Taylor v Methodist Hosp.
Annotate this CaseDecided on November 1, 2004
Supreme Court, Kings County
Nathaniel Taylor and STEPHANIE TAYLOR, as co-administrator of the Estate of Theresa Taylor, Deceased, and NATHANIEL TAYLOR, Individually, Plaintiffs,
against
Methodist Hospital, KAM POON, M.D., ROBERT SEMINARA, M.D., and DAVID BYRNES, M.D., Defendants.
1335/00
Michelle Weston Patterson, J.
In this medical malpractice and wrongful death action the defendants, Methodist Hospital and David Byrnes, M.D., have separately moved pursuant to CPLR § 3212 for summary judgment and to dismiss the complaint as asserted against them on the grounds that there does not exists a triable issue of fact.
After undergoing a hysterectomy in 1997, plaintiff decedent complained of chronic constipation for which her primary physician, defendant, Dr. Poon, prescribed laxatives. On May 7, 1998, she was hospitalized at defendant, Methodist Hospital, under the care of Dr. Poon, for symptoms of intestinal obstruction. At the request of Dr. Poon, defendant Dr. Byrnes performed a gastroenterology consultation of the decedent to determine the cause of the obstruction. Decedent denied rectal bleeding or weight loss to Dr. Byrnes. Blood tests were ordered which revealed no iron deficiency. Upon performing a rectal examination, no occult blood was found but a possible abdominal mass was suspected. Dr. Byrnes' clinical impression was fecal impaction and [*2]constipation secondary to either adhesions or intestinal malignancy. An abdominal CT scan and barium enema were ordered both confirmed the presence of an obstruction in the rectosigmoid area.
Dr. Byrnes therefore recommended a colonoscopy.
On May 14, 1998, Dr. Byrnes performed a sigmoidoscopy. He was unable to perform a colonoscopy because he could not pass the scope past a colonic obstruction at 25 cm from the rectal verge. Dr. Byrnes took six biopsy samples of the area and sent them to Methodist's pathology department. Dr. Byrnes suspected a carcinoma at this point. The pathologist, Dr. K. Jindrak, reported that a sessile polyp with a possible area of adenocarcinoma in situ had been removed. He further reported that it was his impression that the malignant lesion had been fully resected by the biopsy.
Upon reviewing Dr. Byrnes' report and the pathology report, Dr. Poon consulted with defendant Dr. Seminar, a surgeon. It was determined that the decedent should undergo surgery. Dr. Seminara informed decedent that he planned to do an exploration of her abdomen with the possibility of a bowel resection if a mass was discovered. On May 18, 1998, Dr. Seminara performed an exploratory laparotomy. He testified that during the surgery, he encountered abdominal adhesions, which when they were released restored the surrounding area to a healthy pink appearance and the colon began to uncoil. He further testified that he did not perform a bowel resection in an effort to spare the decedent from any further surgeries, including a possible colostomy. He testified he found no evidence of a mass or of malignancy during the surgery. Dr. Poon did not consult with Dr. Byrnes following Dr. Seminara's surgery. Decedent was discharged from Methodist Hospital on May 25, 1998.
Decedent was readmitted to Methodist Hospital on June 12, 1998 for a small bowel obstruction. She was treated conservatively by Dr. Seminara and discharged on June 19, 1998. Dr. Byrnes was not consulted during this hospitalization. Due to continuing complaints of constipation and intestinal distress, decedent went for another colonoscopy which was scheduled to be performed by Dr. Anand at Brooklyn Hospital. On July 14, 1998, while drinking the preparatory liquid, decedent became very ill and was sent for immediate surgery. Dr. Caton performed abdominal surgery and discovered a tumor in the decedent's colon which was malignant. A colostomy was thereafter performed from July through October 1998. Despite undergoing chemotherapy, a PET scan confirmed that the colon cancer had metastasized in both lungs and her liver. Decedent died on August 23, 2001.
