Orlowski v Guido
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Orlowski v Guido 2013 NY Slip Op 32752(U) September 16, 2013 Sup Ct, Suffolk County Docket Number: 10-16423 Judge: Joseph C. Pastoressa Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] INDEX No. 10-1 423 CAL. No. 12-02 85MM SHORT FORM ORDER I r SUPREME COURT- STATE OF NEW YORi I.A.S. PART 34 - SUFFOLK COUNTY l i ! i PRESENT: Hon. I I JOSEPH C. PASTORESSA Justice of the Supreme Court MOTION DA~'E 5-2-13 8-7-13 ADJ. DATE Mot. Seq. # 0 1 - MD ----------------------------------------------------------------)( JOHN J. ORLOWSKI and HELEN ORLOWSKI, Plaintiffs, I DUFFY & DU Attorney for Pl 1370 RXR Pla Uniondale, Ne FY intiffs , West Tower, 13 1h Floor York 11556 - against MICHAEL GUIDO III, M.D., NEUROLOGY ASSOCIATES OF STONY BROOK, UNIVERSITY FACULTY PRACTICE CORPORATION, CANDICE G. PERKINS, M.D., HENRY HEESANG WOO, M.D., and WENDY C. GAZA, M.D., FUMUSO,KE ,LY,DEVERNA, SNYDER SWART & FA LL, LLP Attorney for D fondants 110 Marcus Bo levard, Suite 500 Hauppauge, Ne York 11788 Defendants. ----------------------------------------------------------------)( Upon the fo llowing papers numbered I to _!2_ read on this motion for summary judgment· Notice of Motion/ Order to Show Cause and supporting papers _l_:l,1; Notice of Cross Motion and supp ~rting papers _; Answering ffidavits and supporting papers 15-17; · · · ~it is, Replying Affidav its and supporting papers 18-19; Other _; (ttn'Chl I ORDERED that motion (003) by defendants, Michael Guido, III, M.D.~Neurology Associates of Stony Brook,. Uni versity Faculty Practice Corporation, Candice G. Perkins, M.D., He y Heesang Woo, M.D. and Wendy C. Gaza, M.D., pursuant to CPLR 3212 for summary judgment dismissi 1g the complaint asserted against them is denied. ln this medical malpractice action, the plaintiff. John J. Orlowski , seeks amages for personal inj uries a lleged to have been sustained due to the negligent departures from the accepte standards of care and treatment by the defendants. The plaintiff came under the care and treatment of the defen ants on or about February 4, 2009 through f-'ebruary 11 , 2009. It is alleged that the defendants failed to diag ose the signs of an impending stroke and fai led to timely perform diagnostic testing and a carotid endarterecto 1y, resulting in the plaintiff suffering a stro ke and causing loss of the full use of his right hand and ri ght leg; deformity of the ri ght hand; difficulty ambulating: neurological deficits, and difficulty with the activities of aily life , amo ng other things. Causes of action have been pleaded for negligence and lack of informed consen , as well as a derivative claim by plaintiff s spouse, Helen Orlowski , for loss of services. I I I I I '' [* 2] Orlowski v Guido Index No . I 0-16423 Page No. 2 The proponent of a summary judgment motion must make a prima faci showing of entitlement to judgment as a matter of law, tendering sufficient evid;:nce to eliminate any mat rial issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable ssue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [ 1979)). The movant has t e initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY d 851 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency oft e opposing papers (Winegrad v N.Y.U . Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer eviden e in admissible form ... and must ·'show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Z kerman v Cit of New York, 49 NY2d 557 [1980]). The opposing party must assemb:.e, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( "astro v Libert Bus Co ., 79 AD2d 1014 [2nd Dept 1981 ]). ln support of this motion, the defendants have submitted, inter alia, an torney' s affirmation; the affidavit of Robert April, M.D . which is not notarized; copies of the summons nd complaint, answers served by defendants Perkins, University Faculty Practice Corporation, and Neurology A sociates of Stony Brook, plaintiffs ' verified bill of particulars as to defendant Guido, Perkins, Gaza, Neu ology Associates of Stony Brook, University Faculty Practice Corporation, plaintiffs' amended suppleme tal bill of particulars as to defendants Neurology Associates of Stony Brook, University Faculty Practice orporation, Woo, Perkins, Gaza, Guido; transcripts of the examinations before trial of John Orlowski dated Apri 5, 2011, Helen Orlowski dated June 22, 2011 which are not in admissible form and are not accompanied by an affidavit of service purusant