Burroughs v Rodriguez
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Burroughs v Rodriguez 2013 NY Slip Op 31380(U) June 24, 2013 Supreme Court, New York County Docket Number: 150177/08 Judge: Alice Schlesinger 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. UED ON 612812013 [* 1] .;',Wh',? SUPREME CQURT OF THE STATE OF NEW YORK NEW YORK COUNTY 7 Index Number : 150177/20O8 BURROUGHS, BARBARA INDEX NO. vs. MOTIONDATE RODRIGUEZ, JOSE A. SEQUENCE NUMBER : 002 MOTIOW SIN. NO. SUMMARY JUDGMENT The following p p n numbered 1 to ae, Notice of MotioWOrder t Show Cause o Answering Afcldavitu Replying Affldavb - Exhibib upon the formgoing papeq, It ir 0 r - ,were read on this motion tdfor -Affidavits -Exhibits thpt this motion is INo(*). IHais,. I Wr). q r d aM.d I FILED 1 JUN 24 2013 Dated: 2. CHECK AS APPROPRIATE: .........ll...l.......I... IJ((IOTION IS: WGRANTED 5. CHECK IF APPROPRIATE: ...,,,.. ,..,,... .l,.... ............. DENIED DGRCJsTED IN PART 0SETfLE ORDER DO NOT POST OTHER SUBMIT ORMR ~1FWARY REFERENCE TENT \ [* 2] Index No. 150177/08 Mot. Seq. Nos.002 & 003 Plaintiff, -againstJOSE A. RODRIGUEZ, M.D., LISA MARIE PATRICK, M.D., JAMES P. HALPER, M.D., RONIT LAVIE, M.D., AND LENOX HILL HOSPITAL, **. " *"l* Defendapts. Barbara Burroughs, while recovemu I a occurrad on December 27,2006, fell from her bed two days later and sustained injury, This fall, which counsel for Ms.'*6urroughsmaintains resulted in "five separate rernedjal surgeries, ., numerous extended hospital stays, costly remedial aids and medications, further ambulatory limitations, and extensive pain and suffering," is the basis of this lawsuit. (See 36 of Heitz' Affirmation in Opposition to Summary Judgment and in Support of Cross- motion). The defendants against whom the suit was brought are the following: Dr. Jose A. Rodriguez, th$ surgeon who performed the December 27,2006 hip operation; Dr. Lisa Marie Patrick, a resident in Psychiatry at the Hospital who, with an attending psychiatrist Dr. James P. Halper, evaluatedthe plaintiff at about twelve noonon the twenty-ninth, about two hours and forty-five minutes before her fall, which occurred at approximately2 4 5 p.m.; Dr. Halper, who aiagnosed plaintiff as suffering from delirium at the noon evaluation; Dr. Ronit Lavie, an ahending internist (apparently incorrectly identifiedas a "psychiatrist" in 731 of the Heitz affil'hation) who saw the plaintiff at about 1O:OO a.m. on the twenty-ninth and wrote in the Progress Notes to hold Klonopin, but who did not write a follow-up order; and Lenox Hill Hospital ("LHH"), particularly the nursing staff there. [* 3] Before this Court are motions for summary judgment by Drs. Rodrigwez and Patrick and LHH. Appropriately, these motions were served on all parties through their counsel. These motions are all supported by affirmations from well-credentialed physicians. The motion on behalf of Dr. Rodriguez is supported by Dr. Roger Levy, a board certified Orthopedic Surgeon. In a thorough affirmation, he discusses all the claims made against Dr. Rodriguez, pre and post surgery (Exh F). He opines that all the claims are without merit and explains convincingly why that is so. Clearly, via his statement, a prima facie case for summdy judgment has been made out. No one opposes his motion. Apropos of plaintiffs cross-motion discussed later, No one includes defendants Dr. Malper and Dr. Lavie. Dr. Patrick s motion is supported by Dr. Philip R. Muskin, who is board certified in Psychiatry, Geriatric Psychiatry and Psychosomatic Medicine and is Chief of Consultation Liaison Psychiatry at Columbia University Medical Center (Exh A). He opines as to the lack of validity ofany of the claims against Dr. Patrick, but also against Lenox Hill Hospital. In the latter regard, he says that he is abundantly familiar with the nursing standards of care as they relate to the claims, including nursing assessment and patient safety. With regard to opinions expressed on behalf of Dr.Patrick, he informs that he has thirty years of knowledge and experience in the field of Psychiatry. He states that Dr. Patrick was a Psychiatric Resident whose assessment of the plaintiff was consistent with standards of care in every respect. Specifically, he opines that her note in the chart demonstrates that together with Dr. Halper, she performed a thorough examination, reached approbriate conclusions, and recommended the appropriate interventions. Further, she had no obligation to obtain the patient s records from prior admissions. 2 i [* 4] Clearly, via Dr. Muskin's opinions vis-a-vis Dr. Patrick, a prima facia case has been made out. Again, no one opposes her motion. Therefore, with regard to both Dr. Rodriguez and Dr. Patrick, their motions are . , granted and the actions against each are dismissed. Also, in this regard, the cross-motion by plaintiff is granted. That cross-motion asks the Court to preclude any remaining defendants from asserting any claims of negligence against these defendants (now removed from the action) pursuant to CPLR Article 316. First of All, no party takes issue or opposes the cross-motion. . Secondly, such preclusion is prdpler because, as counsel for plaintiff argues, the Court's decisions here in favor of Drs. Rodriguez and Patrick are the procedural equivalent of a trial. As pointed out earlier, all parties were served with these motions. Therefore, it follows that all parties had an opportunity to be heard and/or contest any opinion of behalf of these doctors and their freedom from