Susco v St. Joseph's Hosp. & Health Ctr.

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Susco v St. Joseph's Hosp. & Health Ctr. 2017 NY Slip Op 33249(U) December 1, 2017 Supreme Court, Onondaga County Docket Number: 2017EP667 Judge: James P. Murphy Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] ONONDAGA COUNTY CLERK 12/12/2017 01:47 PM INDEX NO. 2017EF667 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/12/2017 INDEX NO. 20 l 7EF667 NYSCE• Doc. NO. 24 RECEIVED NVSCEF: . 2/01/2017 STATE OF NEW YORK SUPREME COURT COUNTY OF ONONDAGA SANDRA M. SUSCO, Individually and as the Execub.ix of the ESTATE OF PAULE. SUSCO, Plaintiffs, J vs. ST. JOSEPH'S HOSPITAL AND HEALTH CENTER, DECISION Index No. 2017EP667 RJINo. 33-17-1286 Defendant. APPEARANCES: ROBERT F. JULIAN, P.C. By: Robert P. Julian, Esq. Attorneys for Plaintiffs 203 7 Genesee Street Utica, NY 13501 P. GALE, GALE & HUNT, LLC By: Minla Kim, Esq. · Attorneys fur Defendant P.O. Box 6527. Syracuse, NY 13217-6527 MURPHY,J. ·' This aotiqn wns commenced by the electronic filing of a Summons and Complaint on !Iv February 14, 2017, by Plaintiff Sandq1 M. Susco, Individually and as the Executrhc of the Estate of Poul F. Susco (''l'lalntlfl") against Defendant St. Joseph's Hospital and Health Center ("Defendant"). Defendant, now, by Notice of Motion dated Ap~ll 24, 2017, seeks· an Order to dismiss Plaintlff'.s Complaint pursuant to C.P.L.R. §§ 3211, 3016 (a) and 214-a. 4 of 9 [*FILED: 2] ONONDAGA COUNTY CLERK 12/12/2017 01:47 PM INDEX NO. 2017EF667 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/12/2017 INDEX NO. Jioc. NYSCE NO. 24 017EF667 RECEIVED NYSCEF: l /01/2017 By way of background, Plaintiff alleges that she is the Executrix of the E.qtate of Paul B. S11sco who died on August_ 16, 2014. Plaintiff was granted Preliminary Letters by the Onondaga County Surrogate's Court on February ·14, 2017. The Complaint alleges that Paul F. Susco ("decedent") received a thomc6tomy with aortic valve replacement by Dr. Zhoum on J December 27, 2011, at St. Joseph's Hospital and Health Center, and that a Sorh1 heatet·:cooler \Vas used in the procedure. The decedent experienced complications, including fevers and infection. Thereafter, in May,_ 2013, decedent was diagnosed with Mycobacterium Avium and continued to be seen and 1rcated at St. Joseph's. He ·was re-admitted to the hospital o.nAprll 2, 2014, with a fever and thereafter, on A11g11st 16, 2014, dooedent was pronounced dead while an inpatient at the hospital. Se6, Affidavit ofMinla Kim, Esq., dated April 24,_ 2017, Exhibit A, S11mmons and Complaint. p The Complaint further alleges that on July 15, 201 S, the FDA announced that the device used in decedent's surgery was recalled, however, St. Joseph's did mit advise Plaintiff or decedent of tho recall until December 8, 2016. 111e first cause of action of the Complaint alleges as follows: 16, The Defendant St. Joseph's Hospital Health Center, its _ _ _ _1_ 1_ _ _ _ _ _ _ _e~1~np!izy,~genll!, and/or servantS1..\¥as.negligc.nt,_deldate"'-------i------ ftom the standard of care and departed from good, usual, customary and accopted practice in tho ccmti1111ou.s oare nnd lreahncnt of the Decedent from Dejcember27, 2011 as follows: I) Failing to prop orly monitor the Sorin m!lchine ("Pmnp 41 "). .2) Failing lo properly diagnose and treat the Decedent's Infection. 