Fellin v Sahgal

[*1] Fellin v Sahgal 2004 NY Slip Op 51048(U) Decided on July 13, 2004 Supreme Court, Kings County Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2004
Supreme Court, Kings County

ROSA FELLIN and LOUIS FELLIN, As Conservators of the Property of DAVID FELLIN, Conservatee, and DAVID FELLIN, Individually, Plaintiffs,

against

VIVEK S. SAHGAL, M.D. and THE LONG ISLAND COLLEGE HOSPITAL, Defendants,



4129/1993

Melvin S. Barasch, J.

Defendants move for an order setting aside the jury's verdict rendered on May 16, 2003 and directing a judgment nothwithstanding the verdict dismissing the case as to defendant Long Island College Hospital ("LICH") for failure to make a prima facia showing of departure or causation, or, in the alternative granting LICH a new trial on the issues determined against it on the basis that the jury verdict was against the weight of the credible evidence or, in the alternative, granting a new trial on all issues on the basis that LICH did not receive a fair trial due to the introduction of testimony from plaintiff's third witness, Dr. Lawrence Shields and due to the actions of plaintiff's attorney and said Dr. Shields which LICH maintains were improper, inflammatory and caused extreme prejudice.

Background

David Fellin ("Fellin") worked as an elevator repairman for LICH. On January 31, 1991, while at his job, he suddenly experienced pain in his back. At 11:40 A.M. that day, Fellin walked into LICH's emergency department and complained that he felt pressure on his back. Fellin was then age 23, was otherwise healthy and had no prior medical history. His vital signs were taken at 12:30 P.M. and were normal, including a blood pressure reading of 130/90. At about 1:00 P.M., Fellin reported that the back pain had subsided, but he felt "a lot of headache" and he had vomited. At 1:30 P.M., the plaintiff's vital signs and blood pressure were still essentially normal. Nevertheless, he continued to experience a lot of pain in his head and the [*2]vomiting had not ceased. At approximately 2:00 P.M., plaintiff underwent a gross neurological examination by defendant Dr. Vivek Sahgal ("Sahgal"). This exam revealed that the plaintiff was alert and oriented, that both pupils were equally reactive, and that he had normal movement in his extremities. His blood pressure still was within normal limits, but because of his continued complaints of back pain radiating up to his head, Sahgal ordered a CAT scan to be performed on Fellin.

At about 2:45 to 3:00 P.M., before the CAT scan test could be done, Fellin's blood pressure spiked to an unacceptably high level, and he suddenly deteriorated into a comatose state. Brain surgery was ultimately performed to save Fellin's life. Although he survived, he remains in a chronic debilitated state. It was subsequently determined that at some time before 11:40 A.M. Fellin suffered an initial bleed (subarachnoid hemorrhage) from an aneurysm located in his right middle cerebral artery, and at 3:00 P.M. the aneurysm ruptured completely, thereby discharging a massive amount of blood into the brain. The blood and resulting pressure caused a shift and herniation of the plaintiff's brain stem.

The Initial Trial

Following the initial trial held before Hon. Jules Spodek, the jury was asked to consider two theories of liability: (1) whether LICH committed malpractice by failing to obtain a timely CAT scan and operate immediately without obtaining further testing, and (2) whether Sahgal and/or LICH committed malpractice by not giving any medications to reduce the plaintiff's blood pressure prior to 3:00 P.M. The jury returned a verdict in favor of the plaintiffs on both issues, and awarded substantial damages.

Defendants moved post verdict to set aside the verdict and the Supreme Court determined that there was legally sufficient evidence to support the jury verdict on the issue of delayed treatment, but that it was against the weight of the evidence. Thus, the court set aside the verdict on that cause of action and ordered a new trial. As for the issue of giving medications to lower the plaintiff's blood pressure, the Supreme Court granted that branch of the defendants' motion which was to dismiss that cause of action, finding that there was legally insufficient evidence to support the jury's determination.

