Makinen v Torelli

Annotate this Case

Download PDF

Makinen v Torelli 2012 NY Slip Op 31373(U) May 8, 2012 Sup Ct, Suffolk County Docket Number: 0029963/2006 Judge: John J.J. Jones Jr 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] INDEX NO.: 0029963/2006 SUBMIT DATE: 2 / 1/2012 M1-N. SEQ.#: 009; 010 - SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 10 SUFFOLK COUNTY Present: HON. JOHN J.J. JONES, JR. Justice MOTION DATE: 009 - 8/17/2011010 - 9/23/20111 MOTION NO.: 009 - MOT D 010 - MOT D ......................................................... X CEANNA MAKINEN, Individually and as the Administratrix of the Estate of MICHAEL MAKlNEN, Deceased, Plaintiffs, DUFFY Et DUFFY, ESQS. Attys. for Plaintiffs 1370 Rex Corp. Plaza Uniondale, NY 11556 Mcl-IENRY, HORAN Et LAPPING, PC Attys. for De.fendnants Lon;? Island Diagnostic Imaging, PC 68013 Jericho Turnpike, Suite 202E Syosset, NY 11791 -against- MICHAEL WILLIAM TORELLI, M.D., SOUTH SHORE FAMILY PRACTICE ASSOCIATES, P.C., IRENE : AUDREY SCHULMAN, M.D., LONG ISLAND MEDICAL DIAGNOSTIC IMAGING, P.C., JOHN : STEHPEN WALSH, M.D. and KERRI ANN PETITPAIN, R.N., L.N.P., KELLER, O REILLY Et WATSON, ESQS. Attys. for Defendants Michael William Torelli, M . D. and South Shore ,Family Practice Associates, PC 242 Crossways Park West Woodbury, NY 11797 CATALAN0 GALLARDO & PETROPOULOS Attys. for Defendant Kerri Ann Petitpain, R.N., L.N.P. 100 Jericho Quadrangle, Suite 214 Jericho, NY 11753 Defendants. Upon the following papers numbered 1 t o 44 read on this application for reargument of prior motion and cross-motion for summary judgment and separate motion t o reargue application for non-party disclosure; Notice of MotionlOrder to Show Cause and supporting papers 1-31: 30-42; 1 [* 2] Notice of Cross Motion and supporting papers ; Answering Affidavits and supporting papers , it i s 32-33; 34-36; 43-44 ; Replying Affidavits and supporting papers 37-38 ; Other ORDERED that this motion by plaintiff, Ceanna Makinen, individually and as the Administratrix of the Estate of Michael Makinen, deceased, for an order granting leave to reargue the motion by defendant Kerri Ann Petitpain and the cross-motion by defendants Michael Torelli and South Shore Family Practice Associates, P.C., for summary judgment dismissing the complaint i s granted, and the separate motion by defendant Long IslandMedical Diagnostic Imaging, P.C., for an order granting leave to reargue the motion for an order directing non-party County of Suffolk, Department of Health Services, Division of MedicalLegal Investigations and Forensic Sciences, to produce a complete, certified copy of the autopsy records of the deceased, Michael Makinen, i s also granted, and upon such reargument, the Order of this Court dated July 7, 201 1 i s hereby recalled arid vacated in i t s entirety; and it i s further ORDERED that the motion by defendant Kerri Ann Petitpain and the cross-motion by defendants Michael Torelli and South Shore Family Practice .Associates, P.C., for sumrnary judgment dismissing the complaint are granted only to the extent that the plaintiff s third cause of action for recovery for lack of informed consent i s dismissed and in all other respects the motion and cross-motion are denied; and it i s further ORDERED that the motion by defendant Long Island Medical Diagnostic ImaQng, P.C., for an order directing non-party County of Suffolk, Department of Health Serviices, Division of Medical-Legal Investigations and Forensic Sciences, t o produce a complete, certified copy of the autopsy records of the deceased, Michael Makinen, i s granted, and a complete, certified copy of the aforementioned autopsy records shall be produced upon payment of appropriate fees, if any. Plaintiff Ceanna Makinen, individually and as the Administrator of the Estate of Michael Makinen, commenced this action t o recover damages for alleged medical malpractice, wrongful death, lack of informed consent, and loss of smvices against defendants. By Orders of the Court dated September 17, 2009, and October 5, 2009, summary judgment was grainted in favor