2 5 of 9 [*FILED: 3] ONONDAGA COUNTY CLERK 12/12/2017 01:47 PM INDEX NO. 2017EF667 NYSCEF DOC. NO. 27 poc. NYSCE• RECEIVED NYSCEF: 12/12/2017 INDEX NO, 20l7EF667 RECEIVED NYSCEF: '2/01/2017 NO. 21 3) 17. J Falling to follow good, usual, customary and accepted practice in the treating of the Plaintiff's decedent. By reason of the premises, the Plaintiff, on behalf of the Estate of Paul E. Susco, seeks judgment agahist the Defendqnt ST. JOSEPH'S HOSPITAL HEALTH CENTER, in' an mount to be detennined by a jury upon the trial of the issues herein. The second cause of action of the Complaint alleges as follows: 19. the Defendant knew, or show have known at the time when the Estate could have pursued a cause of action against the manufacturer and the Defendant Hospital for negligence, strict liability, manufacturing defecis, violation ofimplied and explicit warranties, and other· tort causes of action including neglige1ice and malpractice. 20. · The Defendant Hospital was awal'e or should have been aware of the FDA recall ori July IS, 20 I 5. , 21. The Defendant Hospital failed to advise the 'Plaintiff of its knowledge until December 8, 2016, after tho causes of action against the manufacturer and too hospital have, upon iufonnation and belief, expired. 22. The Defendant did knowingly withhold this infonnation. l' The third cause of action of the Complaint alleges as fullows: 24. The Defend.ant Hospital w&S aware or should have been aware of the FDA recall on July 15, 201S and the Defendant did negligently wiihhotd this information. 25. The Defendant by virtue of its joint and several negligence ~d fraud caused the Decedent's conscious pain and suffering, medical expense, loss of income, loss of quality of life, fear ofimmin~nt death, and caused th6 Estate lost income, vicariously pain and suffering aud fiu:1.eral . ei<penses, thereby damaging said l'laintiffin a fair and . reasonable amount to be detennined by a jury, together with interest and costs. 3 6 of 9 [*FILED: 4] ONONDAGA COUNTY CLERK 12/12/2017 01:47 PM INDEX NO. 2017EF667 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/12/2017 INDEX NO. 2017EF667 NYSCE C. NO. 24 RF.CEIVED NY$CEF: 26. I The Defendant's negligence deprived the Plaintiff of the claims set forth above for negligence and wrongfhl death, loss ofincome, loss of parental gllidance and all appropriate negligence and wrongful death claims; as well as breach of warra11ty, breacli of ccntract and all appropriate causes as and against the manufaol\lrer. See, Affidavit in Opposition of Stephanie Palmer, Esq., swom Exhibit A, Letter to Decedent dated December 8, 2016. to on September 5, 2017, In summaty, Plaintiff alleges the pe11lnent dates, including the datos of Defendant's treatment of decedent, as follows: 12/27/11 5/2013 412f14 p 8/16/14 7/15/15 12/8/16 2/14117 .. - Decedent's surgery at Defendant St. Joseph's Hospital utilizing the Sorin device . Decedent diagnosed with mycobacterium avium. Decedent was re-admitted to Defendant St. Joseph's Hospital. Decedent dies while an inpatient at Defendant St. Joseph's Hospital FDA announces recall of Sorin device. _ Defei1dant St. Joseph's Hospital notifies Plaintiff of the FDA recall. See, Letter dated December 8, 2016, supra. Complaint flied in the Onondaga County Clerk's Office. In support, Defendant seeks to dismiss Plaintiffs first cause of action alleging medical malpractice, contending that Plaintiff's action ls witimely and was not brought within the applicab1e statute of limitations of two years and six months pmsuant to C.P .L.R. § 214-a. "Defendant further seeks to dlsmlssJ~lalnliffs.seco11d_cause.ofactionrcontendi!Jg.lhat-P.la!ntifCs second cause of action fails to state a cause of action for a purported claim of fraud. Defendant also contends that'Plaintltrs purported claim of wrongt\11 dentll as alleged In the third cause of action is govemed by a two-year stalllle of limitations and ls untimely. 