On appeal, the Second Department (296 AD2d 526) disagreed with the trial court to the extent of its determination that there was legally insufficient evidence to support the jury's conclusion that the defendants were liable for their failure to administer medication (specifically, the drug "mannitol") at some point before the plaintiff experienced a catastrophic brain aneurysm. The appellate court found that there was a valid line of reasoning by which one could have concluded that the defendants' failure to administer Mannitol during the relevant period constituted a departure from good and accepted medical practice. That finding was predicated upon the testimony of plaintiffs' expert, Dr. Lawrence Shields, who specifically testified that Mannitol should have been administered to the plaintiff at an early stage to reduce intracranical pressure. In Shields' opinion, this medication, along with certain other non-medicinal efforts, would have "bought some additional time." It is this additional time or "window of opportunity" which was crucial since it could have allowed the pre-operative procedures to have been completed without concomitantly running an inordinate risk of severe neurological impairment.

However, as the Second Department pointed out, the defendants' expert opined that [*3]Mannitol was contraindicated because during the relevant time period, the plaintiff was awake, not confused, and his pupils were equal in size, all of which indicated that he did not have a "mass inside [his] head that's on the verge of ruining [him] or taking [his] life." Most significantly, the defense maintained that Mannitol should not be given where, as here, the patient's blood pressure readings were within normal parameters.

The Second Department reasoned that the fact that there was disagreement between Shields and the defense experts regarding the propriety and/or efficacy of administering Mannitol was not a basis upon which to conclude that the evidence on this issue was legally insufficient. The appellate court nonetheless found that the defendants adduced ample evidence to demonstrate that the failure to administer Mannitol did not constitute malpractice. The majority of proof, in fact, indicated that Mannitol was contraindicated in this case based upon the fact that the plaintiff's blood pressure readings were all within normal limits. Furthermore, even the plaintiff's expert conceded that Mannitol's blood pressure-reducing properties could have led to "dire consequences" for Fellin. In short, the defendants' evidentiary position on this issue was so "particularly strong" as compared to that of the plaintiff that the jury determination did not comport with a fair interpretation of the evidence adduced. Therefore, the appellate Court used its discretion to set aside the jury's verdict as to that issue.

Regarding the issue of delayed treatment, the Second Department agreed with the Supreme Court that there was legally sufficient evidence to support the jury verdict but that it was against the weight of the evidence. The court found that there was a valid line of reasoning by which one could conclude that the defendants departed from good and accepted medical practice by failing to timely treat Fellin. The evidence suggested that the defendants actually did very little to assess and/or treat Fellin's condition from the time he first appeared at the emergency room until almost four hours later, when his situation rapidly deteriorated into a life-threatening scenario. Nevertheless, given that Fellin's vital signs were normal throughout most of the period in question, there was also considerable evidence to indicate that the defendants' "wait and see" attitude was reasonable and proper.

Another crucial matter discussed in the appellate court's decision was the issue of proximate cause. The Second Department pointed out that, even assuming that the delay in treatment was a departure from good and accepted medical practice, the evidence further suggested that the departure may not have been the proximate cause of Fellin's injuries. The trial court had noted that Fellin required brain surgery, a process which requires extensive preparation time and one which should not be undertaken without considerable caution. In other words, there may simply not have been sufficient time to prepare Fellin and perform the necessary surgery before he experienced his second and catastrophic brain aneurysm. As the appellate court further noted, even after Fellin's condition became acute, it still took almost 2 1/2 hours before actual surgery could begin.

Given that the evidence regarding the alleged delay in treatment so preponderated in the defendants' favor, the Second Department affirmed the trial court's provident exercise of its discretion to set aside the jury's verdict on that issue and ordering a new trial.

The Second Trial

The Second Department, by its decision, laid out a road map which plaintiff was to [*4]follow in order to prevail. As stated above, two theories of liability were put forth by plaintiff and presented to the initial jury — a) the failure of the hospital to administer the drug Mannitol to "buy time"; and b) the delay of treatment. Since the Appellate Court determined that the majority proof contradicted both theories and was so contrary to the jury's conclusion that might have fairly have been reached on the basis of the evidence, it was up to plaintiff in the second trial to come forward with substantial evidence which would preponderate in plaintiff's favor on the aforesaid issues and on the issue of proximate cause. Plainly speaking, plaintiff's proof in the second trial had to be, at a minimum, better than the proof presented in the first trial.