negligence. But no one did. Therefore, these decisions do constitute the law of this case and do prelude any remaining defendants from contesting any of these opinions at a l a t h time and/or at trial. As to the'kospital's motion, we have a very different situation. Plaintiff strenuously opposes the mdtion and in support of this opposition, submits two affirmations: the first from a highly qualified and experienced Registered Nurse, Doreen Johnson; and the second from Dr.' Stephen Marcus, a board certified Orthopedic Surgeon. Dr. Muskin for LHH first recounts the relevant events at the hospital relating'to Ms. Burroughs." All the experts proceed in this way. He begins his opinions with the comment that plbintiffs allegations as to what the Hospital should have done to prevent this accident (and plaintiff does make many such allegations as to this accident, an 3 ' [* 5] accident characterizedby plaintiff as preventable) represent a profoundmisunderstanding of the applicable standardsof care (729). He then refers to Ms. Burrough s chart to show that between 6:OO a.m. on December 29 and Ms. Burrough s fall at 2 4 5 p.m., she was seen by no fewer than three RN s, a Nurse Practitioner, six Doctors and at least one Nurse s Aide. Further, he points out that she was seen no fewer than three times in the forty-five minutes before her fall. Dr. Muskih believesthat the standard of care does not require a patient such as Ms. Burroughs to be monitored more frequently. In fact, in his opinion, there is no evidence to show that there bas a lack of monitoring. Further, this doctor believes that there was no indication here for one-to-one observation, a status of monitoring that plaintiff claims should have bedn used . Beside that, Dr. Muskin states, the staff cannot be blamed for anything less because a physician must order that high standard of dbservation before it is implemented. Referring to both Dr. Patrick s and Dr. Halpar s psychiatric evaluation of Ms. Burroughs, Dr. Muskin opines that they properly concluded that one-to-one observation was not indicated. (733). The abode is followed by a discussion of the Morse Fall scale, which is a way of determining a patient s risk level for a fall. Plaintiff complains that in Ms. Burrough s circumstance, her risk levelshould have been updatedand upgraded. But Dr. Muskinfeels otherwise and remarks that even without a formal upgradingto high risk , in every practical sense the staff treated her as if she was in that category. As to the circumstances of the fall, the doctor u&es that there was no reason for the nurses to suspect that this patient x would get out of bed on her own to use the bathroom, as she had only very recently urinated and defecated in her bed. 4 [* 6] Finally, Dr. Muskin opines that there was absolutely no reason here to use restraints of any kind. He explains that Ms. Burroughs was neither aggressive nor agitated nor 4 . sedated, and though she may have been disoriented, her consciousness was not impaired. (v41).Further, she met none of the criteria for restraints. , I With regard to the medication Klonopin, which can be used as $11 aid for alcohol withdrawal, the chart indicates it was begun then withheld. Dr. Muskin opines that this approach was pioper and played no part in the accident, contrary to the claims made by plaintiff. Ifind that kenox Hill Hospital, by its use of Or. Muskin s affirmation, has established a prima facie caie for summary judgment in its favor. But as stated earlier, plaintiff in this instancevery advely opposes the motion. And though in Reply counsel for LHH describes that opposition as conclusory , inadequate and based on rank speculation (terms regularly used by advocates for both sides in characterizing thgsir adversary s presentations), I find otherwise. In fact, I find that the opposition not only refutes Dr. Muskin s opihions, but it clearly establishes that there are legitimate i$sues here as to whether Ms. Butirough s fall from her bed was or was not preventable, and if the fall was preventable, what things should have been done that were not. Plaintiff asserts her opposition to the Hospital s mgtiot l mainly via the comprehensive statement made by Nurse Doreen Johnson, someone with impeccable educational and professional experience in Nursing who the Court finds is eminently qualified to disduss the issues in this case. As noted earlier, plaintiff also submits an affirmation from an orthopedic surgeon, Dr. Stephen Marcus. 5 [* 7] I Nurse Johnson begins her statement with a review of Ms. Burroughs therapeutic . history, going back to the year 2000 when she was in a rehabilitation center for substance abuse known as. FatherMortonAshley, Inc. in Maryland. It should be noted here that a key to the claims made by the plaintiff is that it was important for Lenox Hill Hospital to familiarize itself with an accurate history of plaintiffs psychiatric and physical issues in the years and months before this Hospital admission so as to understand the patient and provide her with the care she needed. In this regard, Nurse Johnson relates important events. In 2003, Ms. Burroughs fell down a flight of stairs wherein she knocked herself unconscious and broke a bone in her left ankle. The next day she was found and taken by ambulance to Jersey Shore University Medim1 Center, where on July 20, 2003, she underwent a psychiatric consultationthat included her history of alcohol dependency and attempts at Sighting this condition. Ms. Burroughs finally had surgery for her ankle at