Ragueb v Lutheran Med. Ctr.
Annotate this CaseDecided on September 15, 2014
Supreme Court, Kings County
Bouchra Ragueb, an Infant by Her Father and Natural Guardian, Mohammed Ragueb, and Mohammed Ragueb, Individually, Plaintiffs,
against
Lutheran Medical Center, Donna Almaria Freeman-Tweed, Laura Ann Spano, M.D., Laura Ann Spano, M.D., P.C., Bay Ridge Pediatrics and Adolescent Office, P.C., and Abdulla Alwani, M.D., Defendants.
22864/10
Attorneys for Plaintiff:
Demetra Arniotes Calakos
Law Offices of Arniotes & Calakos, LLP
7206 Fifth Avenue
New York, NY 11209
Attorney for Defendants Donna Almaria Freeman-Tweed,
Laura Ann Spano, MD, Bay Ridge Pediatrics and
Adolescent Office, PC and Abdulla Alwani, MD:
David Bohrer
McAloon & Friedman, PC
123 William Street, 25th Floor
New York, NY 10038
Attorney for Defendant Lutheran Medical Center: Amy C. Lombardo
Dopf, P.C.
440 Ninth Ave., 16th Floor
New York, NY 10001
Carolyn E. Demarest, J.
In this medical malpractice action by plaintiffs Bouchra Ragueb (the infant plaintiff), an infant by her father and natural guardian, Mohammed Ragueb (plaintiff), and Mohammed Ragueb, individually (collectively, plaintiffs), Donna Freeman-Tweed, P.A., sued herein as Donna Almaria Freeman-Tweed (Freeman-Tweed), Laura Ann Spano, M.D. (Dr. Spano), Laura Ann Spano, M.D., P.C. (Spano P.C.), Bay Ridge Pediatrics and Adolescent Office, P.C. (Bay Ridge), and Abdulla Alwani, M.D. (Dr. Alwani) move, under motion sequence number two, pursuant to CPLR 3212 (b), for summary judgment dismissing plaintiffs' complaint as against them and severing this action as against the remaining defendants. Lutheran cross-moves, under motion sequence number three, pursuant to CPLR 3212 (b), for summary judgment dismissing plaintiffs' complaint as against it.
BACKGROUND
On May 14, 2009, the infant plaintiff, who was born on XX/XX/XXX and was then over two years old (34 months old), cut her left fifth finger (i.e., the pinky finger) on a piece of glass and starting bleeding. Plaintiff immediately took the infant plaintiff to her pediatrician, Dr. Alwani, who told him to bring the infant plaintiff to the nearest emergency room for sutures. Plaintiff brought the infant plaintiff to the emergency room at Lutheran, where she was seen by Freeman-Tweed, a physician's assistant, who was [*2]employed by National Emergency Services (NES), which, pursuant to a contract with Lutheran, provided medical services to the emergency department at Lutheran.
Freeman-Tweed performed a physical examination of the infant plaintiff, and at 3:08 P.M. that day, she diagnosed her with a 1.5 cm. laceration to her left fifth finger at the metacarpal phalangeal crease. Lutheran's Emergency Department Record for the infant plaintiff documented that Freeman-Tweed considered whether the infant plaintiff had sustained a tendon injury and that she found no tendon injury. According to Freeman-Tweed, she irrigated the wound, and, after irrigating it, she looked for a possible tendon injury and "checked for range of motion against resistance," and she also checked for sensation by touching the finger and watching the infant plaintiff's reaction to touch (Freeman-Tweed's Dep. Transcript at 41-43). Freeman-Tweed specifically testified, at her deposition, that she found no tendon injury (Id. at 42). She recorded in Lutheran's Emergency Department Record that "there was full range of motion," that "sensation was intact," that pulses and muscle strength were also intact, and that "there was good capillary refill." She administered Bacitracin ointment to the affected area and sutured the laceration with a single layer of stitches.
