Wixted v Schoenwald
Annotate this CaseDecided on June 28, 2013
Supreme Court, Suffolk County
Stacie-Ann Wixted and Thomas Wixted, Plaintiffs,
against
Robert C. Schoenwald, M.D., JOSE TALAVERA, M.D., WILLIAM ROBBINS, M.D., LONG ISLAND FAMILY MEDICAL GROUP, P.C., IRENE A. SCHULMAN, M.D., and LONG ISLAND MEDICAL DIAGNOSTIC IMAGING, P.C., Defendants.
00-26292
G. RONALD HOFFMAN, ESQ.
Attorney for Plaintiffs
250 West Main Street
Bay Shore, New York 11706
ANTHONY P. VARDARO, P.C. Attorney for Defendant Schoenwald
732 Smithtown Bypass, Suite 203
Smithtown, New York 11787
LEWIS, JOHS, AVALLONE & AVILES, LLP
Attorney for Defendants Talavera, Robbins &
Long Island Family Medical Group
425 Broadhollow Road, Suite 325
Melville, New York 11747
IVONE, DEVINE & JENSEN, LLP
Attorney for Defendants Schulman &
Medical Diagnostic
2001 Marcus Avenue, Suite N100
Lake Success, New York 11042
Jerry Garguilo, J.
ORDERED that motions (004), (005), and (006), and cross motions (007), (008), and (009) are consolidated for the purpose of determination; and it is further
ORDERED that motion (004) by the defendant, Robert C. Schoenwald, M.D., pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against him is granted; and it is further
ORDERED that motion (005) by the defendants, Jose Talavera, M.D., William Robbins, M.D., and Long Island Family Medical Group, P.C., pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against it is granted; and it is further
ORDERED that motion (006) by the defendants, Irene A. Schulman, M.D. and Island Medical Diagnostic Imaging, P.C., pursuant to CPLR 3212 for summary judgment dismissing the complaint as asserted against him is granted; and it is further
ORDERED that cross motion (007) by the plaintiffs pursuant to CPLR 3212 to striking the answer served by Robert C. Schoenwald, M.D. and grant plaintiffs summary judgment on the issue of liability is denied; and it is further
ORDERED that cross motion (008) by the plaintiffs pursuant to CPLR 3212 to strike the answers served by Jose Talavera, M.D., William Robbins, M.D. and Long Island Family Medical Group, P.C. and grant plaintiffs summary judgment on the issue of liability is denied; and it is further
ORDERED that cross motion (009) by the plaintiffs pursuant to CPLR 3212 to strike the answer served by Irene A. Schulman, M.D. and Long Island Medical Diagnostic Imaging, P.C. [*2]and grant plaintiffs summary judgment on the issue of liability is denied.
In this medical malpractice action, the plaintiff, Stacie-Ann Wixted, alleges that on June 17, 1997, defendant Robert C. Schoenwald, M.D. surgically inserted an Infuse-a-Port radiopaque tube for the purpose of administering chemotherapy. On or about May 22, 1998, while defendant Schoenwald was surgically removing said radiopaque tube, he cut the tube, negligently causing a portion of the tube to remain in her body, then negligently failed to order appropriate testing to detect this foreign object, resulting in irritation and infection. It is further alleged that Schoenwald failed to refer the plaintiff to specialists for treatment. The plaintiff alleges that defendant Schoenwald departed from good and accepted standards of care and treatment in administering to her. When the plaintiff came under the care of defendants Jose Talavera, M.D. and William Robbins, M.D., at defendant Long Island Family Medical Group, P.C., on or about December 30, 1998 and October 15, 1999, it is alleged that they failed to recognize the foreign object which appeared on the plaintiff's chest x-ray. On or about October 18, 1999, Long Island Medical Diagnostic Imaging, P.C. notified defendants Talavera and Robbins that the plaintiff had a foreign object in her, however, the defendants failed to advise the plaintiff of the presence of that foreign object. On or about March 14, 2000, the plaintiff again came under the care and treatment of Long Island Family Medical Group, P.C., and a chest x-ray was taken. On March 16, 2000, the plaintiff was advised of the foreign object in her chest. The plaintiff alleges that defendants Talavera, Robbins, and Long Island Family Medical Group, and defendants Irene A. Schulman, M.D. and Long Island Medical Diagnostic Imaging, P.C., were negligent and departed from good and accepted standards of medical care and practice during their treatment of her when they failed to notify her of the presence of the foreign object; failed to diagnose and timely and appropriately treat her relative to this foreign object; and failed to refer her to a specialist to treat this condition. The plaintiff alleges she was caused to suffer pain and injury as a result of the defendants' negligence and departures from good and accepted standards of care and treatment.
The defendants seek summary judgment dismissing the complaint on the bases that they were not negligent and did not depart from good and accepted medical standards during their care and treatment of the plaintiff, and did not proximately cause any injury claimed by her. The plaintiffs seek summary judgment on the issue of liability in their favor and a hearing on damages.
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 to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1979]; Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N.Y.U. Medical Center, supra). Once such [*3]proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, 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 (Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).
The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852, 678 NYS2d 503 [2d Dept 1998], app denied 92 NY2d 818, 685 NYS2d 420 [1999]). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see Derdiarian v Felix Contracting Corp., 51 NY2d 308, 434 NYS2d 166 [1980]; Prete v Rafla-Demetrious, 224 AD2d 674, 638 NYS2d 700 [2d Dept 1996]). Except as to matters within 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 plaintiff's injury (see Fiore v Galang, 64 NY2d 999, 489 NYS2d 47 [1985]; Lyons v McCauley, 252 AD2d 516, 675 NYS2d 375 [2d Dept], app denied 92 NY2d 814, 681 NYS2d 475 [1998]; Bloom v City of New York, 202 AD2d 465, 609 NYS2d 45 [2d Dept 1994]).
