Kelly v Guigliano
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Kelly v Guigliano 2012 NY Slip Op 33214(U) May 18, 2012 Sup Ct, Suffolk County Docket Number: 06-15426 Judge: Ralph T. Gazzillo Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO.- 06- 15426 CAL,. NO. - 10-01877MM SHORT ORDER FORM SUPREME COURT - STATE OF NEW YORK I.A.S. PART 6 - SUFFOLK COUNTY PRESENT: Hon. RALPH T. GAZZILLO Acting Justice of the Supreme Court Plaintiffs, JAMES GUIGLIANO, M.D., SOUTHAMPTON : HOSPITAL, SOUTHAMPTON HOSPITAL ASSOCIATION, INC., and/or t/a and/or d/b/a SOUTHAMPTON HOSPITAL and M. NGUYEN, : dMa MINDY-TRAN HOANG NGUYEN, R.N., : 24/7 EMERGENCY CARE, P.C., MITCHELL : A. CAPLIN, M.D., and LAWRENCE RUBIN, P.A.,: MOTION DATE 1/24/11 ADJ. DATE 219112 Mot. Seq. # 01 1 - MG DANIEL A. ZAHN, P.C. Attoiaey for Plaintiffs 1597 Grundy Avenue Holbrook, Ne:w York 11741 LEWIS JOHS AVALLONE AVILES Attoi-ney for Defendant Guigliano 425 13road Hollow Road Melville, New York 11747 BAR.TLETT, MCDONOUGH, BASTONE, LLP Attorney for Defendants Hospital and Ngiiyen 670 Main Street Islip, New York 1 1751 WAGNER DlOMAN & LET0 P.C. Attorney for Defendants 24/7, Caplin & R.ubin 227 IvIineola .Blvd. Mineola, New York 1 1501 Upon the following papers numbered 1 to 92 read on these motions for leave to renew ;Notice of Motion/ Order to ; Answering Affidavits and Show Cause and supporting papers 1 - 60 ; Notice of Cross Motion and supporting papers supporting papers 61 - 90 ; Replying Affidavits and supporting papers 9 I - 92 ; Other ; ( rd+n . iF i= p ) it is, ORDERED that the motion by defendant Southampton Hyospital and defendant Mindy Tran Hoang Nguyen., R.N., for leave to renew and reargue their prior motion for summary judgment dismissing the complaint, which was denied by order of this Court dated July 28,201 1, is granted; and it is further. ORDERED that, upon renewal, the motion by defendants for sum:maryjudgment dismissing the complaint against them is granted. Plaintiff Stephen Kelly commenced this action to recover damage:; for medical malpractice and lack of informed consent. Plaintiffs wife, Susan Kelly, brought a derivative cause of action for loss of services. [* 2] Kelly v Guigliano Index No. 06- 15426 Page No. 2 On January 5,2005, plaintiff was taken by ambulance to defendant Southampton Hospital with complaints of numbness to his hands and feet since the prior day. On January 6,2005, defendant Mindy Tran Hoang Nguyen, a registered nurse, administered a flu shot to plaintiff. According to plaintiffs bill of particulars, Southampton Hospital failed to properly manage plaintiffs complaints and condition in failing to ensure that plaintiff received treatment from medical professionals who could diagnose and treat his condition. Plaintiff also alleges that Nguyen negligently administered a con1:raindicai:ed flu shot to plaintiff, without informed consent, while he was suffering from Guillain-Barre Syndrome ((GBS),thereby worsening hiis condition. In a prior motion, defendants Southampton Hospital and Mindy Tran Hoang Nguyen sought summary judgment dismissing the complaint, arguing that they are not vicariously liable for the acts and omissions of codefendants, and that the claims for medical malpractice and informed consent are withlout merit. By order dated July 28,20 1 1, this Court denied the motion, finding the affidavit submitted by defendant of Dr. Steinberg was inadmissible inasmuch as it was not accompanied by the required certificate of conformity with the laws of the state where it was notarized. Ilefendants now move for leave to renew their prior motion, and upon renewal, for an order granting them summary judgment dismissing the complaint. On this motion, defendants seek to cure the defect in their prior papers and have submitted the proper certificate of conformity. Leave to renew is granted, as failure to iiiclude certificates of authentication pursuant to CPLR 2309 (c) is not a fatal defect and authentication can be secured later amd given nunc pro tunc effect (see Matapos Tech. Ltd v Compania Andina De Comercio Ltda, 68 AD3d 672, 89 1 NYS2d 394 [ 1st Dept 20091; Raynor v Raynor, 279 AD 671, 108 Nk S2d 20 [2d Dept 19511). In support of their motion, defendants submit a copy of the pleadings, an expert affidavit of Dr. Joel Steinberg, medical records regarding plaintiffs treatment at Sout hampton Hospital and excerpts of the parties deposition testimony. Plaintiffs oppose the motion, argumg that ai triable issue of fact remains as to the causal connection between the flu shot and the subsequent exacerbation of plaintiffs GBS. In opposition, plaintiffs submit various medical records, excerpts of the parties deposition testimony, and an