of Irene Audrey Schulman, M.D. and John Stephen Walsh, M.D., respectively, and the complaint was dismissed as against each of them. Thereafter, (defendantKerri Ann Petitpain moved and defendants Michael William Torelli and South Shore Family Practice Associates, P.C. (South Shore), cross-moved for an order granting summary judgment in their favor dismissing the complaint against them. In addition, defendant Long Island Medical Diagnostic Imaging, P.C., moved for an order directing the disclosure of a complete, certified copy of records maintained by the Suffolk County Medical Examiner s Office pertaining to the autopsy performed on Michael Makinen. By Order of this Court dated .July 7, 201 1, the applications for summary judgment were granted and the motion to compel non-party disclosure was denied. Plaintiff now moves for an order granting leave to reargue the prior applications. Defendants have opposed the motion. Defendant Long Island Medical Diagnostic Imaging, P.C. 2 [* 3] has also moved to reargue i t s application. It i s well settled that motions for reargument. are addressed t o the sound discretion of the court and may be granted upon a showing that the court overlooked or misapprehended the relevant facts or misapplied a controlling principle of law (Three Brothers Estates, Inc. v Guli, 205 AD2d 525, 613 NYS2d 56 [2d Dept 19941; Swenning v Wankel, 140 AD2d 428, 528 NYS2d 130 [2d Dept 1988]; Foley v Roche, 68 AD2d 558, 418 NYS2d 588 [ I s t Dept 19791). It i s the determination of this Court that review and reconsideration of these applications i s appropriate. The law i s well-established that summary judgment i s a drastic remedy to be granted only when there i s clearly no genuine issue of fact t o be presented at trial (see Andre v Pomeroy, 35 NY2d 361, 362 NYS2d 131, 320 NE2d 853 [1074]; Benincasa v Garrubo, 141 AD2d 636, 529 NYS2d 797 [2d Dept 19881). The function of the court in determining a motion for summary judgment i s issue finding, not issue determination (Pnntote Big Alpha Foods, Inc. v Schefman, 121 AD2d 295, 503 NYS2d 58 [ I s t Dept 19841). The courts have repeatedly Iield that in order t o obtain summary judgment, movant niust establish i t s claims or defenses sufficiently t o warrant a court s directing judgment in i t s favor as a matter of law (see Gilbert Frank Corp. v Federal Insurance Co., 70 NY2d 966, 5125NYSZd 793, 520 NE2d 512 [1988], citing Zuckerman v City of New York, 49 NY2d 557, 427 NYS:Zd 595, 404 NE2d 718 [1980]; Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790, 390 NE2d 298 [1979]). The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which the opposing claim rests (see Gilbert Frank Corp. v Federal Insurance Co., supra). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 AD2d 976, 470 NYS2d 239 [4th Dept 19831). Michael Makinen was a patient of South Shore from 2001 until his death on April 17, 2005 at the age of 42. Defendant Kerri Ann Petitpain, R.N., L.N.P., testified a t her deposition that she examined, evaluated, diagnosed and prepared treatment plans for patients a t South Shore. When she saw Makinen on April 13, 2005, he complained of chest congestion, !;ore throat and upper back pain/spasms. Makinen was noted t o have a history of back pain. He was also noted to be a cigarette smoker. An examination was undertaken and a blood pressure reading of 95/58 was noted. A repeat blood pressure vias taken which read 100/68. Petitpain testified that a normal blood pressure reading i s 120/80, and that hypertension can cause cardiomyopathy, a heart attack, a stroke, an aortic dissection, and that it can lead to worsening heart disease. In addition, Petitpain explained in her deposition testimony that an aortic dissection occurs when the inner wall of the lining of the aorta dissects, or splits, and that it i s caused by high pressure. I t was also her testimony that she reviewed office notes during Makinen s visit on April 13, 2005, and noticed what his blood pressure readings were on other occasions that he was in the office. On Februiary 23, 2005, his blood pressure