To rebut a prima facie showing of entitlement to an order granting summary judgment by the defendant, the plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant's acts or omissions were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth Israel Med. Ctr-Kings Highway Div., 7 AD3d 759, 776 NYS2d 907 [2d Dept 2004]; Domaradzki v Glen Cove OB/GYN Assocs., 242 AD2d 282, 660 NYS2d 739 [2d Dept 1997]).
In motions (007), (008), and (009), the plaintiffs seek summary judgment against the defendants on the issue of liability. The Note of Issue in this action was filed on February 2, 2001. The plaintiffs filed these cross motions on October 17, 2012, well beyond the statutory 120 days which was June 20, 2012. Although these motions were untimely when made, they may be considered pursuant to Homeland Insurance Company of New York v National Grange Mutual Insurance Company, 84 AD3d 737, 922 NYS2d 522 [2d Dept 2011] as the issues are identical concerning whether the defendants departed from the accepted standards of care and treatment and whether they proximately caused the injuries claimed by the plaintiffs. The plaintiffs' expert affirmations have been submitted under separate cover in unredacted form.[FN1] However, in a motion for summary judgment, the movant's expert's education, training, and experience must be set forth to qualify as an expert. The plaintiffs' experts have not done so. [*4]Additionally, the plaintiffs' supporting exhibits are not certified or authenticated, are incomplete, and are not in admissible form. Even in considering such expert affirmations and evidentiary proof submitted in plaintiff's moving papers, it is determined that the plaintiffs have failed to raise a factual issue to preclude summary judgment from being granted, nor have they established summary judgment in their favor.
It has not been established that the alleged departures proximately caused the plaintiff's alleged injuries. In reviewing the totality of the evidentiary submissions, it is determined that the Infuse-A-Port fractured and migrated prior to its removal by defendant Dr. Schoenwald on May 28, 1998, as demonstrated by the posterior-anterior and lateral chest x-rays dated April 28, 1998, and corroborated by the identical finding on a CT scan dated May 8, 1998 which demonstrated that the catheter had already fractured and traveled from its point of insertion. Thus, there is no evidentiary proof that Dr. Schoenwald departed from the standard of care and fractured the Infuse-A-Port during its removal. The subsequent testing demonstrates that the catheter is still in place from whence it traveled, in the plaintiff's left upper lobe and pulmonary artery. While the plaintiffs allege various damages, the plaintiffs have not demonstrate that any of the defendants proximately caused the catheter to fracture. Although the plaintiffs allege the defendants failed to timely diagnose and treat the wayward section of the catheter, they have failed to distinguish or identify the damages resulting therefrom from the damages related to the initial fracture, migration, and position and location of the catheter. Thus, the plaintiffs have not raised a factual issue related to any alleged departure and the proximate cause of the plaintiff's damages, precluding summary judgment to the plaintiffs and establishing the defendants' entitlement to summary judgment.
Accordingly, motions (007), (008), and (009) are denied and are rendered academic based upon the disposition of motions (004), (005), and (006), dismissing the complaint.
MOTION (004)
Robert Schoenwald, M.D. testified that he is licensed to practice medicine in New York and is board certified in general surgery and cardiothoracic surgery. He first saw the plaintiff on May 27, 1997, and then on June 17, 1997, when he placed an Infuse-A-Port catheter on the plaintiff's right side, percutaneously under fluoroscopic control, into the subclavian vein in which a pocket was made in the delta-pectoral groove area, just above the breast, to place a port for easy access by the oncologist for chemotherapy. The Infuse-A-Port catheter consists of the catheter which hooks up to the Infuse-A-Port. The port and the catheter were tacked to the pectoralis fascia muscle. A special needle is used with the port, which can be accessed multiple times. The catheter tracts from the port under the soft tissues under the clavicle in the tunnel area into the pocket. After the procedure, an x-ray was taken and the catheter was in good position. There was no pneumothorax. Dr. Schoenwald stated that the plaintiff's catheter remained in place for approximately ten and a half months prior to removal.
Dr. Schoenwald testified that on May 1, 1998, Dr. Gold, the plaintiff's oncologist, found [*5]it was difficult to aspirate blood from the plaintiff's port, so she was sent to his office for port evaluation. She was experiencing substernal burning, which Dr. Schoenwald stated could be due to radiation, or the outflow of chemotherapy agents out of the catheter, possibly due to the catheter being dislodged, thus permitting leakage of the chemotherapy agents. The plaintiff was also experiencing swelling in the immediate infraclavicular region along the catheter tract site where the incision had been made to insert the Infuse-A-Port. Dr. Schoenwald testified that in light of chemotherapy having been completed, Dr. Gold asked him to remove the Infuse-A-Port, which he did on May 28, 1998.