LHH on February 7, 2006. In June of that ye&, six months before the admission here, she again was admitted for surgery on her I& hip, which she had fractured in a fall the month before, This was her second fall in two weeks and, like the present incident, was from her bed. Dr. Katchis at Lenox Hill had performed the earlier surgeries, and Dr. Weiner parformed the hip procedure on June 28,2006. The day after that surgery on June 29, the plaintiff had been placed on one4o-one observation because af agitation and hallucinations regarding her . [* 8] At the December 27 admissipn, the one at issue here, no attempt was made to evaluate the admissionthat had occurred six months earlier. (Dr. Muskin opined that no one had qn obligation to do that). This time her risk assessment for fallhg was less than high risk and her Morse scale score was 35/100. Nurse Johnson, as all experts do, relates the events of December 29 when Ms. Burroughs was first observed to be disoriented at about 6:OO a.m. At around noon, when she saw Drs. Halper and Patrick she was suffering from delirium and told the doctors she believed she was in a Radisson Hotel and that the date was nine months earlier, / March 30, 2006. Clearly, these events established that the patient was disoriented as to time and place. Nurse Johnson describes Ms. Burroughs state as one of transient confusion, which she explains is known to cause a failure to comprehendone sown limitations. Based on this state, tobether with the patient s exhibited inability to control her bodily functions that afternoon, Nurse Johnson details multiple ,departures from nursing, and hospital standards of care. These include the failure to designate the plaintiff as a patient at high risk for fall, the failure to properly toilet her, the failure to recommend to her physicians that they should order one-to-one observation or to ask Gail, her daughter, who was with her this mother but who had to leave to pick up her children, to provide for+ supervision as it was necessary She also notes the failure to recommend four upright bed rails. This expert elaborate&on all of the above alleged departures. Finally, tHere is an issue here involving the medication Klonopin, which as stated earlier can be u&d to help a patient withdraw from alcohol. Ms. Burroughswas prescribed this medication on December 28 and she took it. On the 29 one of the doctors seeing [* 9] her, Dr. Lavie, wrote in her chart that the medicationshould be held . But she did not write an order to that effect. There is some controversy between counsel whether the medication in fact was stopped. The chart does seem to indicate that Ms. Burroughs I received a dose at 12:05 on the 2gth. In any event, Nurse Johnson says that it is the obligation of nurses to confirm what the precise instructions are regarding medication. Here, she opines with a reasonable degree of nursing care, the nurses departed from the standard of care by withholding Klonopin solely bn the basis of a doctor s note in the chart absent an order. Additionijr rly on the subject of Klonopin, as noted, plaintiff submits an affrmation from Or. Stephen Marcus, an Orthopedic Surgeon. His entire statement deals with the plaintiffs past history and the function and benefits of Klonopin to Ms. Burroughs. His opinion is that the plaintiffs fall wgs preventable and further that her failure to receive the benefit of Klonopinwas a substantial factor in the persistence of her delirium, which in turn increased her likelihood of falling. In this regard, Dr. Marcus speaks to the effectiveness of this drug in t h i n g symptoms of alcohol withdrawal, which this doctor believes the plaintiff was experiencing. But if it is stopped, it loses its effectiveness. As stated earlier, moving counsel submits a long Reply commenting adversely on virtually everything plaintiffs expert says. She argues that they are speculative opinions that make no sense. However, despite these accusations, I find that the plaintiff has sufficiently put into issue whether, if the Lenox Hill staff had done things differently to and for a patient in their care, Ms. Burroughs fall could have been prevented. The defense s says No but ttie plaintiff says Yes . That is why we have trials. And that i why the motion by the Hospital for summary judgment is denied. [* 10] Accordingly, it is hereby ORDERED that the motion for summary judgment by defendantJose A. Rodriguez, M.D., is grantedland the Clerk is directed to sever all claims against that defendant and enter judgment dismissing them; and it is further ORDERED that the motion for summary judgment by defendant Lisa Marie Patrick, M.D., is granted and the Clerk is directed to sever all claims against that defendant and enter judgment dismissing them; and it is further ORDERED that the motion for summaryjudgment by defendant Lenox Hill Hospital is denied; and if$is further ORDERGD that the plaintiffs cross-motion is granted add all remaining defendants in this action are precluded from asserting a CPLR Article 16 defense in connection with any acts or omissions by defendants Dr. Rodriguez and Dr. Patrick; and it is further ORDERED that counsel for all remaining parties shall appear for a pre-trial conference on Wednesday, July I O , 2013 at 11:00 a.m. prepared to discuss settlement --a- and select a trial date. Dated: June 2412013 i 1 F I L E iS JUN 27 2013 .JuN 2 4 2013 co J.S.C. -A& %tlLE@GER N W YORK E w CLERKS omQg-,.***,.. . , I - 9 J *+* . C c
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