Hudson v Krukenkamp
Annotate this CaseDecided on September 29, 2004
Supreme Court, Suffolk County
Jane Hudson and DEBORAH KOOB, as Administratrix of the Estate of GEORGE HUDSON, Deceased, Plaintiffs,
against
Irwin Krukenkamp, M.D., Defendants.
00-11100
John J.J. Jones, J.
ORDERED that this motion by defendant Irvin B. Krukenkamp, M.D. s/h/a Irwin Krukenkamp, M.D. for an order pursuant to CPLR 3212 granting defendant summary judgment dismissing the complaint as against him is granted.
This is a medical malpractice action to recover damages, personally and derivatively, for injuries allegedly sustained by plaintiff Jane Hudson as a result of the negligence of her surgeon, defendant Irvin B. Krukenkamp, M.D. s/h/a Irwin Krukenkamp, M.D., in failing to recognize that plaintiff Jane Hudson was exhibiting signs and symptoms of a stroke during her triple coronary artery bypass surgery on May 21, 1998 and afterwards prior to her discharge from Stony Brook University Hospital Medical Center (Hospital) on May 24, 1998. Plaintiff Jane Hudson was subsequently admitted to Brookhaven Memorial Hospital on June 5, 1998 and diagnosed as having suffered a stroke. In addition, plaintiffs allege that defendant failed to appreciate [*2]defendant's worsening mental condition, numbness, speech defects, vision loss, confusion, disorientation, restlessness and memory impairment. Plaintiffs also allege that defendant failed to perform a CT Scan, MRI, ultrasound, blood test, and a neurological examination of plaintiff.
Defendant now moves for summary judgment dismissing the complaint as against him on the grounds that plaintiff Jane Hudson had no signs or symptoms of a stroke while under the care and treatment of defendant between May 21, 1998 and May 24, 1998 and that the onset of plaintiff Jane Hudson's stroke occurred on June 5, 1998 after her discharge from defendant's care. In support of the motion defendant submits, inter alia, the pleadings; the deposition transcripts of plaintiff Jane Hudson, of defendant, and of plaintiff Deborah Koob, plaintiff's daughter; defendant's affidavit; the affidavit of defendant's expert surgeon, Dr. Garcia; and the records of plaintiff Jane Hudson from Catholic Health Services/Nursing Sisters Home, from Brookhaven Memorial Hospital, and from St. Charles Hospital and Rehabilitation Center.
In opposition, plaintiffs contend that plaintiff Jane Hudson was exhibiting signs and symptoms of a stroke during her admission to the Hospital and after defendant performed cardiac bypass surgery on plaintiff on May 21, 1998 and prior to her discharge from the Hospital which signs and symptoms were completely ignored or overlooked by defendant, his agents, servants and employees. Plaintiffs further contend that defendant's failure to recognize, properly monitor and treat plaintiff resulted in a delay of the diagnosis and an aggravation of a cerebral infarction resulting in permanent neurological injuries. In support of their opposition plaintiffs submit the deposition transcript of non-party Charles Hudson, the son of plaintiff Jane Hudson; a Hospital progress note; the Hospital's Fall Risk/Skin Integrity Reassessment Form for plaintiff; the Hospital's Initial Physical Therapy Evaluation of plaintiff; the affidavit of plaintiff Deborah Koob; and plaintiffs' redacted expert affidavit.
In reply, defendant opposes consideration of the redacted expert affidavit on the grounds that the unredacted original was not provided to the Court and contends that plaintiffs failed to raise a triable issue of fact to defeat defendant's motion for summary judgment. An affidavit from defendant is also submitted in reply.