Dr. Schoenwald continued on May 28, 1998, surgery under local anesthesia was performed to remove the Infuse-A-Port, and to excise a mass on the plaintiff's neck. He described the procedure and when the port was located, the port was held in place and the prolene sutures were cut with a scissor. He then lifted the port and pulled it out. About ten seconds passed from the time he started to pull or lift the port out vertically. He did not use force when he pulled on it. He stated that he looked at the port briefly after he removed it to make sure he had the port and that the catheter was attached to the port before he gave it to the nurse to send to pathology. He did not measure it and did not inspect it. He felt it was the appropriate length for someone of the plaintiff's size. He could have used image guiding during the removal of the Infuse-A-Port, but stated that custom and practice is to remove it without image assistance unless there is a problem. Dr. Schoenwald stated that although he was aware of a problem with the port prior to his removal, wherein it was thought that it had a clot, he did not consider that there was a breakage. He continued that the pathology report revealed that the catheter was ten inches in length, and the port catheter head was 3.8 cm. He continued that the pathology report indicated that the portacatheter had a short segment of tubing. He stated that he thought he got everything out, however, he later learned that the entire catheter was not removed. He believed it broke some time prior to its removal. A post-removal x-ray or fluoroscopy search would have been ordered if he had difficulty removing the catheter. He had no difficulty removing it and assumed it was okay. He did not believe there was a catastrophic consequence of having this catheter fragment remain.
Dr. Schoenwald continued that on March 17, 2000, the plaintiff presented to his office and was seen by Dr. Siegman. She had been sent by radiology to rule out a foreign body in her chest. The x-ray films had been reviewed by Dr. Smith from Southside Hospital as showing a "questionable intrathoracic catheter ? pulmonary artery." Dr. Siegman examined her and noted that she had a history of respiratory infection and mild hemoptysis (coughing up blood) during that two year period after removal of the Infuse-A-Port, then called him to let him know. As he was away when Dr. Siegman informed him of the situation, upon his return, he spoke to the plaintiff by phone on May 21, 2000. He testified that he never advised her that the catheter fragment should be left in due to scar tissue and that it could cause harm to remove it. He stated that he told her that an interventional radiologist should look at it to determine if it should be removed. He also called the radiologist, Dr. Klinger, to make an appointment for her to be seen.
Dr. Schoenwald testified that he did not receive any reports dated October 19, 1999 or [*6]January 1, 1999 from Long Island Diagnostic Imaging. Although there was an x-ray report in his file dated October 18, 1999, he testified that he did not know it was there. He continued that he was never advised, either orally or in writing, by Dr. Irene Schulman, M.D., Dr. Bannon, Dr. Robbins, Dr. Talavera, or Long Island Family Medical Group that the plaintiff had a linear opaque tube in her chest cavity, or a foreign object, or left upper lobe pulmonary artery. He stated that the plaintiff cancelled her March 21, 2000 appointment with him due to flu-like symptoms, and her March 24, 2000 appointment with Dr. Klinger, as she was getting a second opinion from another radiology group.
Dr. Schoenwald testified that the position of the catheter in the March 16, 2000 x-ray report was not the same location that he had placed it, and that he had no idea how it got there. He then stated that this 8 cm (3.2inches) long radiopaque tube traveled through her heart and went into the right atrium to the tricuspid valve, through the pulmonary valve, into the main pulmonary artery, then to the left pulmonary artery, where it was located on the x-ray. He stated that it was possible for something to tumble through the heart without causing any problems, or it can cause an arrhythmia. He stated that it is possible that it can cause a bacterial endocarditis; a tamponade which would be unlikely; possible pulmonary infarct, but unlikely cardiac infarct; a thrombosis in the pulmonary vasculature; an unlikely perforation; possible lethal potential; or an embolism, which could possibly be fatal or debilitating. Dr. Schoenwald testified that on April 18, 2000, the interventional radiologist at St. Francis attempted no less than three times to snare and loop back the catheter, and was unsuccessful. When asked if the object had lethal potential, his response was that it is well walled off and became part of the vessel.
Dr. Scott S. Coyne, Dr. Schoenwald's expert, affirms that he is licensed to practice medicine in New York State and is board certified in diagnostic radiology. He set forth the records and materials which he reviewed and opined within a reasonable degree of medical certainty that the treatment rendered by defendant Schoenwald to Stacy-Ann Wixted was at all times within good and accepted standards of medical practice, and that the injuries alleged by the plaintiff were not caused or contributed to by any acts or omissions of defendant Schoenwald.
Dr. Coyne stated that the plaintiff was found to have extensive coalescent mediastinal lymphadenopathy in May 1997, and was subsequently diagnosed with Stage II Hodgkins lymphoma via bronchoscopy, anterior thoracotomy and biopsy performed at Southside Hospital on June 3, 1997. On June 17, 1997, Dr. Schoenwald inserted an infusaport to provide for the administration of chemotherapy, as ordered by her oncologists to treat the lymphoma. During her care and treatment, the plaintiff was subjected to frequent radiological evaluation via plain x-rays and CT scans to follow her response to chemotherapy. Dr. Coyne opined that the 7 cm. (2.75 inch) fragment of the infusaport which the plaintiff claims was negligently cut by Schoenwald on May 22, 1998 during its removal, had previously fractured and traveled into the plaintiff's left upper lobe pulmonary artery, as noted on the posterior-anterior and lateral chest x-rays dated April 28, 1998, and corroborated by the identical finding on a CT scan dated May 8, 1998. Thus opined Dr. Coyne, the catheter fragment had broken off and embolized at least one month prior in time to the act of catheter removal by Schoenwald. [*7]
Dr. Coyne continued that following the removal of the infusaport by Dr. Schoenwald, the plaintiff underwent multiple follow-up radiology examinations from April 28, 1998 through September 2, 2008, at various radiological facilities, and that the catheter fragment remained in a fixed and stable position in the pulmonary artery of the left upper lobe, and has not migrated to a different location. Dr. Coyne stated that the radiology report by Irene Schulman, M.D., dated October 18, 1999, concerning the x-ray examination performed at Long Island Family Medical Group, interpreted by Long Island Medical Diagnostic Imaging, P.C., indicates "Linear radiopaque tube projected over the left upper lobe/left mediastinum. Clinical correlation is advised."
