Henry v Staten Is. Univ. Hosp.

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Henry v Staten Is. Univ. Hosp. 2011 NY Slip Op 33368(U) December 7, 2011 Supreme Court, Nassau County Docket Number: 11224/06 Judge: Michele M. Woodard Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU DEBORAH HENRY and PAUL HENRY MICHELE M. WOODARD Plaintiffs TRlAL/IAS Par -against- Index No. : 11224/06 Motion Seq. No. : 03 & 04 STATEN ISLAND UNIVERSITY HOSPITAL GIL LEVY , M. , LYN RAPP , M. D. and P. KAMAL! , M. Defendants. DECISION AND ORDER Papers Read on this Motion: Defendants ' Staten Island University Hospital , Gil s Notice of Levy, M. D. and P. Kamali , M. Motion Defendant Lynn Rapp, M. s Notice of Cross- Motion Defendant Lynn Rapp, M. D.'s Affirmation in Support In motion sequence number three , the Defendants , Staten Island University Hospital and Gil Levy, M. D. in the above captioned medical malpractice action , for an order of this Cour , pursuant to Rule 3212 ofthe CPLR , granting summar judgment in favor ofthese defendants dismissing the Plaintiffs ' Verified Complaint. In motion sequence number four , defendant Lyn Rapp, M. D. moves for the same relief as the Staten Island defendants. Initially, it is noted that the Defendant , P. Kamali , M. , has been released from the instant action. Based upon all the papers submitted for this Cour' s consideration , the Cour makes the following findings of fact solely for the purose of determining the hereinabove described motion and cross-motion. The Plaintiff, Deborah Henr, first presented to the Defendant , Lynn Rapp, M. , on November [* 2] 2002 , for treatment regarding irregular periods and fibroids. Dr. Rapp referred the Plaintiff for a pelvic ultrasound , which was performed on November 29 2002 and revealed an heterogeneously enlarged and retrofle)(ed uterus with three distinct fibroids. The Plaintiff returned to Dr. Rapp s office on July 25 2003 , at which time she complained of having bleeding after intercourse and irregular cycles every 18- 31 days. Dr. Rapp noted that the Plaintiff had an 8 cm fibroid on the right side which seemed to be pushing into the cervical canal. A repeat pelvic ultrasound , performed on August 29 2003, indicated that the Plaintiff had an enlarged uterus with multiple fibroids and that her left ovar contained multiple cysts with one comple)( cyst. In addition , the Plaintiffs uterus was noted to have grown from 8. 0 )( 4. 1 )( 6.4 cm in November 2002 , to 14. 5)( 6.1 )( 7.1 cm in August 2003. Each of the Plaintiffs fibroids was noted to be significantly larger than they had been in the previous study. Thereafter the Plaintiff presented to Dr. Rapp on September 15 , 2003 and October 14 2003 wherein Dr. Rapp discussed with the Plaintiff the risks , benefits and complications of a total abdominal hysterectomy, a bilateral salpingo-oophorectomy (BSO) or a unilateral salpingo-oophorectomy (USO). On Januar 22 2004 , the Plaintiff was admitted to the Defendant Staten Island University Hospital , by Dr. Rapp. On Januar 22 2004 , the Plaintiff underwent a total abdominal hysterectomy with repair of cystotomy performed by Dr. Rapp at Staten Island University Hospital. Dr. Rapp was assisted during this procedure by the Defendant , P. Kamali , M. , a resident at Staten Island University Hospital. Prior to the star of surgery on Januar 22 2004 , a Foley Catheter was placed. Dr. Rapp made a pfanenstiel incision, which he caried down through the subcutaneous tissue to the fascia using electrocautery, and then e)(tended bilaterally using Kelly clamps and electrocautery. He then grasped [* 3] the upper and lower aspects of the fascia with Kocher clamps , and then they were separated from the underlying rectus abdominis muscles. Thereafter , Dr. Rapp further separated the rectus abdominis muscles using blunt dissection. The peritoneum was entered into bluntly and fuher dissected and opened with Metzenbaum scissors. Following the dissection and opening of the peritoneum , Dr. Rapp placed an O' Connor- Sullvan self-retaining retractor inside the Plaintiffs abdominal cavity and packed the bowel using moist lap pads. The Plaintiff was then placed in the Trendelenburg position and the upper and lower blades of the O' Connor- Sullvan retractor were applied , allowing for visualization of the uterus. Upon visualization of the uterus , Dr. Rapp observed a large fibroid , measuring 9 centimeters , in the operative field , which he surgically removed. Dr. Rapp then used two Kocher clamps to grasp the cornua ofthe uterus (the area where the fallopian tubes emerge from the uterus) for retraction. Round ligaments on both sides were then clamped , transected and suture ligated using 0 Vicryl. The anterior leaf of the broad ligament was incised along the uterus to the bladder reflection in the midline from both sides , and the bladder was then dissected gently from the lower uterine segment. Following