to CPLR 3116; unsigned and uncertified transcript of the examination before trial of Henry Heesang Woo dated December 22, 2011 which is considered as adopted a~: accurate by the moving efendant (see, Ashif v Won Ok Lee, 57 AD3d 700 [2nd Dept 2008]); and an uncertified medical record which i not in admissible form to be considered on a motion for summary judgment pursuant to CPLR 3212 and 45 8 (Friends of Animals v Associated Fur Mfrs., supra). Expert testimony is limited to facts in evidence. ·see, Allen v Uh, 82 AD3d 1025 [2nd Dept 2011]; Marzuillo v Isom. 277 AD2d 362 [2nd Dept 2000]; Strin ile v Rothman, 142 AD2d 637 [2"d Dept 1988]; O'Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2nd Dept 1984]; ornbrook v Peak Resorts Inc., 194 Misc2d 273 [Sup Ct, Tomkins County 2002]), and the uncertified records re not in evidence. The answers served by defendants Guido, Woo and Gaza have not been provided with them ving papers as required pursuant to CPLR 3212. The affidavit of Robert April, M.D. is considered as t e plaintiff has not objected to the use thereof~ despite its lack of notarization, and the affidavit is treated herei as having a technical defect in form (see, CPLR §§ 2001 , 2106; Sam v Town of Rotterdam, 248 AD2d 850; U cudera v Mahbubur, 299 AD2d 535 [2nd Dept 2002]). I The requisite elements of proof in a medical malpractice action are (1) deviation or departure from accepted practice, and (2) evidence that such departur was a proximate cause f injury or damage (Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852 [2nd Dept 1998], app denie 92 NY2d 818). To prove a prim a facie case of medical malpractice, a plaintiff must establish that defenda t's negligence was a substantial factor in producing the alleged injury (see, Derdiarian v Felix Contractin Cor ., 51 NY2d 308 [1980]; Prete v Rafla-Demetrious, 221 AD2d 674 [2"d Dept 1996]). Except as to matters withi the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the laintiffs injury (see. Fiore v Galang, 64 NY2d 999 [1985]; Lyons v McCauley, 252 AD2d 516, [2nd Dept 19 8] , app denied 92 NY2d 814; I Bloom v Citv of New York, 202 AD2d 465 [2nd Dept 1994]). 1;: I [* 3] Orlowski v Guido Index No. I 0-16423 Page Ne. 3 Robert ApriL M.D. avers that he is licensed to practice medicine in Ne York State and is board certified in neurology. He has, however, not set forth his education and trainin and the basis to qualify as an expert in this matter. Dr. April has set forth the various documents and medica records reviewed, although not identified to this court and included in support of the motion. Dr. April opined within a reasonable degree of medical certainty that the moving defendants, at all times in question, conform d with the accepted care and that there were no deviations from accepted standards of practice, or their agents or mployees. He further opined that there is nothing that the defendants did or failed to do which was a proxim te cause of the plaintiffs claimed injuries. Dr. April stated that Mr. Orlowski suffered a stroke in 2007, but does n t describe the stroke with any particularity and does not indicate whether or not the plaintiff suffered any rela ed residual disabilities. He continued that about three months after that stroke, the plaintiff was seen on a eriodic basis by Dr. Perkins at the Stony Brook University Medical Center Neuroclinic where followup regar ing speech arrest was conducted, as well as surveillance and testing to evaluate blood flow to the brain, and caro id flow. Dr. April does not set forth which tests were done and the results of such te~.ting, and simply stated t t the "medical records of the care that had been rendered prior to the admission in February 2009 do not refl ct a progression of atherosclerosis. Dr. Perkins last saw the plaintiff on January 8, 2009. Dr. Apri then sets forth in a conclusory statement that Dr. Perkins care was appropriate, and within the accepted standa ds of medical practice and was not the proximate cause of any injury claimed by the plaintiff. Dr. April does ot set forth the specific tests performed, the results of such testing, the standard of care, and how the care an treatment by Dr. Perkins comported with the standard of care. Dr. April then set forth that Dr. Guido's primary contact with the plaint ff was during a telephone conversation on January 29, 2009 wherein Dr. Guido advised the plaintiff tog to the Stony Brook Medical Center for further workup of his condition. However, Dr. April does not indic e what complaints were presented to Dr. Guido, but continued to opine that the plaintiff had been prope ly worked up, a timely and appropriate diagnosis had been made, appropriate and proper consults were cal ed, and a medically appropriate course of a surgical procedure was scheduled and ultimately performed by Dr. oo on February 9, 2008. 