The reports referred to by Dr. Coyne, the posterior-anterior and lateral chest x-rays dated April 28, 1998, and CT scan dated May 8, 1998, which he stated revealed that the catheter fragment had broken off and embolized at least one month prior in time to the act of catheter removal by Schoenwald on May 22, 1998, have not been provided to this court with Dr. Schoenwald's application. Expert testimony is limited to facts in evidence (see also Allen v Uh, 82 AD3d 1025, 919 NYS2d 179 [2d Dept 2011]; Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]; O'Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]; Hornbrook v Peak Resorts, Inc. 194 Misc 2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]). It is noted, however, that the chest PA and lateral report dated April 28, 1998, submitted with motion (005), interpreted by Michael Laucella, M.D., set forth that there is a catheter projected over the soft tissue of the left anterior chest wall which does not definitively have an intrathoracic location. Clinical correlation regarding this finding was recommended. The chest x-ray report dated May 20, 1998, submitted with motion (004) set forth that "[c]ompared to the previous examination of April 28, 1998, again demonstrates catheter projecting over the soft tissues of the left anterior chest wall unchanged in position from prior exam." Thus, Dr. Schoenwald has established that the catheter had fractured by at least April 28, 1998, prior to the date that he removed the Infuse-A-Port, May 22, 1998.
Dr. Coyne stated that the plaintiff required no antibiotic or anticoagulant medicine as acute or prophylatic treatment of the retained fragment which has not been documented as a source of emboli or infection, or any other medical complication. Thus, opined Dr. Coyne, Dr. Schoenwald did not depart from good and accepted medical practice, and that none of the plaintiff's alleged injuries were in any way caused or contributed to by any act or omissions attributable to Dr. Schoenwald. Based upon the foregoing, it is determined that Dr. Schoenwald has demonstrated prima facie that he did not cause the fracture of the catheter which had already fractured by at least April 28, 1998, well prior to his removal of the Infuse-A-Port on May 28, 1998, and thus he did not proximately cause any of the damages claimed by the plaintiff.
Defendant Schoenwald has submitted a further affirmation in support of his application, and in opposition to plaintiff's cross motion, and has provided the expert affirmation of Alfred T. Culliford, III, M.D., who affirms that he is licensed to practice medicine in New York and is board certified in surgery, thoracic and cardiac surgery. He set forth the records and materials [*8]which he reviewed, including chest x-rays and CT scans performed on the plaintiff before and following insertion and removal of the infuse-a port at issue. Dr. Culliford opines within a reasonable degree of medical certainty that the care and treatment rendered to Stacy Ann Wixted by Robert Schoenwald, M.D. was at all times within good and accepted medical practice, and that the injuries sustained by the plaintiff were in no way caused or contributed to by any acts or omissions asserted against Dr. Schoenwald.
Dr. Culliford set forth the plaintiff's diagnosis and course of treatment for Stage II Hodgkins lymphoma on June 3, 1997, including insertion of an infuse-a-port by Dr. Schoenwald at Southside Hospital to permit administration of the chemotherapeutic agents. Chemotherapy was administered via the infuse-a-port to successfully eradicate the disease. She was subjected to frequent radiologic evaluation to follow her response to this treatment. Following completion of the chemotherapy regime, on May 22, 1998 the infuse-a-part was then removed in an uneventful procedure by Dr. Schoenwald. Dr. Culliford opined that the plaintiff was not at an increased risk for catheter fragmentation based upon repetitive occupations movements from the activities and occupations he enumerated. He stated that spontaneous fractures of implantable medical catheters is an exceedingly rare and unpredictable occurrence with no antecedent signs, symptoms, or complaints to alert a medical provider, nor any ability to radiologically detect when or if a particular catheter will fracture.
Dr. Culliford continued that the catheter had in fact previously fractured and embolized (traveled) to the patient's left upper lobe pulmonary artery at least one month prior to the removal surgery by Dr. Schoenwald, as evidenced by the presence of the catheter fragment in the plaintiff's left upper pulmonary artery on posterior-anterior and lateral chest x-rays dated April 28, 1998, and corroborated by the identical finding on a CT scan dated May 8, 1998 and a plain chest x-ray dated May 20, 1998. He stated that the catheter fragment is fully endothelialized, in a completely fixed position, and has been sterilely incorporated into the wall of the plaintiff's pulmonary artery, has not migrated nor can it move from its current fixed location to a different location within the plaintiff's body. She has required no antibiotic or anticoagulant medications at any time for acute or prophylactic treatment for the retained catheter fragment, which has not been a documented source of thrombus formation, emboli, infection, or other medical complication, and cannot be a source for cardiac arrhythmia. In the absence of any untoward event during the removal process, it was not the standard of care in 1998 to obtain a post-removal x-ray on May 22, 1998, and the failure to obtain the same did not cause or contribute in any way to any injury alleged by the plaintiff. Even if the catheter fragment were identified on May 22, 1998, it had already been present in the plaintiff's pulmonary artery outflow tract for at least one month. It was unreachable by any technology then in existence at Southside Hospital. Thus, concludes Dr. Culliford, there was no act or omission by Dr. Schoenwald which caused or contributed to this occurrence, as demonstrated by the irrefutable radiologic evidence as set forth.
Based upon the foregoing, Dr. Schoenwald has established prima facie entitlement to summary judgment dismissing the complaint as asserted against him on both the issues of [*9]liability and proximate cause.