Freeman-Tweed documented in Lutheran's Emergency Room Record that she discussed the infant plaintiff with Dr. Spano, who was the emergency medicine attending physician at Lutheran at that time and an employee of NES. Freeman-Tweed explained, at her deposition, that she presented her assessment and plan regarding the infant plaintiff to Dr. Spano (Id. at 45). Dr. Spano did not actually view or have direct contact with the infant plaintiff (Id. at 45, 50; Dr. Spano's Dep. Transcript at 21). As documented in the Discharge Instructions signed by plaintiff, the infant plaintiff was discharged from Lutheran at 4:08 P.M. The Discharge Instructions directed the infant plaintiff to follow up with Dr. Alwani for removal of the sutures in 10 to 14 days.
Seven days later, on May 21, 2009, plaintiff brought the infant plaintiff back to Dr. Alwani's office. Dr. Alwani removed the sutures, applied Bactericidal dressing, and noted that the left pinky suture base was clean. According to Dr. Alwani, he examined the infant plaintiff's finger and noted that she was holding the finger in a mildly neutral bending position and that there was "very mild flexion" (Dr. Alwani's Dep. Transcript at 55). He did not test for range of motion because the infant plaintiff was screaming (Id. at 56). Dr. Alwani told plaintiff that if he thereafter observed that the infant plaintiff could not move the finger or any other problem, he should bring her back to his office (Id. at 53, 57).
On May 29, 2009, plaintiff brought the infant plaintiff back to Dr. Alwani's office, complaining that she was then not moving the finger (Id. at 63). Dr. Alwani told plaintiff that the infant plaintiff needed to be referred to Mukund R. Patel, M.D. (Dr. Patel), a hand surgeon, and to be seen right away or within a day or two (Id. at 65). Dr. Patel, who was the sole shareholder of Comprehensive Hand Surgery, P.C. (Comprehensive Hand Surgery), saw the infant plaintiff on the next weekday, June 1, 2009, at which time he [*3]diagnosed her with a flexor tendon injury. Dr. Patel informed plaintiff that the infant plaintiff could have surgery to repair the tendon at that time, and, if the surgery worked, then she would not need to have a tendon graft in the future (Dr. Patel's Dep. Transcript at 53).
Dr. Patel performed a repair of the flexor digitorum profundus tendon of the infant plaintiff's left pinky finger on June 2, 2009 at Long Island College Hospital. At a follow-up visit on June 10, 2009, when Dr. Patel removed the infant plaintiff's stitches after the surgery, he noted that the infant plaintiff could not bend the finger and that it was stiff (Id. at 63-64). Dr. Patel removed a cast on the infant plaintiff on June 29, 2009 and referred her to a physical therapist (Id. at 71-72). Plaintiffs assert, in their bill of particulars, that the infant plaintiff was required to attend physical therapy for over one month and is still unable to have normal hand function.
Consequently, on September 16, 2010, plaintiffs filed this action against Lutheran, Freeman-Tweed, Dr. Spano, Spano P.C. (a former professional corporation which was formed by Dr. Spano for financial management purposes while she was working at Lutheran), Dr. Patel, Comprehensive Hand Surgery, Long Island College Hospital, Continuum Health Partners, Inc. (Continuum Health Partners) (a larger system of hospitals of which Long Island College Hospital is a member), Bay Ridge (the professional corporation under which Dr. Alwani practices and of which he is the sole shareholder), and Dr. Alwani. The defendants interposed their respective answers, and discovery was conducted, including the disclosure of medical records, expert disclosure, and the taking of depositions. Plaintiffs filed their note of issue on September 30, 2013.
By a notice of motion filed on November 27, 2013, under motion sequence number one, Dr. Patel and Comprehensive Hand Surgery moved for summary judgment dismissing plaintiffs' complaint as against them. By an order dated April 10, 2014, the court granted Dr. Patel and Comprehensive Hand Surgery's motion, without opposition.