To make a prima facie showing of entitlement to summary judgment in an action to recover damages for medical malpractice, a defendant hospital or physician must establish through medical records and competent expert affidavits that the defendant did not deviate or depart from accepted medical practice in defendant's treatment of the plaintiff (Mendez v City of New York, 295 AD2d 487,744 NYS2d 847 [2d Dept 2002]). To rebut a prima facie showing by the defendant hospital or physician, a plaintiff must submit evidentiary facts or materials in opposition to the motion, demonstrating the existence of a triable issue of fact as to whether defendant hospital or physician deviated or departed from accepted practice and whether such departure was a proximate cause of injury or damage (Holbrook v United Hosp. Med. Ctr., 248 AD2d 358, 669 NYS2d 631[2d Dept 1998]).
Defendant's motion for summary judgment is supported by expert medical evidence [*3]establishing his prima facie entitlement to judgment as a matter of law (see, Heshin v Levitt, 273 AD2d 442, 711 NYS2d 749 [2d Dept 2000]). Defendant's expert, Dr. Garcia, opines in his affidavit that within a reasonable degree of medical certainty defendant did not depart from good and accepted medical practice in the care and treatment rendered to plaintiff Jane Hudson. Dr. Garcia points out that plaintiff had an unremarkable bypass surgery; underwent neurological examinations prior to her discharge and exhibited no signs of stroke; and that from a clinical standpoint, prior to surgery during conversations with defendant, during surgery, and through to her discharge plaintiff did not present with signs or symptoms of stroke. Dr. Garcia emphasizes that although defendant left the Hospital at the end of his shift on the evening of May 21, 1998 and did not return until after plaintiff's discharge, it is not a departure from the standard of care to have other attending cardiac surgeons provide coverage for a patient in the absence of the operating or admitting physician, as in this case. In addition, Dr. Garcia points out that between plaintiff's admission and discharge from the Hospital "no doctor, nurse or clinician found or noted that plaintiff exhibited any signs, symptoms or presentations related to stroke" and states that "in the absence of a specific complaint to a nurse, doctor or physical therapist or the presence of a specific physical finding of a neurological defect, a CT scan, MRI or any further neurological workup was not indicated."
Moreover, Dr. Garcia opines that the records clearly indicate that plaintiff suffered a stroke on June 5, 1998, after her discharge from the Hospital. Dr. Garcia notes that plaintiff's records from Catholic Health Services/Nursing Home Sisters for the period May 29, 1998 through June 4, 1998 reveal that plaintiff moved all of her extremities independently, was alert and oriented to time, person and place and had clear speech. He states that the Brookhaven Memorial Hospital admission note indicates that plaintiff developed mental confusion, disorientation, restlessness and weakness of the left side in the morning of June 5, 1998. Finally, Dr. Garcia opines within a reasonable degree of medical certainty that the onset of plaintiff's stroke occurred subsequent to her discharge from defendant's care such that defendant did not fail to diagnose a stroke.
To oppose a motion for summary judgment dismissing a cause of action sounding in medical malpractice, a plaintiff must submit a physician's affidavit of merit attesting to a departure from accepted practice and containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury (Domaradzki v Glen Cove OB/GYN Assoc., 242 AD2d 282, 660 NYS2d 739 [2d Dept 1997]).
Initially, the Court notes that the submission by plaintiffs of an affidavit from an unidentified expert is permissible with the proviso that the Court may require submission of an unredacted copy of the affidavit for an in camera inspection (see, Marano v Mercy Hosp., 241 AD2d 48, 670 NYS2d 570 [2d Dept 1998]; McCarty v Community Hosp., 203 AD2d 432, 610 NYS2d 588 [2d Dept 1994]).
In any event, plaintiffs failed to present evidence raising a triable issue that any specific, independent act on the part of the defendant proximately caused the plaintiff's injuries (Cook v [*4]Reisner, 295 AD2d 466, 744 NYS2d 426 [2d Dept 2002]). Plaintiffs' attorney opines in his affirmation that the "embollus that caused the plaintiff's stroke originated in her heart, in as much as she received a negative carotid duplex exam prior to the surgery" and concludes that plaintiff suffered a stroke either intraoperatively or shortly thereafter. Plaintiffs' attorney also opines that although initially the effects of the anesthesia could have been considered as the cause of plaintiff's post-operative condition, "the time frame for these complaints was too far beyond what could have been reasonably attributed to anesthesia." These opinions and conclusions are not supported by, corroborated by or referenced to any medical expert. Neither is plaintiffs' attorney qualified to render medical opinions (see, Armstrong v Wolfe, 133 AD2d 957, 520 NYS2d 466 [3d Dept 1987]). Therefore, said statements by plaintiffs' attorney have no probative value.