This action was commenced on January 12, 2000 alleging claims based upon medical malpractice and wrongful death. Plaintiff's complaint alleges basically that the defendant Methodist Hospital was vicariously liable for the acts of the other doctors, that the hospital staff failed to properly perform surgery upon the decedent and that the hospital failed to supervise its attending physicians, in failing to review the credentials of physicians practicing medicine at the hospital. With regards to Dr. Byrnes it is alleged that he negligently treated the decedent by failing to perform a complete consultation and arrive at an accurate diagnosis.
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 [*3]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 NY2d 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 NY2d 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 NY2d at 562).
METHODIST HOSPITAL
Methodist Hospital seeks summary judgment on the grounds that the decedent was admitted to the hospital as a private patient of Dr. Poon. She was thereafter treated by private physicians, Drs. Byrnes and Seminara both consulted by Dr. Poon. Methodist Hospital further contends that the hospital staff properly executed all of the orders written by the decedent's private physicians, and appropriately assisted Dr. Seminara during the surgery. Methodist Hospital contends that in the absence of any proof that a hospital employee committed malpractice, they are entitled to summary judgment. Methodist Hospital does not address plaintiff's claim with respect to negligent creditialing of the private attending physicians in the moving papers.
Here, Methodist Hospital has demonstrated that they are entitled to summary judgment on the issues of vicarious liability and for any alleged independent acts of negligence on the part of the hospital staff. Methodist Hospital has shown that the decedent entered the hospital and was treated at all times under the care of
Drs. Poon, Seminara and Byrnes. The hospital staff executed these doctors' orders and appropriately assisted them.
The burden thus shifted to the plaintiff to rebut this prima facie showing. In opposition, plaintiff asserts that Methodist Hospital motion should be denied based upon their failure to address all of the negligence claims asserted in the complaint. Specifically, plaintiff alleges that Methodist Hospital was negligent by failing to properly review the privileges of Dr. Seminara and Dr. Byrnes. The plaintiff's expert, Gary Steinberg, FACHE, a hospital administrator, states that a hospital is required to review a physician's privileges every two years. One of the areas that must be considered by the hospital is the number of lawsuits settled and pending against a physician. Mr. Steinberg asserts that on average three lawsuits during a five to ten year period is considered within normal limits. Plaintiff's expert states that according to a search conducted, both
Dr. Seminara and Dr. Byrnes exceed this average. Plaintiff's expert opines that Methodist Hospital was negligent by failing to re-evaluate these doctors' credentials and closely scrutinize the care and treatment they rendered and by failing to limit them to supervised treatment of patients based upon their "excessive" number of malpractice claims.
With regards to an independent act of negligence on behalf of the hospital, [*4]plaintiff's medical expert states that Dr. Seminara's surgical assistant, Dr. Oyogoa, failed to observe, locate and remove the mass in the decedent's colon which was apparent. Plaintiff therefore contends that since Dr. Oyogoa was employed by the hospital they are responsible for the doctors' malpractice.
Contrary to plaintiff's assertion, the failure to address all claims in the complaint does not per se preclude summary judgment. Indeed, pursuant to CPLR § 3212 partial summary judgment is appropriate to ensure that only triable issues of facts are submitted to the jury.
Methodist Hospital is entitled to summary judgment on all issues concerning vicarious liability and any independent acts of negligence. Plaintiff has failed to address the issue of vicarious liability at all in the opposition papers. In an effort to assert an independent act of negligence against Methodist Hospital plaintiff's expert states, in a conclusive manner, that the hospital physician assisting Dr. Seminara was negligent in failing to observe, locate and remove the mass during the exploratory surgery performed on May 18, 1998. Plaintiff's expert fails to identify any evidence that a mass was visible during the surgery or on what basis Dr. Oyogoa should have observed a mass. Indeed, the only testimony concerning the May 18, 1998 surgery indicates that a search of the area was performed and no evidence of a mass was observed.
However, Methodist Hospital, as movant, has failed to demonstrate entitlement to summary judgment on the issue of negligent credentialing. Methodist Hospital states in their reply papers that they did not believe plaintiff was pursuing this claim because no discovery was ever requested relative to this issue. This is an insufficient basis to establish entitlement to summary judgment. It is therefore unnecessary for the Court to review the adequacy of the plaintiff's papers on this issue in light of the defendant's failure to meet their initial burden.
