Dow v Lenox Hill Hosp.

[*1] Dow v Lenox Hill Hosp. 2005 NY Slip Op 52372(U) [20 Misc 3d 1132(A)] Decided on December 19, 2005 Supreme Court, Bronx County Salerno, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 19, 2005
Supreme Court, Bronx County

Lawrence Dow, Plaintiff,

against

Lenox Hill Hospital and DOMINGO C. NUNEZ, M.D., Defendants.



23042/00



Appearances of Counsel:

For Defendant: McAloon & Friedman, PC, 123 William Street, NY, NY 10038, Tel # 212-732-8700; and For Plaintiff: Law Office of Joel M. Gluck, 80 Livingston Street, Brooklyn, NY 11201, 718-488-9141

George D. Salerno, J.

The Motion by Defendants, LENOX HILL HOSPITAL and DOMINGO C. NUNEZ, M.D., (Dr. NUNEZ), seeking summary judgment dismissing Plaintiff's Complaint, is granted.

This is a medical malpractice action to recover damages for personal injuries allegedly sustained as a result of Defendant Dr. NUNEZ's negligence in performing emergency repair surgery, on Plaintiff's very large incarcerated [FN1] inguinal hernia, [FN2] at LENOX HILL HOSPITAL, on November 18, 1998.

Plaintiff also alleges a cause of action for lack of informed consent as to Defendant Dr. NUNEZ. Using boilerplate language in the Complaint, Plaintiff alleges that Dr. NUNEZ neglected "to inform Plaintiff of the risks of treatment, the alternatives thereto and the risks of alternatives." (See Plaintiff's Verified [*2]Complaint [FN3], p.5, dated September 18, 2000, at Defendants' Exhibit "A").

Medical Malpractice

It is well-established that the essential elements of a medical malpractice action are: "deviation or departure from accepted standards of practice" in the community; and that "such departure is a proximate cause of the injuries sustained." See Bard, NY Medical Malpractice, §1.1, p. 1-17 (1994). See Amsler v. Verrilli, 119 AD2d 786 (2d Dept. 1986).

Plaintiff attempts to set forth the Defendants' alleged departures in an unsworn, August 17, 2000 letter, by Dr. Arnold Melman, Plaintiff's physician, who alleges as follows: that Dr. NUNEZ's operative report does not indicate that "the scrotal contents were removed, inspected or replaced during...the hernia repair"; "that there is no explanation as to why any tissue was left within the scrotal sac"; and that "the placement of the omentum [FN4] in the left scrotum at the time of the hernia repair would be [FN5] a departure of the standard of care and a direct cause of [Plaintiff's] post-operative complications." (See Dr. Melman's letter, dated August 17, 2000, in Defendants' Exhibit "O", and Plaintiff's Exhibit "6").

In support of Defendants' Motion for summary judgment, the contentions are addressed in the Affirmations, dated May 25, 2005, and July 13, 2005, of Dr. Robert J. Ward who is board-certified in the field of Surgery and sub-certified in the field of Critical Care Surgery (See Defendants' Exhibit "T" and Defendants' Reply); and in the May 25, 2005 Affirmation, and August 21, 2002 Report, of Dr. Douglas P. Birns, an examining urologist, (See Defendants' Exhibit "Q").

After reviewing the pertinent documents,[FN6] Dr. Ward concludes, with a [*3]reasonable degree of medical certainty, that the care and treatment rendered to

Plaintiff by Defendants was in accordance with good and accepted medical practice; and that no action by Defendants was a proximate cause of any injury to Plaintiff. (See Dr. Ward's Affirmation, p. 4, 6, at Defendants' Exhibit "T"). Dr. Ward states:"The hernia repair was properly performed. The operative report indicates that a very large hernia sac was dissected away from the adherent cord structures. ... The sac was opened and found to contain approximately 1.5 feet of sigmoid colon. The protruding sigmoid colon was removed and a mesh was placed with an area for the cord to descend into the scrotum. This was the correct and proper treatment for Plaintiff's injury." [emphasis added] (See Dr. Ward's Affirmation, p. 4, at Defendants' Exhibit "T").

Dr. Ward further explains that: "An inguinal hernia, as Plaintiff had, occurs when the intestines or bowel is pushed through a hole in the inguinal canal down into the groin. ... Plaintiff's hernia was a sliding hernia. This means that part of the wall of the hernial sac is made up of a hollow viscus, in this case, intestine. In other words, the hernial sac was formed, in part, by the colon and, therefore, it could not be removed. The proper procedure after opening the hernial sac and determining that it was a sliding hernia, was to close the sac and reduce it by pushing it back through the hole. This is exactly what Dr. NUNEZ did." (See Dr. Ward's Reply Affirmation, dated July 13, 2005, p. 1- 2, in Defendants' Reply).