The plaintiffs' expert, licensed to practice medicine in New York State, and board certified in diagnostic radiology, opined that Dr. Schoenwald failed to measure the length of the infuseaport upon insertion on June 17, 1997 and after its removal on May 22, 1998; failed to inspect the infuseaport; severed and/or separated the infuseaport catheter leaving a portion remaining in the plaintiff as a foreign body; failed to order and evaluate a radiographic study which would have indicated the severed/separated catheter on May 22, 1998; failed to review and act upon the pre-operative radiograph of May 22, 1998; failed to notify the plaintiff that there was a severed/separated infuseaport in her body on May 22, 1998; failed to evaluate the plaintiff and inspect the infuseaport on August 15, 1997, September 12, 1997, October 7, 1997, December 10, 1997, April 3, 1998, and May 1, 1998, and failed to order radiographic studies, angiogram, CT scan or ultrasound to investigate documented problems with the infuseaport; failed to evaluate the plaintiff and inspect or test the infuseaport on May 1, 1998, or order radiographs, CT scan or ultrasound to investigate the malfunctioning infuseaport; caused the severance/separation of the infuseaport during the surgery of May 22, 1998 by rough handling and improper securing of the catheter on June 17, 1997; and failed to investigate the documented complaints and findings of Dr. Gold on May 14, 1998.
The plaintiffs' expert does not address the x-ray reports which indicate that the catheter had previously fractured and traveled into the plaintiff's left upper lobe pulmonary artery, as noted on the posterior-anterior and lateral chest x-rays dated April 28, 1998, and corroborated by the identical finding on a CT scan dated May 8, 1998. The plaintiffs' expert merely stated conclusively that Dr. Schoenwald severed the catheter when he removed it, and that the catheter has changed its position, is not fixed and stable, and has caused heart damage; enlarged heart, valvular disease, pulmonary disease, PVC's, arrhythmia, hypertension, tricuspid insufficiency, sclerosed aortic valve, aortic insufficiency, mitral insufficiency, cardiac angina requiring nitroglycerin, palpitations, abnormal ejection fraction, abnormal pulmonary function, nidus of infection and hemoptysis, and is more likely to develop embolic, thrombosis, arrhythmia or perforation of the pulmonary artery, erosion injury to the vessel wall with aneurysm formation or rupture causing sudden death, and the sequella of infection.
While the plaintiffs' expert stated in a conclusory and unsupported manner that the catheter is migrating and moving, the posterior-anterior and lateral chest x-rays dated April 28, 1998, corroborated by the identical finding on a CT scan dated May 8, 1998, demonstrated that the catheter was in the plaintiff's left upper lobe pulmonary artery, he then continued that the Transesophageal Echocardiogram Examination conducted by Dr. Schneider of Long Island Cardiovascular Medical Associates, P.C., on June 21, 2011, revealed that the retained catheter was transversing the pulmonic valve and extends into the left pulmonary artery, thus demonstrating the catheter location thirteen years later, without indicating whether the catheter moved, if at all, from its 1998 location. Additionally, while opining that the catheter demonstrated some degree of mobility, the plaintiff's expert does not describe whether it is totally mobile or whether a portion of the catheter exhibits mobility. There is no comment by the expert [*10]concerning where the catheter could possibly move again, or whether it has reached an impasse and is endothelialized in a fixed position.
The affidavit of Dr. Abraham Schneider has also been submitted by the plaintiffs and indicates that there is evidence of a retained piece of catheter that traverses the pulmonic valve and extends into the left main pulmonary artery. He set forth findings demonstrated during his examination and testing, but he, as a cardiologist, offered no opinion that the plaintiff's condition is proximately related to the retained catheter. The affidavit of Frank T. Pollaro, M.D., also a cardiologist, does not offer an opinion with regard to any findings and the retained catheter fragment.
Based upon the foregoing, it is determined that the plaintiff has failed to raise a triable issue of fact to preclude summary judgment from being granted to defendant Schoenwald.
Accordingly, motion (004) is granted, motion (009) is rendered academic based upon the disposition of motion (004), and the complaint asserted against Dr. Schoenwald is dismissed.
MOTIONS (005) and (008)
In support of motion (005), Jose Talavera, M.D., William Robbins, M.D., and Long Island Family Medical Group, P.C., have submitted the affirmation of their expert, Melvin Holden, M.D. who affirms that he is a physician licensed to practice medicine in New York and board certified in both internal medicine and pulmonary medicine. He set forth his work experience and the records and materials which he reviewed. He opined within a reasonable degree of medical certainty that there is no act or omission by these defendants which proximately caused, contributed to, or exacerbated any alleged injury to the plaintiff, and that any alleged delay in the diagnosis of the catheter fragment by these defendants did not cause, contribute to, or exacerbate any alleged injury to the plaintiff.
Dr. Holden set forth the plaintiff's history, care and treatment, including that the Infuse-A-Port was inserted by Dr. Schoenwald at the junction of the superior vena cava and right atrium, and removed by him on May 22, 1998. Dr. Holden set forth that upon his review of the April 28, 1998 chest x-ray, and the May 8, 1998 CT scan of the chest, that it is his opinion that the approximate 7 cm. fragment from the Infuse-A-Port placed by Dr. Schoenwald had already broken off and traveled to the left upper lobe of the patient's pulmonary artery prior to May 22, 1998. He continued that any alleged delay in diagnosing the catheter fragment, or to refer the plaintiff to another physician, made absolutely no difference in her overall outcome since the care and treatment rendered by these defendants did not proximately cause any injury to her. The plaintiff's complaints of bronchitis, shortness of breath, occasional cough, and blood tinged sputum are not related to the retained catheter fragment since the retained catheter is not in her bronchus or lungs. Any delay in diagnosing the retained catheter fragment did not affect the success of the procedure performed on April 18, 2000, by Dr. Sydney S. Yoon, at St. Francis Hospital, to remove the fragment, as the location of the catheter fragment was unchanged since [*11]April 28, 1998. Dr. Holden concluded that these moving defendants did not place the Infuse-A-Port, did not remove it, and that any delay in diagnosing the catheter fragment did not proximately cause, contribute, or exacerbate any of the plaintiff's alleged injuries.