In addition, the progress note, the Hospital's Fall Risk/Skin Integrity Reassessment Form for plaintiff and the Hospital's Initial Physical Therapy Evaluation of plaintiff are all dated the day after the subject surgery, May 22, 1998, the day that plaintiff awoke from the anesthesia and neither those forms nor the deposition testimony of Charles Hudson are probative as to whether plaintiff's alleged symptoms of vision impairment, disorientation, inability to move her left arm continued thereafter. In addition, Charles Hudson states in his deposition that plaintiff's family voiced their concerns to unidentified Hospital staff who allegedly assured them the symptoms were the residual effects of the anesthesia. Plaintiffs failed to produce evidentiary proof in admissible form to substantiate their allegations (id.).
Moreover, plaintiffs' expert bases his opinion on the aforementioned forms and the testimony of plaintiff Deborah Koob and Charles Hudson to state that plaintiff's one-sided manifestations "were consistent with some neurological problem rather than any effects of anaesthesia." In addition, plaintiffs' expert finds that unspecified records and deposition testimony show that plaintiff's symptoms did not subside 24 to 48 hours after she received anesthesia and opines that plaintiff should have been closely monitored and that if the symptoms did not subside, plaintiff should have been reassessed by a neurologist and have undergone a non-contrast CT scan of the head. Plaintiff's expert then opines that had a CT Scan been ordered prior to plaintiff's discharge from the Hospital "it would have within a reasonable degree of medical certainty revealed the right occipitotemporal infarct in evolution that was diagnosed on CT scan at Brookhaven Hospital on June 6th." Plaintiffs' expert then goes on to say that based upon his review of subsequent films through June 9th plaintiff suffered further strokes "which would not have occurred and could have been prevented had the patient been treated with anticoagulants during her admission to Stony Brook." Plaintiffs' expert concludes that defendant deviated from accepted standards of care by failing to closely monitor plaintiff for signs of a stroke thereby allowing her to be discharged without proper neurological evaluation and testing and that said deviation was the proximate cause in the delay in the diagnosis and treatment of plaintiff's stroke.
General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment (DiMitri v Monsouri, 302 AD2d 420, 754 NYS2d 674 [2d Dept 2003]). Here, [*5]plaintiffs' expert fails to rebut defendant's expert's findings, particularly that plaintiff underwent neurological examinations prior to her discharge and exhibited no signs of stroke; that between plaintiff's admission and discharge from the Hospital "no doctor, nurse or clinician found or noted that plaintiff exhibited any signs, symptoms or presentations related to stroke;" that "in the absence of a specific complaint to a nurse, doctor or physical therapist or the presence of a specific physical finding of a neurological defect, a CT scan, MRI or any further neurological workup was not indicated;" and that plaintiff began exhibiting the signs of stroke in the morning of June 5, 1998. Plaintiffs have failed to raise an issue of fact concerning any omissions or departures by defendant which were a competent producing cause of plaintiff's injury (Domaradzki v Glen Cove OB/GYN Assoc., supra). Inasmuch as the first cause of action which seeks damages on behalf of the injured plaintiff must be dismissed, the second cause of action, which is a derivative cause of action, must also be dismissed (see, Cabri v Park, 260 AD2d 525, 688 NYS2d 248 [2d Dept 1999]).
Accordingly, the instant motion is granted and the complaint is dismissed in its entirety.
Dated: September 29, 2004 _______________________________________
J.S.C.
X FINAL DISPOSITION NON-FINAL DISPOSITION
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