Dr. Ward refutes Dr. Melman's unsworn suggestions, by stating that it "would have been a departure if Dr. Nunez had removed, inspected and/or replaced the scrotal contents." (See Dr. Ward's Affirmation, p. 4, at Defendants' Exhibit "T"). Dr. Ward explains that the "normal scrotal contents are the blood [*4]vessels, the spermatic cord, and the testicles. The normal scrotal contents ... should not be pulled out of the scrotum. Pulling them out of the scrotum could cause injury to the testicles." (See Dr. Ward's Reply Affirmation, dated July 13, 2005, p. 2, in Defendants' Reply).

In addition, Dr. Ward states that:

"there is no merit to the claim that tissue was left in the sac by Dr. NUNEZ. Instead, ... [P]athology confirmed that the tissue referred to in Dr. Melman's December 22, 1998 operative report was an organized hematoma that developed after the hernia repair. Further, with such a significant amount of skin expansion needed to encompass the1.5 feet of colon found in the sac, creating a hernia the size of a softball, one would expect such a large hematoma to develop." (See Dr. Ward's Affirmation, p. 5, at Defendants' Exhibit "T").

According to Dr. Ward, the hemotoma, or blood clot, was one of the "risks of a hernia repair", that developed as an "expected complication of the procedure". (See Dr. Ward's Affirmation, p. 4-5, at Defendants' Exhibit "T").

Dr. Ward also states that there is "no merit to any claim that the omentum [FN7] was improperly placed in the left sac." (See Dr. Ward's Affirmation, p. 5, at Defendants' Exhibit "T"). Dr. Ward acknowledges that it "would be a departure to place the omentum in the left scrotum," but "this certainly did not take place in this case", because the "omentum, or the lining of the abdominal wall, had no part in the hernia repair, as the hernia was clearly caused by the sigmoid colon and not by the omentum." (See Dr. Ward's Affirmation, p. 5-6, at Defendants' Exhibit "T").

With respect to Plaintiff's post-operative care, Dr. Dr. Ward asserts that: "Plaintiff's swelling was properly treated at Lenox Hill Hospital with scrotal support, elevation and ice packs. As such, Plaintiff's claim that Defendants failed to observe, diagnose and treat post-operative scrotal swelling prior to discharge is completely without merit." (See Dr. Ward's Affirmation, p. 4, at Defendant's Exhibit "T").

Dr. Birns physically examined Plaintiff, Mr. DOW, and concluded that: "There is no current evidence of any abnormality to the testes, and [Plaintiff's] complaint of pelvic discomfort 10 to 20 minutes prior to bowel movement cannot be explained on the basis of his surgical procedure since the mass in his scrotum [*5]was extra peritoneal." (See Dr. Birns' Report dated August 21, 2002; and Affirmation dated May 25, 2005, at Defendants' Exhibit "Q").

Informed Consent

There is no merit to Plaintiff's cause of action for lack of informed consent, because this matter concerns a surgical procedure that was an emergency, and not diagnostic, within the meaning of the applicable statute.

Public Health Law § 2805-d (2) provides: The right of action to recover for medical, dental or podiatric malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body. [emphasis added]

Dr. Ward explains that "emergent surgery" had to be performed: "because Plaintiff's hernia was non-reducing, meaning that the hernia needed to be repaired operatively, and incarcerated, meaning that the bowel was trapped in the scrotal sac, surgery was indicated." (See Dr. Ward's Affirmation, p. 3, at Defendant's Exhibit "T"). In a similar case, where Plaintiff was admitted to the emergency room with a "strangulated hernia", the Appellate Division confirmed that "there is no cause of action based on lack of informed consent", since the "surgery was of an emergency nature." Connelly v. Warner, 248 AD2d 941 (4th Dept. 1998).

Plaintiff acknowledges that he understood that he needed the emergency surgery, since his hernia had "strangulated". (See Plaintiff's July 11, 2001 E.B.T., p. 111, at Defendants' Exhibit "F"). Plaintiff admits, in his deposition, that the left, inguinal hernia had been diagnosed many years before, since about 1994, and may have existed since 1983. (See Plaintiff's April 24, 2003 E.B.T., p. 22, 104-5,108, at Defendants' Exhibit "F").[FN8] Dr. Ward, who reviewed Plaintiff's medical records, describes the numerous times, between 1993 and 1998,when Plaintiff had been advised to undergo surgery for the left inguinal hernia. (See Dr. Ward's Affirmation, p. 2-3, at Defendants' Exhibit "T")

In addition, Plaintiff concedes that he "must have signed a consent form" prior to surgery, and recognized his signature on LENOX HILL HOSPITAL's [*6]Consent to Surgical Procedure form. [FN9] That form was also signed by Defendant Dr. NUNEZ, and a witness. (See Lenox Hill Hospital's Consent to Surgical Procedure Form, dated November 18, 1998, in Defendants' Exhibit "J"). By signing this document, Plaintiff acknowledged, in part, that: The purpose of the surgical procedure(s)/invasive test(s)/procedure(s) and/or treatment(s) [was] explained to [him] and [he was] also...informed of the expected benefits and possible complications, attendant discomforts and risks that may arise, as well as possible alternatives to proposed treatment, including no treatment. The attendant risks of no treatment were also discussed.