1 Dr. April , did not set forth the standard of care, and the treatment provided by Dr. uido. Rather, Dr. April set forth in a conclusory and unsupported statement that the care provided by Dr. Guido was appropriate and within the accepted standards of medical practice, and was not the proximate cause of the lain tiffs injuries. Dr. April stated that Dr. Woo first saw Mr. Orlowski on neurosurgical nsultation on February 6, 2008 after a radiogological study revealed high grade stenosis in the left internal car tid artery. It was agreed that the plaintiff would undergo a left carotid endarterectomy. It is Dr. April's opinion hat this was the proper course of action and the appropriate surgical procedure given the plaintiffs condition an medical history. Following the procedure on February 9, 2008, the plaintiff was monitored, observed, and disc arged home on February 10, 2008 about 31 hours following the procedure, without neurologic or medical s ptoms, and after a normal CAT scan. Dr. April does not address any of the plaintiffs complaints or presentati n postoperatively, such as aphasia, right arm weakness, slurred speech, or labile blood pressure for which he plaintiff was being monitored. Dr. April opined that Dr. Woo provided care and treatment that wa · within the accepted standards of medical practice. 1 The affidavit sets forth the year as 2008 . [* 4] Orlowski v Guido Index No. I 0-16423 Page Ne. 4 Dr. April continued that on February 11, 2008, Mr. Orlowski suffered a hemorrhagic stroke secondary to re-perfusion and was taken back to Stony Brook Medical Center. Dr. April stat d that a re-perfusion hemorrhage and resultant hemorrhagic stroke is unpreventable, and even if the laintiff were still in the hospital, it would not have been prevented and earlier surgical intervention would not h e prevented it either. Based upon the foregoing, even considering the defendants' evidentiary proof which was not in admissible form for a motion for summary judgment, it is determined that the efendants' have failed to establish primafacie entitlement to summary judgment dismissing the complai t. "The affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary j dgment where the affidavit is detailed, specific and factual in nature and does not a~:sert in simple conclusory form that the physician acted within the accepted standards of medical care" (Toorr.,e v Adirondack Sur ica Assoc., 280 AD2d 754 [J'd Dept 2001][citations omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY d 851 [1985]; Machac v Anderson, 261 AD2d 811 [3'd Dept 1999]). It is determined that the affidavit y Dr. April was cursory, conclusory and unsupported with the standards of care, and how such standard were complied with by the various defendants. It is further determined that the plaintiff has submitted an xpert affirmation which raises a triable issue of fact which precludes summary judgment from being granted to he defendants. Plaintiffs expert has affirmed that he/she is a physician licensed to pra ice medicine in New York and California, and is board certified in surgery. He set forth his education and trai ing to qualify as an expert, including having performed countless endarterectomies, and his knowledge of he standards of care in the performance of endarterectomies and post-operative care and treatment. He st ed that the plaintiff suffered a left artery dissection in 2007 after compression of the carotid artery, causing ri ht arm weakness, and sensory issues on the right side which gradually improved. A transcranial doppler of tl anterior and posterior circulations in February 2008 show no focal flow disturbances. Following that study, he had episodes of speech arrest lasting less than a minute, with no accompanying loss of consciousness. n electroencephalography (EEG) performed on December 11, 2008 revealed a normal waking EEG. The e was nothing that the plaintiff could not do and he continued to work, golf and fish. The plaintiff's expert set forth the materials and records which he reviewed and opined within a reasonable degree of medical certainty hat Dr. Perkins, Dr. Guido, Dr. Woo and Dr. Gaza departed from the