The following sole interrogatory was presented to the jury on the issue of liability (besides the follow up interrogatory on proximate cause): Did defendant Long Island College Hospital depart from good and accepted medical practice by not preventing the devastating injury to David Fellin which began to occur at 3:00 p.m. on January 31, 1991?

The jury came to the unanimous conclusion that it did, and the jury further found such deviation to be a substantial factor in causing Fellin's injury.

Now again, the Court must consider whether there was legally sufficient evidence to support this jury verdict and, if so, whether such verdict was against the weight of the evidence. These determinations must be made as to both the issue of deviation and as to the issue of proximate cause.

Plaintiff's contentions

The basic thrust of plaintiff's case in this trial was that was that the defendant failed to appreciate the seriousness of Fellin's condition when he first came into the emergency room at 11:40 A.M., failed to expeditiously have Fellin seen by a doctor, have a CAT scan obtained and a timely diagnosis made, and failed to take appropriate measures to "buy time" and thus prevent Fellin's unfortunate decerebration at 3:30 P.M.

Defendant's contentions

For purposes of argument, defendant appears to allow that some evidence indicates that defendant might have acted more expeditiously and/or more aggressively in assessing, diagnosing and taking all appropriate action to treat Fellin's condition. Nevertheless, even allowing for the interpretation of the facts in a light most favorable to plaintiff, the virtually uncontroverted time line evidence shows that if all diagnostic and surgical efforts that should have or could have been taken were in fact carried out in the most efficient manner humanly possible, there still would have been insufficient time to have prevented Fellin's disastrous injury that began at 3:00 P.M. leading to decerebration at 3:30 P.M.

Analysis

Initially, it is noted that this is one of the saddest cases to have come before this Court. In almost a twinkling, Fellin, a once young, robust and productive individual, lost whatever promising future he aspired to and the remainder of his life has been forever confined to four corners of his rehabilitative facility from which any hope of meaningful improvement is, most unfortunately, an unrealistic dream. Needless to say, this has shattered his family and continues [*5]to take a toll on his loving mother whose life now revolves on daily long-distance commutes by bus to visit with and provide her nurturing efforts at ensuring the best possible care for her son. A "day in the life" film presented to the Court and to the jury brought tears to everyone's eyes. Clearly, the sympathy factor weighed heavily upon the jury which issued a verdict which constituted the third highest monetary award in a medical malpractice action in the history of this State. Even plaintiffs have conceded that the awards for lost earnings, pain and suffering and loss of enjoyment of life were legally excessive and must be reduced.

Despite all of the well-merited sympathy, however, the Court is required to ensure that such sympathy is not improperly used as a vehicle to ascribe liability and grant an award where legal liability has not suitably been established.

As stated above, the Second Department in promulgating its roadmap for retrial focused in on the evidence in the first trial which suggested that, despite all efforts that could have been undertaken, there may simply not have been sufficient time to prepare Fellin and perform the necessary surgery before he experienced his second and catastrophic brain aneurysm. The evidence in this trial convincingly established such to be the case. All of the expert testimony concurred that from 3:00 P.M., when Fellin's aneurism suddenly ruptured leading to decerebration at 3:30 P.M., defendant took all appropriate actions within time frames consonant with good and accepted medical practice to prepare and perform the requisite surgery that salvaged his physical life. The evidence demonstrated that at 3:40 P.M., Fellin was waiting to go to the CAT scan, he actually went to the CAT scan at 4:00 P.M., returned from there at 4:45 P.M., and was taken to and entered the operating room between 5:00 - 5:27 P.M. Preparations for surgery were done and anesthesia was initiated at 5:28 P.M. Surgery began at 6:45 P.M. It then took at least another hour, to 7:45 P.M., to shave the skull, saw off a portion of the skull and open the dura. Another one-half to one hour (8:15 - 9:15 P.M.) would elapse before an aneurism clip was placed on the aspect of the carotid artery that ultimately stopped the bleeding. According the operating room log, the operation ended at 9:55.P.M.

