Szerlip, D.O. silva Gregg M. Szerlip, D.O., pursuant to CPLR 3212 for summary judgment dismissing the complaint and any cross claims asserted agamst him is granted with preJudice. In this medical malpractice action, the plaintift~ Kathy Fortune, as Administratrix of the Estate ofBobie Joliene Fortune, decedent alleges that the defendants negligently departed from good and accepted standards of medical care and treatment ofplaintiJf's decedent, causing her to suffer drug toxicity resulting in her death on August 3, 2007. It is further alleged that the defendants failed to inform the decedent of the risks and benefits concerning the medications prescribed to her. A derivative claim has also been asserted by the plaintiff. It is undisputed that the decedent, Bobie Joliene Fortune, was an 18 year old female who worked as a wmtrcss and was a part time college student. She died as a result of a drug overdose, be it intentional or accidental The decedent was taking multiple drugs prcscribed by multiple physlcians. The toxicology report indicated that her body contained Metaxalone (Skelaxin), a non-narcotic pain medication; Cyclobenzaprinc (Flexeril) a non-narcotic medicine for muscle spasm and pain; Duloxetine (CymbaIta). an antidepressant; Diphenhydramine (Benadryl), an antihistamine; Salicylate (Aspirin): and THe (Marijhuana) metabolites. Skelaxin was prescribed by Dr. Camacho on July 20, 2007. Cymbaita was prescribed in December 2006 by defendant Dr. S7crhp, who then prescribed it again four months later in increasing doses through July 12, 2007. On August 2. 2007. Dr. Szerlip ordered Cymblata and prescribed Skelaxin, On July 30, 2007, Dr. Tregerman prescribed Flexeri! at an emergency room visit at Good Samaritan Hospital. On August 2, 2007, Dr. SzerlJp [* 3] fortune v Good Samaritan Hospital Index No. 09-3787 Page No.3 increased the dosage of Cymbalta. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a maneI' of law. tendering sufficient evidence to eliminate any matcrial issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (FrieIJds of Animals v Associated Fur Mfrs., 46 NY2d 1065,416 NYS2d 790 [19791; Sillman v Twentieth Century-Fox Film Corporatiou, 3 NY2d 395,165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (WiIJegrad v N. Y.U. Medical Center, 64 NY2d 851. 487 NYS2d 316 rI985]). Failure to make sueh a showing requires denial of the motion, regardless of I' he sufficiency of the opposing papers ( Willegrad v N. Y. U. Medical Center, supra). Once such proof has been of/ered, the burden then shifts to the opposing party, who, III order to defeat the motion for summary judgment, mllst proffer evidence III admissible form ...and must "show f·acts sufficient to require a trial of any issue or fact" (CPLR 32121"b];Zuckernum v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proorin order to establish that the matters set forth in his pleadings arc real and capable of being established (Ca"'ro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d Dept 1981 J). The requisite clements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holtoll v Spruill Brook Mallor Nursing Home, 253 AD2d 852, 678 NYS2d 503 [2d Oept 1998], app denied 92 NY2d 818. 685 NYS2d 420 [1999 I). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see Derdiariall v Felix Contracting Corp., 51 NY2d 308,434 NYS2d 166 [19801; Prete v Rajla-Demetrious, 224 AD2d 674. 638 NYS2d 700 [2d Ocpt 19961). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiffs injury (see Fiore v Galang, 64 NY2d 999, 489 NYS2d 47 [19851; Lyou.\' v McCauley, 252 AD2d 516, 675 NYS2d 375 [2d DeptJ, app denied 92 NY2d 814, 681 NYS2d 475 [1998J; Bloom v CiO' New York, 202 AD2d 465, 609 NYS2d 45 [2d Dept 1994]). ~r To rebut a prima facie showing of entitlement 10 an order granting summary judgment by the defendant, thc plaintiff must demonstrate the existence of a triable issue offact by submitting an cxpelt's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant' 5 acts or omissions were a competent-producing cause of the injuries of the plainti ff (see Lifsllitz v Betll Israel Med. CtrKillg . ¢ ¢ lIigllway Div .. 7 AD3d 759, 776 NYS2d 907 [2d Dept 2004]; Domar{l{lzki v Glen Cove OB/GYN Assocs .. 2421\D2d 282. 