(See Lenox Hill Hospital's Consent to Surgical Procedure form, in Defendants' Exhibit "J").

The proponent of a summary judgment motion carries the initial burden to tender sufficient evidence to demonstrate as a matter of law the absence of a material issue of fact. See Alvarez v. Prospect Hospital, 68 NY2d 320, 324, 501 NE2d 572, 508 NYS2d 923 (1986).

On this record, Defendants' submissions, in support of their summary judgment motion, do satisfy the prima facie showing required to warrant judgment as a matter of law.

Since that initial burden was satisfied, the burden shifted to the Plaintiff to "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez, p. 324, 326-7. Margolese v. Uribe, 238 AD2d 164, 655 NYS2d 524 (1st Dept. 1997).

Plaintiff's Counsel opposes Defendants' Motion merely by submitting his own Affirmation, and the unsworn letter by Dr. Arnold Melman. Plaintiff, himself, does not even submit his own Affidavit.

"In a medical malpractice action, expert medical opinion evidence is required to demonstrate merit." Fiore v. Galang, 64 NY2d 999 (1985). This is because medical malpractice actions concern matters which are not "within the ordinary experience of lay persons." Id., p.1001. In a medical malpractice case, the "absence of a proper affidavit of merit is a death blow to Plaintiff's case." Ramos v. Lapommeray, 135 AD2d 439 (1st Dept. 1987)."In order to defeat Defendant's motion for summary judgment, some statement of expert medical [*7]opinion was required to demonstrate the viability of the ... theory of liability hypothesized by Plaintiff's Counsel." Alvarez v. Prospect Hospital, 68 NY2d 320, 327 (1986).

"An affirmation by Counsel is without evidentiary value and thus unavailing." Zuckerman v. City of NY, 49 NY2d 557, 563 (1980).

An expert's "unsworn letter report was not evidentiary proof in admissible form". Banco Popular North America v. Victory Taxi Management, 1 NY3d 281 (2004).

Where, as here, the report of an examining physician "is neither affirmed nor sworn to", it is proper for the Court to refuse to consider it. Simms v. APA Truck Leasing Corp., 14 AD3d 322, 788 NYS2d 63 (1st Dept. 2005).

Accordingly, on this record, this action is dismissed. This constitutes the decision and order of this court.

Dated: December 19, 2005

George D. Salerno, J.S.C. Footnotes

Footnote 1: That the hernia was "incarcerated" means that "the bowel was trapped in the scrotal sac." (See Dr. Ward's Affirmation, p. 3, at Defendants' Exhibit "T").

Footnote 2: "A hernia is the protruding of an organ ... through an abnormal opening in the wall that usually contains it. An inguinal hernia, as Plaintiff had, occurs when the intestines or bowel is pushed through a hole in the inguinal canal down into the groin." (See Dr. Ward's Reply Affirmation, dated July 13, 2005, in Defendants' Reply).

Footnote 3: It is noted that the Complaint is verified by Counsel, not by Plaintiff, himself. (See Complaint, at Defendants' Exhibit "A").

Footnote 4: "Omentum" is the clinical term for the abdominal wall lining, (See Dr. Ward's Affirmation, p. 5, at Defendants' Exhibit "T").

Footnote 5: With respect to the latter allegation, it is noted that Dr.Melman does not even, actually, state that he believed that Dr. NUNEZ had placed the omentum in the left scrotum.

Footnote 6: Dr. Ward considered: Plaintiff's bill of particulars, EBT transcripts of the plaintiff; Dr. Birns'

Physical Examination report; Dr. Melman's report; and medical records from Lenox Hill Hospital; Park View Nursing Home; Dr. Schaefer; Bronx Lebanon Hospital; Jacobi Medical Center; Montefiore Medical Center; NYU Medical Center; New York Presbyterian Hospital; Dr. Richard Ames; Dr. Frank Vieth; Dr. Peter Lee; St. Johns Hospital of Queens; Dr. Robert Haar; Dr. Martin Manin; Jewish Home & Hospital; and Beth Israel Medical Center.

(See Dr. Ward's Affirmation, p.1, at Defendants' Exhibit "T").

Footnote 7: "Omentum" is the clinical term for the abdominal wall lining, (See Dr. Ward's Affirmation, p. 5, at Defendants' Exhibit "T").

Footnote 8: For example, in the Beth Israel Medical Center Emergency Department records, dated November 17, 1998, it is noted that Plaintiff had a large left inguinal hernia for 15 years. (See Defendant's Exhibit "I". See also, Dr. Ward's Affirmation, p. 2-3, at Defendants' Exhibit "T")

Footnote 9: (See Plaintiff's E.B.T., p. 49, 52, dated April 24, 2003, at Defendants' Exhibit "F").