this , Dr. Rapp sponge-sticked and sharly dissected the cervi)(. Subsequently, the utero-ovarian ligaments , the uterine areries and the uterosacral ligaments were transected and suture ligated with 0 Vicryl. Once this was done , the cervi)( and uterus were removed using electrocautery and the vaginal cuff angles were closed with figure-eight 0 Vicryl sutures. The remainder of the vaginal cuff was then closed using both ruing, locking sutures and figure-eight sutures. After closing the vaginal cuff, Dr. Rapp observed blood in the Foley Catheter and consequently [* 4] he removed the O' Connor- Sullivan bladder retractor and e)(amined the bladder. Upon e)(amination Dr. Rapp observed an appro)(imately 2 centimeter rent on the posterior fundal dome of the bladder. Dr. Rapp then called for a urogynecology consult and defendant Dr. Gil Levy scrubbed into surgery. Indigo Carmine was injected intravenously and the ureter jets were visualized in both the left and right side of the bladder. It was noted that the injur to the bladder did not compromise the entrance of the ureters onto the bladder. Dr. Levy closed the tear using Vicryl sutures. After several days of post-operative care , the Plaintiff was discharged from Staten Island University Hospital on Januar 25 , 2004 and instructed to follow up with Dr. Rapp. The Plaintiff returned to Dr. Rapp s office on Januar 28 2004 for a post-operative consultation and/or e)(amination at which time she complained of diarhea. Dr. Rapp e)(amined the Plaintiff and found that she had a soft abdomen with no acute symptoms. The Plaintiff presented to Dr. Levy for two office appointments on Januar 29 , 2004 and Februar 4 , 2004. On Februar 4 , 2004 , Dr. Levy removed the Foley Catheter and normal bladder fuction returned. That evening, the Plaintiff began passing gas through her vagina. The Plaintiff began passing stool through her vagina the ne)(t morning. On Februar 6 , 2004 the Plaintiff presented to Dr. Rapp who performed a physical e)(amination of the Plaintiff. This e)(amination did not reveal any evidence of breakdown or fistulous tract. Dr. Rapp referred the Plaintiff for a sonogram and told her to consult with colorectal surgeon, Dr. Fran Lacqua. At this e)(amination the Plaintiff advised Dr. Rapp that she was having 10 bowel movements per day. The Plaintiff presented to Dr. Lacqua on Februar for a colonoscopy which was performed on Februar 24 , 2004. Dr. Lacqua referred the Plaintiff 27 2004. The colonoscopy revealed' non-specific [* 5] colitis and an opening to a rectal-vaginal fistula above the crypts anteriorly. From March to June 2004 , the Plaintiff treated with Dr. Lacqua for ulcerative colitis and symptoms related to the recto-vaginal fistula. Thereafter, Dr. Lacqua performed three attempted reparative surgeries on November 10 2004 , December 16 2005 and July 21 2006 which failed to correct the fistula. An endoanal ultrasound performed on the Plaintiff on December 7 , 2007 showed a small defection in the internal and e)(ternal anal sphincter , likely representing a recto-vaginal fistula. The rule in motions for summary judgment has been stated by the Appellate Division , Second Dept. , in Stewart Title Insurance Company Equitable Land Services, Inc. 207 AD2d 880 881 (2d Dept. 1994): It is well established that a par moving for summar judgment must prima facie showing of entitlement as a matter of law , offering sufficient evidence to demonstrate the absence of any material issues of fact (Winegradv New York Univ. Med. Center 64 NY2d 851 , 853; Zuckerman City of New York 49 NY2d 557 562). Of course, summar judgment is a drastic remedy and should not be granted where there is any doubt as to the e)(istence of a triable issue McAulife , 97 (State Bank AD2d 607 (3 Dept 1983)), but once aprimafacie showing has been made , the burden shifts to the par opposing the motion for summar judgment to produce evidentiar proof in admissible form sufficient to make a establish material issues of fact which require a trial of the action Prospect Hosp. 68 NY2d 320 324; Zuckerman (Alverez City of New York supra at p. 562). CPLR Rule ~ 3 212(b) requires that for a Cour to grant summar, in favor of a Defendant , the Cour must determine as a matter of law that there is no merit to the Plaintiff s causes of action. Again the evidence submitted in support of the instant motions must b e viewed in the light most favorable to the Plaintiffs herein (Marine Midland Bank, NA. Dino Arties Automatic Transmission Co" 168 AD2d 610 (2d Dept 1990)). Summar judgment shall be granted only when there are no issues of [* 6] material fact and the evidence requires the cour to direct judgment in favor of the movant as a matter of law (Friends of Animals, Inc, Associated Fur Mfrs. 46 NY2d 1065 , (1979)). In support of their motion for summar judgment , the Defendants , Staten Island University Hospital and Gil Leavy, M. D. have submitted the