By a notice of cross motion filed on March 11, 2014, Long Island College Hospital and Continuum Health Partners cross-moved, under motion sequence number four, for an order so-ordering a stipulation of discontinuance, dated October 14, 2013, in which plaintiffs agreed to discontinue their action as against them and to remove them as named defendants in the caption of this action. On April 10, 2014, the court granted this cross motion, without opposition, and so-ordered the stipulation of discontinuance (which was filed with the Kings County Clerk on April 14, 2014), thereby discontinuing, with prejudice, plaintiffs' action as against Long Island College Hospital and Continuum Health Partners. DISCUSSION
In addressing the instant motion and cross motion, the court notes that "[t]he requisite elements of proof in a medical malpractice action are a deviation or departure from accepted standard of care and evidence that the deviation or departure was a proximate cause of injury or damage" (Arocho v D. Kruger, P.A., 110 AD3d 749, 750 [2d [*4]Dept 2013]; see also Mitchell v Lograno, 108 AD3d 689, 691 [2d Dept 2013]; Lau v Wan, 93 AD3d 763, 765 [2d Dept 2012]; Stukas v Streiter, 83 AD3d 18, 23 [2d Dept 2011]; Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006 [2d Dept 2010]; Hamilton v Good Samaritan Hosp. of Suffern, NY, 73 AD3d 697, 698 [2d Dept 2010]; Deutsch v Chaglassian, 71 AD3d 718, 719 [2d Dept 2010]; Geffner v North Shore Univ. Hosp., 57 AD3d 839, 842 [2d Dept 2008]). " A defendant . . . moving for summary judgment in a medical malpractice action has the initial burden of establishing, prima facie, either the absence of any departure from good and accepted medical practice or that any departure was not the proximate cause of the alleged injuries'" (Mitchell, 108 AD3d at 691, quoting Lau, 93 AD3d at 765; see also Shichman v Yasmer, 74 AD3d 1316, 1318 [2d Dept 2010]; Larsen v Loychusuk, 55 AD3d 560, 561 [2d Dept 2008]; Sandmann v Shapiro, 53 AD3d 537, 537 [2d Dept 2008]).
"In opposition, a plaintiff must submit evidentiary facts or materials to rebut the defendant's prima facie showing, so as to demonstrate the existence of a triable issue of fact" (Deutsch, 71 AD3d at 719; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; DeLaurentis v Orange Regional Med. Ctr.-Horton Campus, 117 AD3d 774, 775 [2d Dept 2014]). "General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant['s] . . . summary judgment motion" (Alvarez, 68 NY2d at 325; see also Arocho,110 AD3d at 750; Swanson v Raju, 95 AD3d 1105, 1106 [2d Dept 2012]).
Plaintiffs' claims as against Freeman-Tweed and Dr. Spano, as set forth in their bill of particulars, are that they failed to diagnose a flexor tendon injury during the infant plaintiff's presentation to Lutheran's emergency room on May 14, 2009. With respect to Dr. Alwani, plaintiffs claim that he allegedly failed to perform a proper suture removal during the infant plaintiff's May 21, 2009 office visit and that he failed to timely refer the infant plaintiff to a hand surgery specialist during the infant plaintiff's office visits on May 21, 2009 and May 29, 2009. Plaintiffs' claim as against Lutheran is based solely upon its vicarious liability on the ground of apparent or ostensible agency for the alleged malpractice of Freeman-Tweed and Dr. Spano since, although Freeman-Tweed and Dr. Spano were employed by NES, plaintiffs came to the emergency room seeking treatment for the infant plaintiff from the hospital and not from a particular physician of their choosing (see Gardner v Brookdale Hosp. Med. Ctr., 73 AD3d 1124, 1124 [2d Dept 2010]).
In support of their motion, Freeman-Tweed, Dr. Spano, Spano P.C., Bay Ridge, and Dr. Alwani have submitted the affirmation of their medical expert, Saul Melman, M.D. (Dr. Melman), who is a physician licensed to practice medicine in New York and is board certified in emergency medicine. Lutheran, in its cross motion, relies upon Dr. Melman's affirmation, and in its reply affirmation, Lutheran has further submitted the affirmation of its medical expert, Joseph La Mantia, M.D., FACEP (Dr. La Mantia), who [*5]is a physician licensed to practice medicine in New York and is board certified in emergency medicine.