expert affirmation of Dr. Allan Hauskemecht. The Court notes that the sur reply filed by plaintiff entitled, Supplemental Affirmation in Opposition was not considered in the determination of this motion (see CPLR 2214; McMuZlin v Walker, 68 AD3d 943,892 NYS2d 12ti [2d Dept 20091; Boockvor v Fischer, 56 AD3d 405,866 NYS2d 767 [2d Dept 20081). In Dr. Steinberg s affidavit, he states that he is a physician duly licensed to practice medicine in the states of New Jersey and Pennsylvania, and that he has held the position of Medical Advisory Board Member and Vice President of the Guillain-Barre Syndrome/CII)P Foundation International. He states that it is his opinion with a reasonable degree of medical certainty that the care rendered to plaintiff by the doctors, nurses and other staff members at Southampton Hospital did not deviate from the accepted standard of care, and that their treatment was not the proximate ciiuse of plaintiffs alleged injuries. Based on his review of plaintiffs medical records, Dr. Steinberg summa.rizes the care and treatment rendered to plaintiff. He states that plaintiff was taken by ambulance to Southampton Hospital on January 5,2005 at approximately 1 1 :55 a.m, with complaints of numbness in both hmds and feet since the prior day. When plaintiff arrived in the emergency room, he was seen by defendant Lawrence Rubin, a physician s assistant, and blood was drawn and a urine sample taken. Rubin discussed the condition of plaintiff with Dr. Guigliano over the telephone and obtained admission orders direcling plaintiff to be admitted to the telemetry unit within the hospital. Plaintiff was admitted to the telemetry unit by Dr. Guigliano to rule out a [* 3] Kelly v Guigliano Index No. 06- 15426 Page No. 3 cerebral vascular accident (CVA) and to treat the hypertension crisis. Plaintiff received the influenza virus vaccine on January 6, 2005 at 6:50 a.m. The diagnosis of GBS was made at 4:55p.m on January 6,2005 after the neurological consultation ordered by Dr. Guigliano. Dr. Steinberg describes GBS as a rare disorder wherein a person s, own immune system damages nerve cells in the body, causing muscle weakness and sometimes paralysis. He states that people can develop GBS after having the flu or other infections, and on verj rare occ,asions, they may develop it days or weeks after getting a vaccination. He states that in 1976, there was a reported small statistical increased occurrence of GBS following administration of an influenza vaccine made to protect against the swine flu virus. Despite numerous studies, the exact reason for the association remains unknown. Since the 19 76 study, multiple studies were done showing an association between getting a flu shot and developing GrBS which suggested that one person out of 1,000,000 vaccinated may be at risk of GBS from receiving the vaccine. Thus, the Center for Disease Control and Prevention (CDC) set forth guidelines indicating patients who should not be vaccinated without first consulting a physician. This included among other people, those who had developed GBS within six weeks of getting a prior influenza vaccine and people suffering from moderate to severe illness with a fever who should wait until they recover before getting vaccinated. Dr. Steinberg opines that there is no evidence to support the contention that any of the doctors, nurses or other staff members were not qualified to provide the treatment required by plaintiff. He states that informed consent was obtained from plaintiff prior to the adrninistration of the flu vaccination. He further states that at the time the flu shot was administered to plaintiff, there was no evidence of him being acutely ill. He states that plaintiffs body temperature was never elevated, that blood cultures and a urinalysis revealed no growth, and that a spinal tap, performed prior to the flu shot, demonstrated no evidence of viral, fungal or bacterial infection. He states that while an active moderate to severe illness would have been considered a contraindication to the administrat ion of the flu vaccine, plaintiff had a resolved cold approximately three days prior to his admission. Therefore, Dr. Steinberg concludes that plaintiff did not have an active infection at the time of treatment, and it was appropriate for the flu vaccine to be administered. He also opines that the medical records demonstrate that timely and appropriate consultations were ordered by the staff at Southampton Hospital. Dr. Steinberg also states that there is no medical evidence to suggest a causal relationship between the flu shot being given to someone who had active GBS and any worsening or lengthening of the symptoms or recovery time