Affidavit of Howard G. Nathanson , M. , a physician specializing in Obstetrics and Gynecology who has been licensed to practice medicine in the State of New York since 1973 and Board Certified in Obstetrics and Gynecology since 1973. After a review of the medical records pertaining to the Plaintiff, Deborah Henr, maintained the Defendant , Staten Island University Hospital during her Januar 22 2004 to Januar 25 2004 hospital admission , the medical records of the Defendant, Gil Leavy, MD. and all of the pleadings herein , Dr. Nathanson states inter alia: . . . to a reasonable degree of medical certainty that the actions taken by SIUH and Dr. Levy was at all times medically reasonable and appropriate under the circumstances. There were no deparures from the accepted standard of care committed by SlUR or Dr. Levy at any time during their treatment of the Plaintiff. " In support of his motion for summar judgment , the Defendant Lyn Rapp, M. D. has submitted the Affirmation of Robert F. Porges , M. , a physician licensed by the State of New York and Board Certified in Obstetrics and Gynecology and Mark Dobriner, M. , a physician licensed by the State of New York and Board Certified in both Surgery and Colon and Rectal Surgery. Both physicians submit their hereinbelow opinions after their review of the medical records of the Plaintiff, Deborah Henr, the deposition testimony in this action and the Plaintiffs Verified Bil Particulars. Dr. Porges states in his Affirmation: . . . itis my opinion to a reasonable degree of medical certainty that Dr. Rapp at [* 7] all times acted in accordance with accepted standards of good medical practice in his treatment of Plaintiff DEBORAH HENRY. Moreover , Plaintiff s alleged injuries were not due to any departure from good and accepted medical practice by Dr. RAPP. All of my opinions set forth in this Affirmation are to a reasonable degree of medical certainty. Dr. Dobriner states in his Affirmation: . . . it is my opinion to a reasonable degree of medical certainty that at all times Dr. RAPP acted in accordance with accepted standards of good medical practice in his treatment of Plaintiff DEBORAH HENRY. Further, none of the alleged injuries Plaintiff claims to have sustained resulted from the total abdominal hysterectomy performed by DR. RAPP. All of my opinions set forth in this Affirmation are to a reasonable degree of medical certainty. In this medical malpractice action motion for sumar judgment , the Defendant physician and a medical provider have the initial burden of establishing the absence of any deparure accepted medical practice (Keevan v Rifin A physician and a medical provider make a from good and 41 AD3d 661 12d Dept 2007)). prima facie showing of entitlement to summar judgment in a medical malpractice action by the submission of medical e)(pert' Affidavits/Affirmations which are based on medical records of the Plaintiff and upon the submission of same in support of their motion , the burden of proof shifts to the Plaintiff to demonstrate the e)(istence of triable issues of fact 2006); Simms (Wicksman Nassau County Healthcare Corporation 27 AD3d 644 (2d Dept North Shore University Hospital 192 AD2d 700 (2d Dept 1993)). With respect to the Plaintiff s Second Cause of Action for Lack of Informed Consent , Section 2805- d of the Public Health Law states , in pertinent par: i) Lack of informed consent means the failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonable foreseeable risks and benefits involved as a reasonable medical , dental or podiatric practitioner under similar circumstances would have disclosed , in a manner permitting the patient to make a knowledgeable evaluation. [* 8] ii) For a cause of action therefore it must be established that a reasonably prudent person in the patient's position would not have undergone the treatment or diagnosis if he had been fully informed and that the lack of informed consent is a pro)(imate cause , the injur or condition for which recovery is sought." This Court' s review ofthe oral deposition before trial ofthe Plaintiff, Deborah Henr, submitted in support of the motion and cross-motion , does not find any testimony by the Plaintiff that the Defendants herein failed to inform her of reasonably foreseeable risks associated with her medical treatments , hospitalization and surgical procedures or failed to disclose alternatives thereto. There being no opposition submitted with respect to the instant motion and cross-motion , it is hereby ORDERED , that the motions and cross-motion are herewith Plaintiffs Verified granted on default and the dismissed. Complaint is herewith This constitutes the Decision and Order of the Cour. DATED: December 7, 2011 Mineola , N. Y. 11501 ENTER: HON. MICHELE M. WOODAR XXX F:\Henry v Staten Island University Hosp JLH.wpd ENTERED DEC 13 2011 NASSAU COUNTY COUNTY CLIM(' OFFtCE

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