Dr. Melman, in his expert affirmation, asserts that Freeman-Tweed conducted a proper evaluation of the infant plaintiff and took a full, proper, and informative history of her before performing an examination. He further asserts that Freeman-Tweed's examination appropriately consisted of a wound exploration, range of motion testing, muscle strength testing against resistance, and an evaluation of sensation and vascular testing. He states that based upon the results of Freeman-Tweed's examination, which revealed normal full range of motion and normal flexor muscle strength against resistance, she properly ruled out the presence of a flexor tendon injury, appropriately diagnosed the infant plaintiff with a 1.5 cm. laceration, and properly treated the laceration with sutures.
Dr. Melman notes that the signs and symptoms of a flexor tendon injury include an extended finger with an inability of the patient to flex the finger. He points out that in this case, the infant plaintiff had a normal physical examination since observation of the finger at rest, and muscle strength and range of motion testing were all normal. He thus opines, with a reasonable degree of medical certainty, that the infant plaintiff had a clinically silent flexor tendon injury at the time of her evaluation by Freeman-Tweed since the degree of flexion tendon injury at that time was insufficient to cause a functional deficit on examination.
Dr. Melman explains that it is an established medical fact that partial flexor tendon injuries may initially be clinically silent, and that the degree of injury may be minimal without deficits on examination. He further explains that rupture or complete injury to the tendon may first occur days to weeks after the initial injury. He sets forth his opinion that since the injury was silent, with the infant plaintiff having full range of flexor muscle motion and normal flexor tendon strength against resistance upon testing by Freeman-Tweed, there was no departure by Freeman-Tweed in not diagnosing a flexor tendon injury. He also opines that in the absence of a functional deficit on examination, there was no medical indication to order further testing or to refer the infant plaintiff to a hand surgeon, and, therefore, there was no departure by Freeman-Tweed in not doing so.
Dr. Melman further opines, with a reasonable degree of medical certainty, that Freeman-Tweed appropriately discussed the infant plaintiff with Dr. Spano prior to discharging her. He explains that a physician's assistant is an independent, licensed medical provider that is capable of assessing patients on her own, and that in an emergency room setting, it is not necessary for an attending physician to see every patient. He sets forth that where a patient presents with a straightforward issue, like the laceration with which the infant plaintiff presented here, without any functional deficits at the time of the evaluation, it is routine and within the accepted standards of emergency medicine care for an attending physician to rely on the physician's assistant's assessment, without performing her own independent examination. He concludes that here, based on the [*6]infant plaintiff's complaints, evaluation, and diagnosis, there was no need for Dr. Spano to see her, and that her discussion with Freeman-Tweed was sufficient.
Dr. Melman also opines that Dr. Alwani's care and treatment of the infant plaintiff when he removed her sutures on May 21, 2009 was appropriate since he found mild flexion on that visit and plaintiff did not indicate that the infant plaintiff was having difficulty moving her finger at that time. He points out that plaintiff first advised Dr. Alwani that the infant plaintiff was not moving her finger on the May 29, 2009 visit, and that Dr. Alwani immediately and appropriately referred her to Dr. Patel to be seen on an urgent basis. He explains that hand flexor tendon injuries are generally surgically repaired two to three weeks after the date of injury, and notes that the infant plaintiff underwent a repair by Dr. Patel within this time period. He, therefore, opines that the care and treatment rendered to the infant plaintiff by Freeman-Tweed, Dr. Spano, and Dr. Alwani was appropriate in all respects and that nothing that they did or failed to do was a proximate cause of her injuries.
Thus, Freeman-Tweed, Dr. Spano, Spano P.C., Bay Ridge, and Dr. Alwani, by Dr. Melman's expert affirmation and the submitted deposition testimony and medical records, have established, prima facie, that their treatment of the infant plaintiff conformed to good and accepted medical practice (see Arocho,110 AD3d at 750-751; Hamilton, 73 AD3d at 697; Dunn v Khan, 62 AD3d 828, 829 [2d Dept 2009]). This shifted the burden to plaintiffs to raise a triable issue of fact (see Feliz, 38 AD3d at 397).
Plaintiffs, in their opposition papers, do not set forth any arguments opposing summary judgment dismissing their complaint as against Dr. Alwani or Bay Ridge. Therefore, since no triable issue of fact has been raised with respect to Dr. Alwani and Bay Ridge, summary judgment dismissing plaintiffs' complaint as against them must be granted (see CPLR 3212 [b]).
