Figueroa v St. Vincent's Hosp. of N. Y.
Annotate this CaseDecided on May 3, 2004
Supreme Court, Kings County
JULIA G. FIGUEROA, as Guardian of the Person and Property of PATRICIA MASOTTO, Plaintiff,
against
ST. VINCENT'S HOSPITAL OF NEW YORK and RAJ MURALI, M.D., Defendants.
850/02
Michelle Weston Patterson, J.
Upon the foregoing papers and after oral arguments heard, defendants move for an order granting them summary judgment pursuant to CPLR §3212 and dismissing the complaint.
Plaintiff, Julie Figueroa, as guardian of Patricia Masotto, commenced this medical malpractice action on or about January 23, 2002, alleging that the defendants, St. Vincent's Hospital of New York ("St. Vincent's") and Dr. Raj Murali ("Dr. Murali") failed to timely diagnose and treat Ms. Massotto's perforated colon and also failed to obtain her informed consent. The informed consent cause of action against both defendants was withdrawn on August 28, 2003 by stipulation. Plaintiff contends that due to the defendants failure to timely diagnose and treat the perforated colon, Ms. Masotto became septic and went into cardiac arrest resulting in her current permanent vegetative state. [*2]
On October 20, 1999 Ms. Masotto was admitted to St. Vincent's as Dr. Murali private patient for treatment of a basilar artery aneurysm. Notwithstanding a successful surgery and post operative recovery period, the evening prior to being discharged, which was scheduled for October 30, 1999, Ms. Masotto began complaining of abdominal pain. At approximately 7:00 pm Dr. Murali examined her and immediately ordered x-rays. By 8:28 pm she was in radiology but her breathing was shallow and she became poorly receptive. A CT scan revealed a perforated colon.
Ms. Masotto underwent emergency surgery to repair her colon. She was septic, had feculent free fluid in her abdomen, and was in cardiorespiratory distress. Ms. Masotto never regained consciousness. She has remained in a vegetative state since that time.
A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR §3212[b]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by presenting admissible evidence demonstrating the absence of any material issues of fact (see, e.g., Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (see, Alvarez v. Prospect Hosp., 68 N.Y.2d at 324). However, once this showing has been made, the burden then shifts to the party opposing the motion to tender evidentiary proof in admissible form sufficient to establish the existence of a triable issue of fact (id.). With respect to the submissions of the proponent and opponent alike, "mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" (see, Zuckerman v City of New York, 49 N.Y.2d at 562).
Here, defendants have met their initial burden of showing they are entitled to judgment. Given the symptoms, defendants' expert, Dr. Treat, considers Ms. Masotto's treatment to be timely and well within the acceptable standard of care ( Dr. Treat's Affirmation, Exhibit H, paragraph 2). In Dr. Treat's opinion, it was proper for the St. Vincent's nurse to consult with a physician and then administer IV fluids and Percocet (Dr. Treat's Affirmation, Exhibit H, paragraph 5). He further opines the administration of Demerol and Vistaril by Dr. Murali did not delay Ms. Masotto's treatment or exacerbate her condition. Dr. Treat asserts Dr. Murali's ordering of an abdominal x-ray before requesting a surgical or gastroenterology consultation was appropriate since the consulting physician would have ordered the same x-ray. He further states that patients do not typically arrest from a perforated colon less than three hours after first complaining of stomach discomfort and Ms. Masotto's sudden and dramatic arrest was both unexpected and unforeseeable (Dr. Treat's Affirmation, Exhibit H, paragraph 10). Finally, Dr. Treat asserts that Ms. Masotto's ultimate neurological condition was not caused by improper delay in treatment (Dr. Treat's Affirmation, Exhibit H, paragraph 10).
St. Vincent's claims it is not vicariously liable because Ms. Masotto was Dr. Murali's private patient. Generally, a hospital is not liable for the tortious acts of a patient's private physician (Padula v. Bucalo, 266 A.D.2d 524 [2nd Dept. 1999]). Exceptions exist where hospital staff commits an independent act of negligence or knows that the physicians orders are "so clearly contradicted by normal practice that ordinary prudence requires inquiry into the correctness of the orders" (Cook v. Reisner, 295 A.D.2d 466, 467 [2d Dept. 2002]). Plaintiff [*3]contends that they are asserting independent acts of negligence against the hospital.
Defendants' prima facie showing, however, has been rebutted by the affirmation of plaintiff's expert, Dr. Alan Jaffe, a board certified gastroenterologist (Affirmation in Opposition, Exhibit 1). Upon reviewing the hospital records and depositions, Dr. Jaffe opines that defendants departed from good and accepted medical practice. At 6:10pm, a nurse administered Percocet without the house physician first evaluating the patient. Dr. Jaffe opines that such a narcotic can mask the patient's symptoms and prevent or delay proper diagnosis and that this was a deviation from accepted practice (Affirmation in Opposition, Exhibit 1, paragraph 6). Dr. Jaffe further states according to Dr. Murali's deposition testimony, he suspected an acute abdomen at 7:00 pm and found abnormalities on his examination. He failed to document his finding during this examination. According to Dr. Jaffe an acute abdomen requires emergency measures be taken (Affirmation in Opposition, Exhibit 1, paragraph 8). Moreover, the pain killers (Demerol and Vistaril) ordered by Dr, Murali could mask clinical signs and symptoms of acute abdomen, and could also contribute to the later development of shock by contributing to hypotension (Affirmation in Opposition, Exhibit 1, paragraph 9). It is Dr. Jaffe's opinion that signs of tachycardia, diaphoresis, and perhaps a drop in blood pressure probably existed earlier and a nurse should have detected these signs. According to Dr. Jaffe, earlier treatment would have increased Ms. Masotto's chances for a successful recovery.
Accordingly, the motion for summary judgment is denied.
ENTER:
_______________________ J.S.C.
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