Jose Talavera, M.D., William Robbins, M.D., and Long Island Family Medical Group, P.C. have also submitted the affirmation of David A. Fisher, M.D., a physician licensed to practice medicine in New York State, who is also board certified in diagnostic radiology. He set forth his work experience, and the materials and records which he reviewed. He opined within a reasonable degree of medical certainty that there is no act or omission by these defendants which proximately caused, contributed to, or exacerbated any alleged injury to this patient. He further opined that any alleged delay in diagnosis of the catheter fragment by these defendants did not proximately cause, contribute to, or exacerbate any injury to the plaintiff. Dr. Fisher set forth the plaintiff's history and medical care and treatment.
Dr. Fisher stated that Dr. Talavera from Long Island Family Medicine Group, after having seen and examined the plaintiff on December 30, 1998, had an x-ray taken of the plaintiff's chest. That x-ray was reviewed by defendant Dr. Irene Schulman of Long Island Medical Diagnostic Imaging, who did not identify a retained catheter fragment in her report dated January 1, 1999. Dr. Robbins then saw the plaintiff on October 15, 1999, and had a chest x-ray performed on the plaintiff. That x-ray was sent to Long Island Diagnostic Imaging, where it was interpreted by Dr. Bannon, who noted the presence of a foreign body catheter fragment extending from the region of the main pulmonary artery into the left upper lobe. It is Dr. Fisher's further opinion that the April 28, 1998 chest x-ray, and the May 8, 1998 CT scan of the chest, showed that a 7 cm fragment of the catheter had already broken off and traveled to the left upper lobe of the patient's pulmonary artery, eight months prior to the December 30, 1999 x-ray taken at the Long Island Medical Group.
Dr. Fisher continued that a perfusion scan of the lung conducted at St. Francis Hospital in March 2000, revealed no evidence of a defect in the left upper lung, no evidence of any clots, and no absence of perfusion or blood flow to the lung. Thereafter, on April 18, 2000, at St. Francis Hospital, the plaintiff underwent an unsuccessful procedure to remove the catheter fragment. In comparing these prior x-rays to x-rays taken subsequent to then, Dr. Fisher stated that the Infuse-A-Port did not move and remained in a stable and fixed position.
Based upon the foregoing, Jose Talavera, M.D., William Robbins, M.D., and Long Island Family Medical Group, P.C., have established prima facie entitlement to summary judgment on the basis that there is nothing that they did or did not do which proximately caused the damages claimed by the plaintiff.
The plaintiffs have submitted the affirmation of their expert who affirms he is licensed to practice medicine in New York State and is board certified in general surgery and thoracic and vascular surgery. Although the expert did not set forth his education and work experience, he stated that as part of his practice that he has reviewed radiologic studies including the x-rays and [*12]CT scans, but has not established himself as an expert for interpreting such studies. He set forth the materials and records which he reviewed, as well as the radiologic studies and films of the plaintiff taken before and after the insertion of the Infuse-A-Port on June 17, 1997 and after its removal on May 22, 1998, however, the same have not been provided with plaintiffs' moving papers. He set forth his opinion within a reasonable degree of medical and surgical certainty that Dr. Robbins, Dr. Talavera, and Long Island Family Medical Group, P.C. deviated and departed from good and accepted standards of medical practice on or about January 4, 1999 by failing to recognize and diagnose the presence of a retained foreign body in the plaintiff that was there to be seen on the x-ray taken at Long Island Family Group, P.C. on December 30, 1998; failing to apply differential diagnoses to the patient's symptoms on or about December 30, 1998; failing to notify or advise the plaintiff on or about December 30, 1998 and October 15, 1999 of the retained foreign body left in her; falsely reassuring the plaintiff on or about January 5, 1999 and October 20, 1999 that the x-ray was normal, denying her the opportunity to seek medical assistance and delaying treatment of the plaintiff; failing to call and advise the plaintiff on or about October 15, 1999 of the foreign object left in her body; and failing to review the plaintiff's medical chart and history maintained by them on or about December 30, 1998 and October 15, 12999 to aid them in the proper diagnosis of a retained foreign body..
The plaintiffs' expert stated that due to the departures, the plaintiff suffered permanent injuries, including, heart damage, enlarged heart, valvular disease, pulmonary disease, PVC's, arrhythmias, hypertension, tricuspid insufficiency, sclerosed aortic valve, aortic insufficiency, mitral insufficiency, coronary angina requiring nitroglycerin, palpitations, abnormal ejection fraction, abnormal pulmonary function, nidus of infection, hemoptysis, emboli, thrombosis, arrhythmia or perforation of the pulmonary artery, and erosion injury to the vessel wall with aneurysm formation or rupture resulting in sudden death.