Thus, under the most trying and exigent circumstances, it took three hours forty-five minutes before surgery could begin, four hours forty-five minutes before the dura was opened and about five hours fifteen minutes to five hours forty-five minutes before the aneurism was clipped and the bleeding stopped. In transposing these real-life times to the theoretical what could have/should have occurred when Fellin first entered the emergency room at 11:40 A.M. that fateful morning and even when seen in the light most favorable to plaintiffs, the minimum three hours forty-five minutes time to get to the point of surgery would have been 3:25 P.M. In that time, Fellin's aneurism would have already burst and the damage done would still have been so extensive and irreversible despite any efforts expeditiously undertaken by defendants.

It must be pointed out, however, that application of the actual time scenario under the exigent post 3:00 P.M. period to the situation that faced Fellin and defendants when Fellin first entered the emergency room at 11:40 A.M. would be like comparing apples to oranges. Defendant contend that Fellin initially presented a sole complaint of a severe backache. That was the chief complaint documented on the triage nurse's intake sheet. Plaintiffs nevertheless contend that Fellin must have also complained of severe headache or that such information was not properly elicited from him by the triage nurse. Either way, from the time Fellin presented himself to the emergency room triage nurse until around the 3:00 P.M. episode, his vital signs [*6]were stable and he was continuously alert and oriented throughout that period. The turning point in his symptomology occurred around 1:00 P.M. when Fellin reported that the backache had somewhat subsided, but that he had vomited and now had a severe headache which was subsequently characterized as "a lot of headache" or the "worst headache of [his] life". Despite that change, his vital signs still remained essentially normal. His examination by Dr. Saghal at 2:00 P.M. as well as the vital signs then taken were again normal except for Fellin's continued complaints of back pain radiating to the head with severe headache. Because of these additional complaints, Dr. Saghal did become concerned enough to seek permission from his superior to send Fellin for a CAT scan and the permission was granted. Unfortunately, Fellin's unanticipated turn for the worse preceded and prevented any ability to obtain the CAT scan before Fellin's decerebration.

Even assuming that the triage nurse, who first encountered Fellin at 11:40 A.M. complaining of backache (and possibly headache) but exhibiting normal vital signs, had the benefit of hindsight and clairvoyance to perceive that Fellin was in relatively imminent danger of the devastating injury that was to occur at 3:00 P.M., that she was able to instantaneously find and summon an available doctor to examine him, that the doctor would immediately find and obtain an available supervisor from whom to obtain authorization to order the CAT scan, that the CAT scan technicians and transport personnel were immediately available, that the CAT scan would have showed a bleed in the brain, it would still have been up to the neurosurgeon to decide whether or not surgery, immediate or otherwise, was appropriate. Neurosurgeon experts from both sides testified that if surgery was indicated for a stable patient — such as Fellin clinically was until 3:00 P.M. — the next appropriate step would be to obtain an angiogram study which would precisely define the area of the hemorrhage in the brain which would then be used as a roadmap for the surgery. The time it would have taken to obtain this study, from one to two hours, would certainly have offset any time plaintiffs assert that the delay in performing surgery before the aneurism burst at 3:00 P.M. necessarily extended and delayed the actual surgery because of the need to stabilize Fellin. Moreover, as shown below, the testimony of the neurosurgeon experts prove that the standard of care in 1991 was not to run head over heels into surgery, but to place the clinically stable patient in intensive care and obtain an angiogram and, if indicated, perform surgery within 24 hours.

In order to present a prima facie case of medical malpractice, a plaintiff must show, inter alia, that his or her injuries proximately resulted from the defendants' departure from the required standard of performance (see Derdiarian v Felix Constr. Corp., 51 NY2d 308; Tonetti v Peekskill Community Hosp., 148 AD2d 525; Hylick v Halweil, 112 AD2d 400). Furthermore, failure to establish that such negligence was the proximate cause of the plaintiff's loss requires dismissal of the legal malpractice action (Tanel v Kreitzer & Vogelman, 293 AD2d 420, 421).