660 NYS2d 739 12d Dcpt 1997]). Counsel for the plainlil1'al1inns that a Stipulation ofOisconlinuance as to defendants Adhi Sharma. M.D. Alice Camacho. M.D .. and CVS Phamlacy and CVS Albany, L.L.C. has been provided. A copy of that Stipulation has not been provided to this court. however, none of the defendants have opposed their codefendant's respective motions or the Stipulation of Discontinuance. Accordingly. motion (020) hy the defendants CVS Albany L.L.C. s/h/a CVS Pharmacy, Inc. and CVS Albany. L.L.C.; motion (021) by the defendant, Alicia U. Camacho, M.D.: and motion (023) by the defendant. /\dhi Sharma. M.D .. are granted and the complaint and any cross claims asserted against each are dismissed with prejudice. [* 4] Fortune v (jood Samaritan Hospital Index No. 09-3787 Page No.4 In motion (022). Long Island Medical Associates, Inc., seeks dismissal of the complaint as asserkd against it on the basis that it is not vicariously liable for any alleged negligence by co-defendant Alicia U. Camacho, M.D. The record supports that Dr. Camacho was licensed to practice medicine in New York State. and that she has been employed by Long Island Medical Associates since 2000, and worked with her colleague, Gregg Szcrlip, M.D. The plamtiffdoes not oppose this application by Long Island Medical Associates, and has stipulated to dismiss the action against Dr. Camacho. Accordingly, motion (022) by Long Island Medical Associates, Inc. is granted and the complaint and any cross claims asserted agamst it on the issue of vicarious liability as to defendant Alicia LJ.Camacho, M.D. are dismissed with prejudice. Turnmg to motion (024), the defendant, Long Island Medical Associates, Inc., seeks summary judgment dismissing the complaint and any cross claims as asserted against it on the basis that it is not vicariously liable for the acts of Gregory M. Szerlip, and that there are no independent claims, or any theory of negligence, as to Long Island Medical A.ssoclates. In motion (025), defendant Gregory M. Szerhp, D.O. seeks summary judgment dismissing the complaint on the bases that he did not depart from good and accepted standards of medical care and treatment and did not proximately cause any injury to the decedent or her death. Dr. Szerlip submitted a supporting affidavit wherein he averred that he is a physician licensed to practice medicine in New York State, specializing in anesthesiology and pain management, and that he is board certified in pain management. He set forth his educational background, training and work experience. He opined within a reasonable degree of medical certainty that he did not depart from good and accepted standards of medical practice in his care and treatment ofBobie Joliene Fortune, and that there is nothing that he did or did not do which caused her mjury or death. Dr. Szerlip described the various medications being used by the decedent, including Celebrex, Cymbalta, FlerxeriL and Ske1axin. He initially evaluated the decedent on November 13, 2006, when she presented with lower back, right hip, and nght knee pain for over two months, which pain she was self-treating with 6 to 8 Tylenol per day, as well as 2 to 3 Aleve pills every couple of hours, without relief. Dr. Szerlip stated that the decedent had some difficulty getting onto the examining table, and during physical examination, he noted that she had multiple right lumbar paravertebral muscle spasms. He ordered a lumbar MRI. He diagnosed her with right hIp and knee pain, and ruled out lumbosacral radiculopathy; right lumbar paraspinal muscle spasms; lumbago, ruled out lumbar disc displacement; and possible depression with somatization. As a pain management physician, it is within his ability to treat the depression as well. He prescribed Celebrex 200 mg, two pills the first day, and one pJilthereafter every day. The MRI was performed on November 29,2006 and was negative. An MRJ of her right knee demonstrated mild degeneratIve changes of the posterior horn of the medical meniscus. Dr. S/:crlip continued that when the decedent returned on December 4. 2006 for follow-up care, she advised him that the Celebrex was effective in reducing her pain, but she appeared to be mildly depressed. He continued the Cclebrex and ordered Cymbalta 20 mg. daily, with no rc1ills, to address her nerve pain, with the additional bendit of helping her mild depression. Dr. Szerlip stated that there is no known toxic reaction or deadly interaction between taking Cymbalta, as prescribed, with Celebrcx, as prescribed. Although Instructed to return in three weeks, she returned in four months on April 19,2007. She advised him that she stopped taking the Cymbalta as it did not help with the pain. Due to the delay in her return visit. he started treatment over again, obtaining a new baselIne with regard to the dosage and frequency of the medicatIons he was prescribing. [* 5] Fortune v Good Samaritan Hospital Ind(:\ No. 09-3787 Page NO.5 Cymbalta 30 mg was prescribed as the 20 mg did not help. Since Cymbalta can be prescribed up to 120 mg daily. this increase in dosage, he stated, did not create a risk of a toxic reaction or deadly result to the patient. She was instructed to return in three weeks. and presented on April 30, 2007, advising that the Cymbalta was help111gher pam, She was continued on the Cymbalta 30 mg. with no refills. and was instructed to return