The plaintiff's radiology expert stated that the delay in diagnosing the condition precluded the plaintiff from the timely questioning of the defendant and seeking medical assistance for the foreign body which positioned itself at various times in the right atrium of the plaintiff's heart, in the tricusaid (sic) valve, the right ventricle and main pulmonary artery, pulmonic valve, left pulmonary artery, causing cardiac, vascular and pulmonary injuries to the plaintiff. He continued that due to the departures, the plaintiff suffered permanent injuries, including, heart damage, enlarged heart, valvular disease, pulmonary disease, PVC's, arrhythmias, hypertension, tricuspid insufficiency, sclerosed aortic valve, aortic insufficiency, mitral insufficiency, coronary angina requiring nitroglycerin, palpitations, abnormal ejection fraction, abnormal pulmonary function, nidus of infection, hemoptysis, emboli, thrombosis, arrhythmia or perforation of the pulmonary artery, and erosion injury to the vessel wall with aneurysm formation or rupture resulting in sudden death.
While the plaintiffs' expert set forth that endothelial growth cannot be achieved around a foreign object that is designed and manufactured with active components and agents for inhibiting cell growth to enhance its performance, that it is impossible to endolthelialize an artificial material, he has not set forth a basis for such a conclusory opinion, other than [*13]defendant's expert's suggestion that such endotheliazation is "bunk." Although the plaintiffs' expert has stated that the catheter is not stable, on which indicates mobility and change in the catheter, as demonstrated by x-ray reports and medical reports, he does not state on which x-rays and reports he is basing such conclusory opinion. While plaintiffs' expert stated that Dr. Mair's statement that the plaintiff has not had an infarct is proven inaccurate by three abnormal EKGs, the plaintiff's expert does not set forth the findings or dates of those EKGs or proximately relate any findings to the alleged departure, as distinguished from her underlying illness.
The plaintiffs have also submitted the affirmation of a physician duly licensed to practice medicine in New York State and who is board certified in diagnostic radiology, he has not set forth his training and experience to qualify as an expert. He set forth the records and materials which he reviewed, including the radiological studies after the insert of June 17, 1997 and before and after the surgical removal of an Infuse-
a-Port on May 22, 1998. He stated that his opinions are based upon a reasonable degree of medical and radiologic certainty that Dr. Jose Talavera, Dr. William Robbins, and Long Island Family Medical Group, P.C. deviated from and departed from acceptable medical practice by failing to recognize the presence of a retained foreign body in the x-ray taken at the Long Island Family Group on December 30, 1998; failing to apply differential diagnoses to the plaintiff's symptoms on or about December 30, 1998 and October 15, 1999; falsely reassuring on or about January 4, 1999 that the x-ray of December 30, 1998 was normal, and on or about October 20, 1999, that her x-ray of October 15, 1999 was normal, denying plaintiff of the opportunity to seek medical assistance and delaying treatment of the plaintiff; failing to recognize the presence of a retained foreign body left in the plaintiff on the x-ray they took, read and interpreted on October 15, 1999; failing to speak with the plaintiff about the retained foreign object on the October 15, 1999 x-ray; and failing to review the plaintiff's medical chart and history on December 15, 1998 and October 15, 1999 to aid them in the proper diagnosis of a retained foreign body.
The plaintiff's radiology expert stated that he reviewed the affirmation of the defendant's consulting radiologist, David Fisher, M.D. and that his opinions are conclusory. While the plaintiffs' radiological expert set forth that defendants expert, Dr. Fisher, and Dr. Michael Laucella, who interpreted the radiographic study of April 28, 1998, contradict whether the catheter was in the soft tissues of the anterior chest wall, or not in an intravascular location, the plaintiffs' expert does not distinguish what the term "soft tissue" refers to and does not set forth his finding upon review of that very same study.
The plaintiffs' radiology expert further stated that while defendants' expert Melvin Holden, M.D. opined that there is no medical basis for the lawsuit as there is no act or omission which proximate caused, contributed or exacerbated any injury to the plaintiff by these defendants, that this is incorrect as the catheter is not secure or permanently anchored in the left upper lobe of the plaintiff's pulmonary artery. However, it is noted that Dr. Fisher indicated that the catheter fragment has remained in a stable position without any further complication. The plaintiffs' expert continues that a review of all x-rays, x-ray reports, and medical reports, which he does not specifically identify, indicates that the catheter is not fixed and therefore not stable, [*14]which indicates mobility and change in the catheter position. He, however, has not identified the findings in the various reports to demonstrate the changes and the time period in which the changes allegedly occurred.
The plaintiff's expert opined that the delay precluded the plaintiff from seeking medical assistance for her grave condition and allowed the foreign body to position itself at various times in the right atrium of the plaintiff's heart, in the tricuspid valve, the right ventricle, the pulmonic valve, and the main and left pulmonary artery of the plaintiff, causing cardiac, vascular and pulmonary injuries to the plaintiff. The Transesophageal Echocardiogram (TEE) examination of the plaintiff conducted by Abraham T. Schneider, M.D. on June 21, 2011 indicates a retained catheter which demonstrated some degree of mobility and is transversing the pulmonic valve and extends into the left pulmonary artery. He, however, does not describe the mobility or whether any portion of the catheter fragment is fixed.
It is noted that on June 9, 2011, the plaintiff saw Robert Ruggiero, M.D. who wrote in his report that the plaintiff has had some scattered episodes over the past year of shortness of breath and small amounts of hemoptysis, with a productive cough. Dr. Ruggiero recommended that the plaintiff have a transesophageal echocardiogram. On June 21, 2011, Dr. Abraham T. Schneider performed a transesophageal echocardiogram. His impression was that of a retained catheter device identified across the pulmonic valve and protruding well into the left main pulmonary artery, no associated thrombotic material, no interference with pulmonary artery flow; focally sclerosed aortic valve with mild to moderate aortic insufficiency; mild mitral and tricuspid insufficiency; pulmonary artery hypertension could not be documented in this study; normal right-sided chamber sizes and function; normal LV size and function; and clinical correlation with these findings is suggested.