Dr. Byrnes
Dr. Byrnes has similarly made a prima facie showing of entitlement to summary judgment. Dr. Byrnes has demonstrated that he was consulted by Dr. Poon to investigate the decedent's obstruction. His expert contends that he performed the proper examination, ordered the appropriate test and properly performed the sigmoidoscopy when he encountered the obstruction. Dr. Byrnes appropriately resected portions of it and sent it to pathology. As a consulting physician he fulfilled his obligation to the decedent.
The burden thus shifted to the plaintiff to rebut the defendant's prima facie showing. Here, plaintiff relies upon the redacted medical affirmation of a general surgeon who opines that Dr. Byrnes departed from good and accepted standards of medical malpractice by failing to perform a colonoscopy as originally planned and by failing to follow up with the patient following the surgery.
Plaintiff's expert contends that Dr. Byrnes failed to complete his consultation by failing to rule out or confirm colon cancer. Plaintiff's expert states:
Dr. Byrnes was aware that Mr. Taylor had a mass in the colon, since it was this very mass that prevented him from passing the tube more than 25 cm. However, he departed from [*5]accepted medical practice by failing to ensure that this mass that he found was removed during surgery. Dr. Byrnes also departed from accepted medical practice by failing to ensure that an accurate diagnosis pertaining to this mass was reached. As a consult, accepted medical practice would have required that he follow this patient during the Methodist Hospital admission, until an accurate diagnosis was reached. In this case, accepted medical practice required that Dr. Byrnes either confirm or rule out colon cancer. He departed from accepted medical practice by failing to ensure that the colonic mass found during colonoscopy was removed and pathologically analyzed to either confirm or rule out the possibility of colon cancer.
Plaintiff further relies upon Dr. Byrnes' deposition testimony where he stated that if the decedent was his patient he would have performed a follow-up examination. Plaintiff's expert opines the failure of Dr. Byrnes to do a colonoscopy resulted in a two-month delay in the decedent's cancer being diagnosed. Plaintiff's expert explains that according to the pathology report in May 1988, the cancer was still in situ and had not progressed to the surrounding tissues at that point.
The Court finds the expert affirmation to be conclusive, highly speculative and unsupported by the facts of this case. According to this record, Dr. Byrnes encountered a colonic obstruction, suspected a possible carcinoma and took several biopsy samples from the area. Dr. Poon, decedent's primary treating physician, then consulted
Dr. Seminara, a surgeon, to determine the proper course.
Dr. Seminara decided to perform exploratory abdominal surgery with the possibility of performing a bowel resection. Based upon Dr. Seminara's intraoperative findings, namely that once adhesions were cut the area unkinked and resumed a normal appearance and Dr. Seminara's inability to discover any evidence of a mass a bowel resection was not performed. Dr. Seminara diagnosed that the adhesions were the cause of the decedent's problems. Dr. Byrnes was not present during the surgery and was never consulted after the surgery. It was the surgeon's independent finding during the surgery which dictated the course of the surgery.
It is unclear from plaintiff's expert statement as to just how Dr. Byrnes was suppose to ensure that a mass was removed during surgery in a case, where the surgeon testified he did not observe a mass. Moreover, the expert's statement that
Dr. Byrnes was responsible for ensuring that an accurate diagnosis was reached is based upon hindsight as opposed to the facts that then existed. A post-operative diagnosis that adhesions had caused the obstruction was made by Dr. Seminara. There is no evidence which supports that Dr. Byrnes was consulted pertaining to this [*6]post-operative diagnosis.
Accordingly, the defendant, Methodist Hospital motion is granted to the extent that said defendant is awarded partial summary judgment and all claims except negligent credentialing are hereby dismissed. The defendant Dr. Byrnes' motion is granted and the complaint is dismissed and severed as to Dr. Byrnes.
This constitutes the decision and order of this Court.
ENTER:
________________________ J.S.C.
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