in one month, When Dr. Szerlip saw hcr on May 31, 2007, her medication was continued after evaluation. On July 12, 2007. she advised him that her right knee pain is '"great" and that she was performing wrestling, which she was advised by hUll not to participate rn, but she refused. Therefore, he 1I1creasedCymbalta to two 30 mg per day, anticipating increased pain due to the vl/restling. lIe continued that good practice provides that the drug dosage bc increased slowly. He added that she advised him that she had been seen at Good Samaritan emergency department for tOl1icollis of the neck on July 9, 2007. I·Ie stated that if she had obtained a prescription from another health care provider, he would have noted it in her record. He instructed her to return in four weeks, and next evaluated her on August 2, 2007, and learned from her chm1 that she presented to Long Island Medical ASSOCIates,Inc. on July 2 L 2007 with complaints oflower back pain, and muscle spasm, as well as significant neck pain. When he reviewed the chart note for that date, it indicated that the only current medication was Cymbalta 30 mg., and that she v.'as prescribed Skelaxin (a muscle relaxer used to relieve muscle spasms and pain) 800 mg. daily. Dr. Szerlip continued that the dosage ofSkelaxin prescribed on July 21, 2007, and opined that it WaSin accordance with good and accepted medical practice, as it was a minimum dosage and could be taken four times a day. He continued that Cymbalta 30 mg. two a day, and Skelaxin 800 mg. would not result in toxic drug reaction or deadly drug interaction. Dr. Szcrlip stated that on August 2, 2007, the decedent advised him that she was ·"loving life" and that the Skelaxin was helping tremendously. Her depression was greatly reduced, and her muscular skeletal symptoms had deceased. She showed no signs of being over-medicated from the Cymbalta 60 mg. and Skelaxin 800 mg., and had no harmful side effects. There were no complaints of cognitive, neuromuscular, or anatomic nerve system issues. such as confusion, disorientation, agitation, in-itability, exaggerated rel1exes, muscle rigidity, tremors, loss of coordination, fear, perfuse swelling, rapid heart beat or increased blood pressure. If she did offer such complaints, he would have chal1ed it and would have made changes in her medications_ I-Iestated that he did not prescribe FIexeril to the decedent, and that there is no known drug interaction between Flcxeril and Skelaxin. nor is there a toxic reaction between the two which would result in death. He concluded that he did not depart from good and accepted medical practice during his care and treatment orthe decedent, and did not cause or contribute to her death. which. based upon the Medical Examiner's report, was attributed to a combination ora number of prescription drugs, as well as t1legal drugs_ At his deposition. Dr. SzerJip testified that he is licensed to practice medicine in New York and New .Iersey. He is employed by, and is an onicer in GMS i\.1edical Services, which provides anesthesia servIces for Long Isbnd l\,ledical Associates since 1995, pursuant to a contract or agreement. I-Ieworked there in an officebased capacity A 1099 form 'vvasprovided by Long Island Medical Associates to GMS Medical Scrvices. fie was thell paid by GMS. Rased upon the foregoing, and as supported by the record, it is determined Ciregory Szerlip, M.D, has established prima facie entitlement to summary judgment dismissing the complaint as asserted against him In opposing this motion. the plaintiff has submitted the ailinnation of Kristina Jones, M.D., a physician licensed to practice medicine in New York Statc, \I/ho is a board certified psychiatrist. She set forth her current [* 6] Fortune v Good Samaritan Hospital Index No. 09-3787 Page NO.6 work experience as an instructor III psychiatry, and stated that she maintains a private practice in psychopharmacology and psychiatry, and teaches courses in psychopharmacology to NYU psychiatry residency students. She set forth the records and matenals which she reviewed and opined that there were many departures by Dr. Szerlip in his care and treatment of the decedent. Dr. Jones stated that three things may have occurred with the medication in the decedent the presence of both Skelaxin and Flexcril could both have acted as sedatives, causing respiratory depression and death; that the combination of Cymbalta with Flexeril could have led to Scrotonm Syndrome, causing her death; the decedent may have been taking all three drugs prescribed by different physicians, leading to a combination of respiratory depress and/or Serotonin Syndrome: or, and additive drug interaction may have occurred as the Cymbalta inserts and pharmacy data indicate it should not be taken with other eNS (central nervous