As to Spano P.C., while Spano P.C., as noted above, is the former professional corporation of Dr. Spano and the infant plaintiff was not a private patient of Spano P.C., plaintiffs, as set forth in a letter to the court dated May 19, 2014, oppose dismissal of their complaint as against Spano P.C. They base their opposition on Dr. Spano's deposition testimony that she did not recall if the checks paid by NES for her work at Lutheran were issued to her or to Spano P.C., but she believed that they were issued to her as a physician (Dr. Spano's Dep. Transcript at 14). Plaintiffs contend that this indicates that Dr. Spano was not certain if NES paid her in her own name or in the name of Spano P.C.
In opposition to the motion with respect to Freeman-Tweed, Spano, and Spano P.C., and Lutheran's cross motion, plaintiffs have submitted the affirmation of their medical expert, Ira Mehlman, M.D. (Dr. Mehlman), a physician licensed to practice medicine in New York who is board certified in emergency medicine. Dr. Mehlman opines that Freeman-Tweed departed from good and accepted medical practice by failing to appreciate the clinical significance of the history elicited from plaintiff, failing to perform a complete physical examination of the infant plaintiff, failing to have the infant [*7]plaintiff seen and examined by Dr. Spano, failing to appropriately and completely treat the infant plaintiff's injury by treating it as a superficial laceration without including in the differential diagnosis possible serious tendon and nerve injuries, and failing to timely consult with or refer the infant plaintiff to a hand surgeon on the day of treatment or the following day at the latest. He further opines that these departures were a substantial factor in causing injuries to the infant plaintiff, including the loss of functionality of her left fifth finger.
In opining that Freeman-Tweed did not appreciate the clinical significance of the history elicited from plaintiff, Dr. Mehlman states that this history was that there was a deep laceration of the left fifth finger. He asserts that a tendon injury should have been considered as a possibility within the differential diagnosis and that an appropriate examination should have been performed to rule out a tendon injury. He states that, instead, Freeman-Tweed treated the infant plaintiff's injury as a superficial laceration.
Dr. Mehlman points to Freeman-Tweed's notes in Lutheran's Emergency Department Record, which contained the entry that "[t]he following Life or Limb Threatening Differential Diagnosis were considered: Foreign Body Retention; Tendon Injury; Nerve Injury; Vascular Injury" (emphasis added). Despite the fact that this note expressly states that a tendon injury was, in fact, considered, Dr. Mehlman characterizes this entry as an "automatically populated entry from the electronic medical record system" in use at Long Island College Hospital at the time. He asserts that while this entry suggested that Freeman-Tweed should perform an examination specific to ruling out a tendon injury, no such examination was conducted by her.
" [O]pinion evidence [,however,] must be based on facts in the record or personally known to the witness'" (Hambsch v New York City Tr. Auth., 63 NY2d 723, 725 [1984], quoting Cassano v Hagstrom, 5 NY2d 643, 646 [1959], rearg denied 6 NY2d 882 [1959]). Here, Dr. Mehlman's opinion is wholly unsupported by any facts in the record. Freeman-Tweed's entry in Lutheran's Emergency Department Record, as set forth above, shows that she did, in fact, consider a tendon injury. Furthermore, while Dr. Mehlman opines that Freeman-Tweed failed to perform a complete physical examination to ascertain if the infant plaintiff had a tendon injury, the very deposition testimony cited by him shows that Freeman-Tweed specifically testified that she "looked for any possible tendon injury" and "checked for range of motion against resistance," and that she found that there was "no tendon injury" (Freeman-Tweed's Dep. Transcript at 41-42).
Dr. Mehlman complains, however, that Freeman-Tweed's notes in Lutheran's Emergency Department Record are cursory, and he describes her examination of the infant plaintiff as superficial. He points to Freeman-Tweed's entry set forth above regarding her consideration of a tendon injury, recorded by her at 3:07 P.M., and a second entry, also recorded by her at 3:07 P.M., which states: "Wound Exp No FB, Debris or Tendon Injury; Pulses Intact/CBR
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