accepted standards of care and treatment uring the plaintiff's February 4, 2009 admission to Stony Brook University Hospital, proximately causing the p aintiff's claimed injuries. Plaintiffs expert set forth that an endarterectomy is the surgical remov< 1 of plaque from an at1ery which has become narrowed or blocked, and its purpose is to treat blockages in the ca otid arteries. An incision is made into the affected artery and the plaque is removed that is contained in the artery's inner lining. The vessel is clamped around the area of occlusion, and after the clamps are removed, and following removal of the thrombus , a mandatory back-bleed of the vessel is performed wherein the bloo1 is flowed from the brain downwards to confirm that all plaque has been removed. A graft is placed ove the incision so as not to further decrease the width of the vessel, allowing blood to freely pass. The plaintiffs expert continued that on February 4, 2009, the plaintiff' as admitted to Stony Brook Hospital by Candice Perkins, M.D. to be worked up for possible seizure, and w s seen by Michael Guido, III, M.D. a neurologist. An MRI of the brain and MRis of the neck and head on Ft bruary 4, 2009 showed an old watershed infarct in the left fronto-parietal lobe with no evidence of acute infar tion, and a near complete occlusion at the proximal left internal carotid artery (ICA). A CT angiogram o February 6, 2009 showed 9599% stenos is of the left proximal internal carotid artery, for which a left carotic endarterectomy with a hemashicld graft was performed by Dr. Woo. Following the procedure at 11 :0 a.m., Mr. Orlowski suffered instability in the form of unstable blood pressure, rigt.t-sided deficits, and apha ia (difficulty speaking), both [* 5] Orlowski v Guido Index No. l 0-16423 Page Nu. 5 signs of a neurological issue indicative of vascular instability and/or impendini: period. The standard of care, stated the plaintiff's expert, required that any and symptoms following a carotid endarterectomy be fully worked up as ifthe sym required that the patient's post-operative blood pressure be stable for a signific< discharge. stroke in the post-operative all neurological signs and toms were new, and further nt period of time prior to The plaintiff's expert stated that the plaintiff had complaints ofright-sic d weakness at 12: 11 a.m. on February 10, 2009, less than thirteen hours after the surgery ended. At 4:30 a.n ., his right arm was slightly weaker than the left. At 9: 10 a.m., an endovascular surgery fellow, Wendy Ga; a, M.D., and Dr. Woo saw the plaintiff at which time it was noted that he had decrea:;ed temperature sensation in his right face, trace weakness [n his right hand, and mild decrease in sensation to temperature of the right upp r extremity. Between 11 :45 a.m. and 12:15 p.m., the plaintiff was evaluated by a physical therapist who not d that the plaintiff was weak with decreased strength in his right upper and lower extremties as compared to he left, and that he had decreased coordination in the right upper and lower extremities as compared to he baseline left. This was also noted by the SICU nurse at 12:15 p.m. The aphasia began at 9:10 a.m. on then orning of February 10, 2009 evidenced by difficulties in word finding and expression, as noted by the neurol gy nurse and Dr. Perkins. A repeat CT scan of the brain was obtained at 10:22 a.m. on the morning of disch. rge. A carotid duplex showed no hemodynamic stenosis. The plaintiff was to be disi:::harged home with speec therapy. At 3:43 p.m., slurring of the plaintiff's speech was noted. Despite the same, the plaintiff was dischaq d home on February 10, 2009 at 6:00 p.m. On February 11, 2009, the plaintiff returned to Stony Brook University Iospital by ambulance with complaints of headache and dizziness, numbness and weakness of the right arm and he was unable to walk. By the following day, he was aphasic and hemiplegic. He developed deep vein thr1 mbosis and an IVC filter was placed. On February 20, 2009, the plaintiff was discharged to St. Charles Reha ilitation. He now wears a brace on his right leg and walks with a cane. He has foot drop and falls due to lack ot balance resulting from weakness in his right leg. He has severe difficulty finding words and in speech. His cognitive thought processes are slowed and impaired. He has urinary incontinence, impaired emo ional status, and suffers extreme depression and anxiety. The plaintiff's expert opined that Dr. Woo deviated and/or departed fror the