frame. Thus, he concludes that Southampton Hospital and Nurse Nguyen Idid not improperly diagnose or delay the proper diagnosis of plaintiff, and that it was proper, appropriate and within accepted standard of medical care for plaintiff to receive the flu vaccine when he did. He fixther states that the administration of the flu shot did not cause or contribute to m y of plaintiffs injuries and was not a proximate cause of his injuries. Here, defendant Southampton Hospital and defendant Nguyen established a prima facie case th,at they did not deviate or depart from accepted medical practice through the submission of plaintiffs medical records, the parties deposition testimony, and the expert affidavit of Dr. Steinberg (see Sundmann v Shapiro, 53 AD3d 537,861 NYS2d 760 [2d Dept 20081; Bengston v Wung, 41 AD3d 625,839 NYS2d 159 [2007]; Jonassen v Stuten Island Univ. Hosp., 22 AD3d 805, 803 NJ S2d 700 [2005]). Therefore:, the burden shifted to plaintiff to come forth with admissible evidence to refute defendants prima facie showing [* 4] Kelly v Guigliano Index No. 06- 15426 Page No. 4 (HoZbrook v United Hosp. Med. Ctr., 248 AD2d 358,669 NYS2d 63 1 [2d Dept 19981; Pierson v Good Samaritan Hosp., 208 AD2d 513,616 NYS2d 815 [2d Dept 19941). An affirmation by plaintiffs expert, Dr. Allan Hausknecht, opines that multiple departures on the part of the hospital from good and standard medical practice caused injury to plaintiff. The report states that plaintiff was not seen by a physician when he arrived at the Southampton Hospital for an inappropriate length of time. It also states that defendant Nguyen could not have obtained a proper informed consent from plaintiff when she gave him the flu shot, because plaintiff h,sd not been diagnosed with GBS. It further states that there was an inappropriate delay in calling for ii neurological consult as plaintiff was admitted to the hospital with a diagnosis of possible CVA. Dr. HauskneLht opines that the delay in obtaining a neurological consultation allowed for the inappropriate action of a nurse giving a flu shot to plaintiff, causing significant and permanent injuries to plaintiff. Dr. Hausknecht describes GBS as an autoimmune disease of the nervous system where nerve cells are attacked as part of an antigen-antibody reaction causing weakness which typically ascends from the lower extremities to the upper extremities and respiratory muscles. He opines that plaintiff had a classic presentation of this condition. He states that over 80% of people who sufFer from GBS have a complete recovery or only minimal permanent findings. He fiu-ther states that there are no studies where a patient diagnosed with active GBS received a flu shot during the course of the disease as the flu shot is totally contraindicated in patients with GBS. He explains that physicians in a free society would never entertain such a study and physicians would never knowingly give a flu shot to a person suffering from GuillainBarr6 disease. Dr. Hausknecht concludes that it is an absolute medical certainty that the flu shot caused worsening of plaintiffs GBS. He states that while there are no articles that can be cited to prove this, the medical logic used in arriving at this opinion is generally and universally accepted. Here, the bare and conclusory allegations in Dr. Hausknecht s affidavit is insufficient to raise a triable issue of fact (see Romano v Stanley, 90 NY2d 444,661 NYS2d 589 [I 9971; Andreoni v Richmond, 82 AD3d 1139,920 NYS2d 225 [2d Dept 201 11; Simmons v Brooklyn Hosp. Ctr., 74 AD3d 1174,903 NYS2d 521 [2d Dept 20101). Furthermore, Dr. Hausknecht s affidavit is devoid of analysis or reference to scientific data (see Abaloa v FfowerHosp., 44 AD3d 522, 843 NYS2d 61 5 [I st Dept 20071; Ramirez v Cofumbia-PresbyterianMed. Ctr., 16 AD3d 238, 790 NYS2d 606 [lst Dept 20051; see generally Furey v Kraft, 27 AD3d 41 6, 8 12 NYS2d 590 [2d Dept 20061). Dr. Hausknecht s affidavit merely concludes that, among other things, the delay in plaintiff seeing a physician at the hospital and the delay in the hospital calling for the neurological consult was inappropriate. He does not address and explain what the accepted standard of medical care is and how defendants deviated from such standard of medical care (see FeZi:: v Beth Israel Med. Ctr., 38 AD396, 833 NYS2d 23 [Ist Dept 20071; Thompson v Orner, 36 AD3d 791,828 NYS2d 509 [2007]; DiMitri v Monsouri, 302 AD2d 420, 754 NYS2d 674 [2d Dept 20031). Accordingly, the motion for summary judgment by defendant Southampton Hospital and defendant Nguyen to dismiss the complaint against them is granted. Dated: .c /:l/Y -FINAL DISPOSITION X NON-
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