system) Depressants, such as Flexeril. Dr. Jones did not opine within any reasonable degree of medical certainty with regard to the conclusory suppositions and opinions she sets forth, Dr. Jones stated that the combination of the Cymbalta prescribed by Dr. Szerlip, and the Flexeri! by Dr. Tregerman from Good Samaritan emergency room, could have lead to Serotonin Syndrome, accounting for her report to her stepfather that she was feeling feverish and dizzy. Dr. Jones speculates, however, concerning whether the decedent was taking the Skelaxin and Flexeril as prescribed, She continued that the police report details only the narcotics prescribed rather than the number of pills of Cymbalta, Flexeril, and Skclaxin, and therefore it is hard to say whether the decedent was taking those medications as prescribed, or if she took over the amount prescribed. Dr. Jones does not state that Dr. Szerlip prescribed Flexeril to the decedent, or that he was made aware by the decedent that she was taking such medication. Dr. Szerlip prescribed Cymbalta and Skelaxin. Dr. Jones does not comment upon any possible effect of other drugs listed in the toxicology, such as Benadryl and Aspirin. While Dr. Jones stated that C)llnbalta is specifically dangerous to prescribe to a patient with a history of bipolar, as it is thought to precipitate a manic episode, she has not demonstrated that the decedent was manic or that this was the proximate cause of her death. She continued that she is concerned that though the decedent had been prescribed Cymbalta 30 mg, with Flcxeril, and even Skelaxin without incident, the increased dose of Cymbalta may have made an interaction with Flexeril more likely to cause serotonin syndrome or respiratory depression. However. Dr. Jones does not support this theory, and has not demonstrated how Dr. Szerlip had reason to know thatlhe decedent was taking flexeril, as he did not prescribe it She does not support her opinion that the dosages for Cymba Ita and Skelaxin, as prescribed by Dr. Szerlip, were the proximate cause of the decedent's death. Dr. Jones does not dcmonstrate that the decedent presented to Dr. Szerlip with any signs or symptoms of serotonin syndrome or respiratory depression. In conclusion, Dr. Jones stated, the decedent's care was fragmented between many physicians in two locations, and that documentation that each practitioner knev.' what the other was doing is problematic or noneXistent. She continued that it ISpossible that the decedent follo'v\'ed the orders by Dr. Szerlip and Dr. Tregerman, not realizing that the two drugs in combination might cause respiratory depression and result in death. Dr. Jones does not set fonh the levels of the drugs found in the toxicology report to indicate the levels present in the decedent's body to support any of her opinions. While Dr. Jones offers numerous opinions concerning departures from the standard orcare, she has not established that any action by Dr. Szerlip was the proximate cause of the decedent's death. Her conclusory opinions are based upon much speculatIOn and supposition, and are not supported by evidentiary proof in the record. [* 7] Fortune v (iond Samaritan Hospital Index No. 09-3787 Page No.7 Consequently. the plamtilThas failed to raise a factual issue to preclude summary Judgment from bemg granted to Long Island Medical Associates on the bases that they are vicariously liable for any acts ofnegligcnce by defendant Szerlip, that thcrc were any independent acts of negligence by Long Island Medical Associates, or that Dr. Szerlip negligently depmied from good and acccpted standards of care and practice, proximately causing the death of the decedent. Accordingly, motion (024), by Long Island Medical Associates, Inc. for summary judgment dismissing the complaint and any cross claims asserted agamst it on the bases that it is not vicariously liable for the acts of Gregory M. Szcrlip, and that there are no independent claims, or any theory of negligence, as to Long Island Medical Associates, and motion (025) by Gregory M. Szerlip, D.O. for summary judgment dismissing the complaint on the bases that hc did not depart from good and accepted standards of medical care and treatment and did not proximately cause any injury to the decedent or her death, are granted, and the complaint and any cross claims assertcd against thcm are dismisscd \vith prejudice. Dated: (D~l,i),:\i ]"7 ,')~)j} ') ---~"-'- II'.~ I ,j J.S.c. FINAL D1SPOSITlON_X_ NON-FINAL DISPOSITION TO: AHMUTY, DEMERS & MCMANUS, ESQS. Attorney for Defendant Long Island Medical Associates 200 LU. Willets Road Albertson, New York ] 1507 MCANDREW, CONBOY & PRISCO, LLP Attorney tor Defendant CVS Pharmacy 1860 Walt Whitman Road - Suite 800 Melville, New York 11747

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