4 7 of 9 2/01/2017 [*FILED: 5] ONONDAGA COUNTY CLERK 12/12/2017 01:47 PM INDEX NO. 2017EF667 NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 12/12/2017 INDEX NO. 2017EF667 RECEIVED NYSCEF: NYSCE ' poc, NO, 24· 2/01/2017 In opposition, Plaintiff's.attorney asserts that they believe the above a_ctton was timely commenced, however, stresses that they have iiot had an opportunity to conduct any discovery to date, specifically. involving Defendant's use of the Sorin heater-cooler device during decedent's heart surgery that allegedly caused the Mycobactcrium Avimn infeotions which caused the J decedent's death. Plaintiff further asserts that in order to prosecute its claim for fra1id, they need to cQnduct discovery to prove when and what the Defendant knew of problems with the Sorin device, specifically as It relates to a1leged warnings and subsequent recall of the device by the FDA on July 15, 2015. Plaintiff does not know what transpired between July 15, 2015, and December 8, 2016, whl'Jl Defendant undertook the duty to notify Plaintiff of the FDA recall. The Jaw is well established that on a motion to dismiss, the pleading8 are necessarily afforded a liberal construction and that plahiliffs are accorded the b6nefit of every possible, p favorable inference. See, Goshm v. MutmtlLife llls111wwc Company ofNew York~ 98 N.Y.2d 314 (2002). C.P.L.R. § 3211 (d), titled "Facts unavailable to opposing party," provides: Should it appell!" from affidavits submitted in opposition to a motion made under subdivision (a) or (b) that facts essential to justify opposition may exist but cannot then be stated, the court _ _ _ _ 1_ 1_ _ _ _ _~m,,....,oy- the motion,_._._~or..may..Jltder_._,_,_disclos11re..to_be.had.and.-------1-----may make such other order as may be just. Here, in the first lnsiance, the Court finds dial Defendant fails to meet its b11rdc11 showing that the alleged malpractice claim is untimely. Decedent died on August 16, 2014, wl1lle an lnpatient at Defeudnut St. Joseph's Hospital, Plaintiff commenced.this action on Febrnary 14, 2017, which is within two years and six months and, therefore, arguably t_imely. W11at is nuclear however; is whether the treatm'!lnl and care rendered by Defendant througl1 the years was · . continuous trea1ment, including Defendt111t's use of the Sorin machine in 2~11, and whether it contributed to decedent's condition that 11ltimately led to his death. 5 8 of 9 [*FILED: 6] ONONDAGA COUNTY CLERK 12/12/2017 01:47 PM NYSCEF DOC. NO. 27 INDEX NO. 2017EF667 RECEIVED NYSCEF: 12/12/2017 INDEX NO, NYSCE . DOC, NO, 24 RECEIVED NYSCEJ!: In this regard, the Court fmds compelling Plaintiff's arguments that facts may exist in support ofher claim, but cannot now be stated as such f~cta are exclusively in the possession of Defendant, specifically as it relates to the timing and recelpt of the alleged warnings issued by the FDA and subsequent recall of the Sorin device. Plaintiff should have an opporhmity to ~plore J all facts 011 tho issues pending before the Court. Accordingly, based on all of the foregoing, the Court denies Defenda11t's motion pursuant to C.P.L.R. § 3211 (d). See, Castag11azzi v. Schlecker, 129 /l..D.2d 605 (2d Dept. 1987). The above constitutes the Decision of the Cotirt. Plaintiff's attorney shall electronically file a pl'oposed Order to the Court, on notice to opposing counsel, within fifteen (15) days of the date of this Decision. Dated; Decembe1· _J_, 2017 P ENTER M 6 9 of 9 2017E~'667 2/01/2017 .

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