As demonstrated above, if the appropriate care would not have prevented Fellin's injury, defendants cannot be held liable.

Dr. Richard Alexander Ross Fraser

Dr. Fraser, a neurosurgeon who did not testify at the first trial, was produced by plaintiff as their primary expert in this trial. The main thrust of this doctor's testimony was that Fellin must have suffered an arachnoid hemorrhage with a small bleed at 11:40 A.M. which then stopped. He admitted that at that point of time, there was no clinical presentation that Fellin had [*7]anything wrong in his head. The first symptoms of same manifested around 12:30 to 1:00 P.M. The doctor opined on direct that after that point, a cat scan should have been ordered by 1:00 P.M. and that it was a departure for defendant to have delayed same until the point that Fellin's condition suddenly worsened. Dr. Fraser further opined that had the CAT scan been so timely performed and depending upon what the CAT scan showed a surgical decision could have been made more expeditiously to afford Fellin a window of opportunity to prevent the disastrous consequences that occurred.

However, Dr. Fraser also stated that before 1991, standard procedure was to operate immediately on a patient with a sub-arachnoid hemorrhage to stop the bleed. This met with disastrous results. As a consequence, post-1991 standards changed over to a more cautious approach. The accepted practice now dictated that where a patient is stable, an angiogram should be obtained to determine the precise location of the hemorrhage and that, so long as the hemorrhage does not cause brain herniation, the proper procedure would be to wait 24 - 48 hours to do invasive brain surgery. He allowed that an angiogram could be dispensed with if there were signs of brain herniation, but he conceded that there was no such clinical signs before 3:00 P.M.

On cross examination, Dr. Fraser contradicted his testimony on several point. The most significant point was on the issue of timing of the CAT scan. Whereas he initially insisted that a CAT scan should have been performed on Fellin within an hour of his arrival at the emergency room, when confronted with his own expert testimony in other cases, he admitted that he had previously stated under oath that even a delay of 13 hours was not a departure from good and accepted medical practice.

So even considering the minimum time frames testified to by Dr. Fraser including the one to two hours added for an angiogram and disregarding his contradictory testimony that even a 13 hour delay in obtaining the CAT scan would not have been a departure, the three hour delay in obtaining the CAT scan, whether a departure or not, would not have prevented Fellin's injury.

Clearly, Dr. Fraser's testimony was devastating to plaintiffs' case. Not only did he fail to set forth a prima facie case, he undermined it by his contradictions and admissions.

Plaintiffs had not planned to call Dr. Lawrence Shields to testify at the second trial. Apparently, plaintiffs primarily pinned their hopes for success on the testimony of Dr. Fraser, inasmuch as the Appellate Division indicated its less than lukewarm reception to Dr. Shields' opinions in the first trial in light of the overwhelming proof to the contrary.

Nevertheless, After Dr. Fraser's less than helpful testimony, plaintiffs had a change of heart and decided to call Dr. Shields to testify. Defendants, to everyone's understanding including that of the Court, concluded their proof on the issue of liability with the testimony of Dr. Fraser. Based upon that understanding and in order to accommodate the scheduling of the experts — some of whom were flying in from out of town — that were yet to testify, defendants put their liability witnesses on the stand. When plaintiffs surprised defendants and the Court with their request top call Dr. Shields, defendants vehemently objected. While the Court was not pleased with this development, since defendants were aware of Dr. Shields and his testimony from the first trial, it nonetheless allowed plaintiffs to call Dr. Shields to give his testimony in this trial with the proviso that his testimony not be cumulative. [*8]