was 126/88, on November 22, 2004 his blood pressure was 160/100, on an unspecified previous date it was 152/120, on November 17,2004 it was 130/80, on July 21, 2004 it was 141/91, and on June 7, 2004 his blood pressure was 132/82. Petitpain also testified that Makinen s blood 3 [* 4] pressure readings during those prior visits was not within the same range at 100/68 when the reading was repeated on April 13, 2005. Petitpain also hoted that Makinen had a history of high blood pressure, that he was not on blood pressure rnedication but was taking medicaltion for anxiety and depression. She diagnosed Makinen t o have thoracic pain, muscular spasm, bronchitis, upper respiratory infection with cough, arid pharyngitis, and noted that strep should be ruled out. Petitpain never considered performing an EKG on Makinen. Petitpain s notes also indicated that Makinen was given a pulmonary function test which showed a decreased FEVI with obstruction as well as low vital c,apacity, possibly from a concomitant restrictive defect, and notes were made about poor effort and patient s difficulty secondary t o increased coughing. A note was made to repeat the spirometry. Makinen returned t o South Shore on April 16, 2005, but .this time he was examined by Michael W. Torelli, M.D., who reviewed Nurse Petitpain s notes from her April 13thevaluation of Mr. Makinen. According t o Torelli s deposition testimony, the notes included complaints of thoracic pain and muscle spasm, but no note of any histlory of trauma. Notes about Makinen s complaints indicated that he was being seen as a foll.ow-up for bronchitis and that he was s t i l l sick with mild fatigue. Skin was moist and cool, arid the lungs were positive for wheeze and rhonchi. Blood pressure was 141/86, and temperature was normal. A repeat spirometry with nebulizer again showed that Makinen had difficulty breathing, but his breathing felt improved after he received the nebulizer. Dr. 1-orelli diagnosed Mr. Mak,inen with bronchitis and he referred Makinen to Long Island Medical Diagnostic Imaging, P.C.. for a chest x-ray to rule out pneumonia. On April 16, 2005, a chest x-ray was performed and read by Dr. Seth Steinman, who saw infiltrate in the lower lobes and who concluded that iMr. Makinen had pneumonia. At: his deposition, Dr. Steinman compared a chest x-ray, PA view, taken on November 17, 2004 with the April 16, 2005 x-ray, and noted that there was a change in the width of the mediastiinum between the two views. He testified that the finding of widening of the mediastinum can be seen with an aortic dissection , the symptoms of which included severe and acute oinset of chest pain or back pain. Dr. Steinman s interpretation of Mr. Makinen s x-ray was confirmed by Dr. Schulman in her report dated April 18, 2005. The transcript of deposition testimony given by non-party Gwen Harleman, M.D., was also submitted by defendant in support of the underlying application. Dr. Harkman performed the autopsy on Makinen and found that the cause of death was cardiac tamponade due to ruptured aortic dissection, with a contributory factor of hypertensive-type cardiovascular disease. The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted community standards of practice, and evidence that such deviation or departure was a proximate cause of injury or damage (Ballek v Aldana-Bernier, -AD3d -, 2012 NY App Div LEXlS 2827, 2-3 [2d Dept 20121, citing Castro v New York City Health & Hosps. Corp., 74 AD3d 1005, 1006, 903 NYS2d 152). On a mlotion for summary judgmlent, 4 [* 5] a defendant physician has the burden of establishing the atbsence of any deviation or departure, or that the patient was not injured thereby (and, in opposition, the plaintiff need only raise a triable issue of fact as to elements on which ,the defendant has met i t s prima facie burden (Ballek v Alduna-Bernier, __ AD3d -, 2012 NY App Div LEXIS 2827, 2-3 [2d Dept 20121, citing Stukas v Streiter, 83 AD3d 18, 30, 918 N r S2d 176). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient. evidence t o demonstrate the absence of any material issues of fact (Alvurez v Prospect Hosp., 68 NY2d 320, 324, 501 NE2d 572, 508 NYS2d 923 [1986], Winegrad v New York Umiv. Mecl. Center, 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562; Siil man v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Alvarez vProspect Hosp., sripra at 68 NY2d 324, citing Winegrad v New York Univ. Med. Center, supra a t 64 NY2d 853). Here, a review of the submissions in the underlying motion demonstrate that the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. Petitpain acknowledged in her deposition testimony that the decedent had a history of high blood pressure readings taken during his visits to South Shore, and she admitted that hypertension can cause cardiomyopathy, a heart attack, a stroke, an aortic dissection, and it can lead t o worsening heart disease. Moreover, it was noted that blood pressure readings are evaluated in the context of a patient s history and, therefore, the Low blood pressure readings taken at the time of decedent s visit were significant in the context of Makinen s history of high blood pressure readings. Furthermore, Petitpain admitted that she did not consider any other causes of Makinen s upper back palin a t the time of his visit on April 13, 2005, other than that it was a result of spasm from an upper respiratory infection. Even if defendants were found to have sustained their burden on the applications for summary judgment, the affirmation of plaintiff s expert physician, redacted pursuant t o McCarty v Community Hosp., 203 AD2d 432, 610 NYS12d588 (2d Dept 1994), raises triable issues of fact. It i s the expert s contention that the decedent Makinen had hypertension which, left untreated, led to physiological changes in the heart resulting in the development of aortic dissection, which ruptured and caused cardiac tamponade, the immediate cause of his death. Symptoms of dissection include back or chest pain, dizziness, difficulty breathing, fainting, anxiety, and sweating/clammy skin. High blood pressure and cigarette smoking can increase the risk of an aneurysm. According to plaintiff s expert, typical symptorns of thoracic aortic aneurysms are pain (usually high in the back), cough, and wheezing. It i s asserted that aortic dissection i s life threatening but can be cured if surgery i s perfoirmed before the aorta ruptures. It i s also contended that good and accepted medical practice in 2005 for patients with a history of hypertension would iriclude the institution of an appropriate medication regimen as well as a cardiac work-up, which was not done. In the opinion of the expert, the clinician who evaluates a patient with a history of hypertensive blood pressure readings who presents with thoracic back pain, coughing, congestion and wheezing and who is found to have hypotensive pressure readings should be considered for aortic aneurysm and 5 [* 6] aortic dissection in the clinician s differential diagnosis. In addition, the evidence that Makinen had difficulty breathing i s consistent with aortic dissection and/or aneurysm. In the opinion of the expert, the defendants departed from accepted standards of care in failing t o appropriately elicit information about Makinen s back pain, in failing to properly examine him and arrange for appropriate diagnostic studies, in failing to include acute cardiac issues on the differential diagnosis and in failing t o properly evaluate his condition, and that the departures were substantial contributing factors in the progression of his cardiac condition and his ultimate demise. Thus, the evidence before this Court raises issues of fact sufficient to require a trial. The record before this Court shows that the third cause of action in the complaint for recovery for lack of informed consent must be dismissed1 (see Berger ~ B e c k e r272 AD2d 565, , 709 NYS2d 41 8 [2d Dept 2000]), but i n all other respects the denial of defendants motion and cross-motion for summary judgment i s warranted. DATED: J.S.C. CHECK ONE: [ ] FINAL DISPOSITION [XI NON-FINAL DISPOSITION 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.