accepted standards of care by his failure to back-bleed the plaintiff's brain following the endarterectomy a1 d prior to the surgical closure, and his failure to remove the entire area of occlusion from the origin of the exte nal carotid artery. Plaintiff's expert continued that the defendants failed to address the post-operative neurolo ical deficits suffered by the plaintiff, and failed to investigate and/or control the plaintiff's labile blood pres: ure, and prematurely discharged him home. The plaintiff's expert opined that had the plaintiff's brain been back bled during the endarterectomy, leftover debris which was located above or trapped under Dr. Woo's clamp wot d have been discovered and immediately removed. Instead, the debris remained in the internal and external rteries causing a series of TIAs while the plaintiff was still a patient at Stony Brook Hospital. The debris ultim< ely traveled to the brain creating an ischemic stroke in the region of the callosa marginal branch which c nverted to a hemorrhagic stroke. The plaintiff's injuries would have been spared with the performance of· back-bleed opined plaintiff's expert. The plaintiffs expert further opined that had the plaintiffs post-operativ . complaints been properly and timely investigated, and had he been admitted, the impending and/or evolving is hemic stroke which converted to a hemorrhagic stroke in the brain would have been timely recognized and trea ed before it progressed into a severe and detrimental brain hemorrhage. The plaintiff's expert stated that the p st-operative complaints of [* 6] Orlowski v Guido Index No. I 0-16423 Page Ne. 6 both right sided deficits and expressive aphasia are evidence that the left caroti artery contained a remnant of plaque after the procedure, causing an occlusion and neurological symptoms d e to diminished blood flow to the areas of the brain controlling the affected functions. Dr. Perkins, Dr. Gaza, and Dr. Woo deviated from the accepted standards of medical care in the failure to address the plaintiffs post- perative neurological complaints, including right-sided deficits and aphasia. A CT angiogram of the eek should have been performed to confirm a remaining embolic or ongoing occlusion, so that it coul be removed surgically. Plaintiff's labile blood pressure post-endarterectomy was not addressed and a orkup should have been done to discover the cause of this vascular abnormality, which is a symptom of instabil ty post-operatively. All the defendants further deviated from the standards of care in discharging the plaint ff who should have been admitted to remain at the hospital until the cause for the instability, both neurol gically and vascularly, had been determined and treated. Based upon the foregoing, the plaintiff's expert has rai ed multiple factual issues concerning the alleged departures from the standard of care by the named defe ants, and the proximate cause of the injuries sustained by the plaintiff. To rebut a prima facie showing of entitlement to an order granting sum ary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitf g an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an o inion that the defendant's acts or omissions were a competent-producing cause of the injuries of the plaintiff ( ee, Lifshitz v Beth Israel Med. Ctr-Kings Highway Div., 7 AD3d 759 [2nd Dept 2004]; Domaradzki v Glen Co e OB/GYN Assocs., 242 AD2d 282, 660 NYS2d 739 [2nd Dept 1997]). "Summary judgment is not appropriate n a medical malpractice action where the parties adduce conflicting medical expert opinions as such credibility issues can only be resolved by a jury" (Bengston v Wang, 41 AD3d 625 [2nd Dept 2007]; see also, Shields v Bak id , 11 AD3d 671 [2nd Dept 2004]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623 [2nd Dept 2003]; Halki s v Otola n olo -Facial Plastic Surgery Assoc., 282 AD2d 650 [2nd Dept 2001]). In the instant action, h d the defendant established prima facie entitlement to summary judgment, plaintiff's expert has raised man factual issues which preclude summary judgment, including the expert's respective opinions relating to re-per usion and the failure to bleedback the plaintiff's brain at the completion of surgery as the cause of plaintiff's njuries. Accordingly, motion (001) by the defendants for summary judgment dis issing the complaint isdenied. Dated: September 16, 2013 HON -·FINAL DISPOSITION _ L NON-FINAL DISPOSITION C. PASTORESSA, J.S.C. I
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