Dr. Lawrence Shields

Before addressing the testimony of Dr. Shields, it is interesting to note that, as stated above, one of the main bases upon which the Second Department reversed and remanded for a new trial was the issue of Mannitol. Nonetheless, had plaintiffs concluded their case on liability with the testimony of Dr. Fraser as they had originally intended, there would have been no mention of the issue whatsoever. Thus plaintiffs would have abandoned the issue entirely had Dr. Shields not been called in at the last minute in an attempt to salvage the case. Once on the stand, Dr. Shields tangentially opined that the administration of Mannitol could be an ingredient in a recipe which included placing Fellin in a dark room and more frequent monitoring of his blood pressure in order to reduce the total likelihood of the patient having an increase of pressure within the brain which could lead to disastrous consequences. This testimony was less substantial than that given at the first trial. His testimony in this regard did not develop the issue sufficiently to warrant consideration by the jury as an independent departure interrogatory. Even where more focus was given to this issue in the first trial, the appellate court found Dr. Shields testimony, standing alone, was unable to carry the day in light of the overwhelming proof that the administration of Mannitol was contraindicated because of Fellin's normal vital signs. The proof in this trial was no better.

Soon after Dr. Shields took the stand, it became obvious that his purpose in testifying was to contradict Dr. Fraser's opinions and self impeached testimony. During the course of his testimony, Dr. Shields — who admitted that he does not do surgery and that decisions about surgery and its timing would ultimately have to be made by the surgeon — contradicted the opinions of all the neurosurgeons who testified both at the first and second trials that an angiogram ought not be dispensed with in a clinically stable patient such as Fellin was before 3:00 P.M.

Dr. Shields, also refused to acknowledge his own contradictory statements from his previous testimony even after read to him. Whenever his contradictions were pointed out to him, Dr. Shields stated that he either didn't recall having been asked certain questions and giving certain answers or that the experts quoted were "confused". He not only disagreed on every major point with every expert, both of plaintiffs' and of defendants', he specifically offered that, despite all evidence to the contrary, Fellin was not clinically stable up to 3:00 P.M., that within minutes of his arrival at the emergency room a CAT scan should have been obtained, that the neurosurgeon should have concluded that surgery was to be imminently performed with resort to an angiogram and that surgery should have commenced by 2:00 P.M. While the doctor admitted that, in general, an angiogram should be performed, he insisted that in this case that generality did not apply. Other than Monday night quarterbacking, the doctor never really articulated the basis for his distinctions.

A physician need not be a specialist in a particular field in order to testify, provided that he possesses the requisite knowledge, and the weight to be attached to an expert's opinion is a matter for the jury (see People v Paun, 269 AD2d 546; Forte v Weiner, 200 AD2d 421; Humphrey v Jewish Hosp. & Med. Ctr., 172 AD2d 494). However, unless the expert's opinion is supported by the facts, that is, "is based on a sound hypothesis, it lacks probative force" (Matter [*9]of Bonomi v Poirier & McLane Corp., 1 AD 2d 303, 305; Boyce Motor Lines v State of New York, 280 App. Div. 693, affd. 306 N Y 801).

Dr. Shields persistently assumed facts as he saw fit and refused to accede to the facts actually in the record. His opinions were therefore primarily based upon speculation.

Assuming the doctor could substantiate an appropriate basis for his opinions, his testimony might have been legally sufficient for the jury to come to the conclusion they did. However, once again, the jury's verdict would be against the weight of the evidence.

Decision

The Court finds that notwithstanding Dr. Shields unsupported testimony to the contrary, the facts of this case coupled with the overwhelming evidence from every other expert in the case leads to the conclusion that Fellin was clinically stable until 3:00 P.M., that until 12:30 - 1:00 P.M. there was no basis upon which defendant's should have ordered a CAT scan, that based upon the actual surgical and pre-surgical time line of the post 3:00 P.M. misfortune and in considering the added necessary steps, i.e. the angiogram that would have been performed had a surgical decision been made, Fellin would have suffered the same disastrous injury he did because there simply was not sufficient time to perform all of the steps that good and accepted medical practice required in 1991. There was therefore no rational basis upon which the jury could have found that defendants' delay was a proximate cause of Fellin's injury. The Court is therefore constrained to grant defendants motion granting them judgment notwithstanding the verdict and dismiss plaintiff's complaint.

In light of this decision, the Court need not address the other issues raised in the papers.

This constitutes the decision and order of the Court.

E N T E R,

MELVIN S. BARASCH, J.S.C.