The plaintiffs' expert has not correlated the clinical findings with the result of the TEE, but has submitted the letter dated June 6, 2011 from Dr. Ruggiero which indicated that the 5' 6" plaintiff weighed 308 pounds and presented with a known piece of catheter which initially dislodged from her port and has remained fairly stable in her pulmonary arterial tree for sometime. He continued that she does have some symptoms at this stage, but it is unclear how this relates to the catheter being in place. He continued that the most prominent complicating factor would likely be a clot forming around the catheter, but if it has not done so at this point, it is probably unlikely in the future. The plaintiffs have additionally submitted the letter dated June 21, 2011 to Brian Fallon, M.D. from Dr. Schneider wherein he stated that there is no thrombus associated with the retained catheter which seems to demonstrate some degree of mobility on this study. Mild to moderate aortic insufficiency was noted and the other chamber sizes and function as well as valves appear to be largely within normal limits. He continued that these findings and her symptoms are not necessarily new, nor have they dramatically changed in many years, and did not opine as to their causes.
The plaintiffs have also submitted the affidavit of Abraham Schneider, M.D., sworn to September 12, 2012, wherein he set forth the findings of the TEE of June 21, 2011. Dr. [*15]Schneider suggests clinical correlation of the findings and does not opine that any alleged delay by Dr. Schulman in diagnosing the severed catheter was the proximate cause of these injuries. He did set forth that the retained catheter demonstrated some degree of mobility, but he did not describe the type of mobility, whether it was partly attached, what portion or portions of the catheter were mobile, and he did not render an opinion concerning further movement.
The plaintiffs further submitted the affidavit dated September 11, 2012 of Frank T. Pollaro, M.D., a cardiologist who conducted a nuclear two-day stress /rest gated SPECT study with imaging on the plaintiff on August 24, 2006. Dr. Pollaro stated that his impression was that of a left ventricular systolic ejection fraction of 50% and hypertensive blood pressure response to exercise. He, however, does not relate these findings to the presence of the catheter or any delay in its removal.
Based upon the foregoing, it is determined that the plaintiffs have failed to raise factual issues with regard to any alleged damages being related to the alleged departures by Jose Talavera, M.D., William Robbins, M.D., and Long Island Family Medical Group, P.C. The plaintiffs have not distinguished damages related to the delay in interpreting the films of December 28, 1998, and those damages which are proximately related to the fragmenting of the catheter and the removal of an incomplete catheter by defendant Schoenwald, previously on May 22, 1998, and his subsequent actions. Nor do the plaintiffs address the issue that the films of April 28, 1998 demonstrated that the catheter was already fragmented prior to removal of the Infuse-A-Port, and that a portion migrated to the left upper lobe/ pulmonary artery. Thereafter, a CT from Southside Hospital dated May 8, 1998, documented the precise location of the isolated fragment within the pulmonary trunk, extending to the left pulmonary artery and into the left upper lobe pulmonary artery, in a configuration matching the recent chest radiographs. Additionally, the chest x-ray performed on May 20, 1998 at Southside Hospital also demonstrated the catheter fragment in the same position from prior examination of April 28, 1998. Thus, when Dr. Schulman interpreted the chest x-ray taken at Long Island Family Group, P.C. on December 30, 1998 as not revealing the catheter, the plaintiffs' experts have not opined to the specific damages from January 4, 1999 until when Dr. Schulman issued a report on October 18, 1999 for the October 15, 1999 chest x-rays of the plaintiff's chest taken at Long Island Family Medical Group wherein she identified a linear radiopaque tube, for which she recommended clinical correlation with the history.
Accordingly, motion (005) is granted and motion (008) is denied and is rendered academic based upon the disposition of motion (005), and the complaint asserted against Jose Talavera, M.D., William Robbins, M.D., and Long Island Family Medical Group, P.C. is dismissed.
MOTIONS (006) and (009)
Irene A. Schulman, M.D. testified to the extent that she is licensed to practice medicine in New York and Florida. She is board certified in radiology and in nuclear medicine. Dr. [*16]Schulman testified that her duty of care is to read various studies, and generate a report which details what she sees either on the x-ray or the scan. She then comes up with either a diagnosis or differential diagnosis, which is used to help the referring physician prevent, diagnose, and treat injury and/or disease. Infrequently, she will call a patient with a result if it were urgent and she could not reach the referring physician. She set forth those conditions which require urgent or immediate intervention. A foreign body in the heart would require urgent or immediate intervention; if it were in a lung, it would require fairly immediate intervention.
Dr. Schulman was not sure if she had been provided with any clinical data from Long Island Family Medical Group along with the chest x-rays performed on December 30, 1998 at Long Island Family Medical Group, and she did not set forth any clinical data in her report dated January 1, 1999 relative thereto. She testified that she interpreted the December 30, 1998 x-rays as a normal radiograph of the chest with no foreign object depicted. She did not request new x-rays after interpreting that x-ray of plaintiff's chest, and testified that she did not make a mistake or miss a foreign object in interpreting the December 30, 1998 x-rays.
Dr. Schulman stated that she also issued a report dated October 18, 1999 for the October 15, 1999 chest x-rays of the plaintiff's chest taken at Long Island Family Medical Group. She identified a linear radiopaque tube projected (overlying or superimposed over without specifying exactly where anatomically it is) over the left upper lobe (of the lung)/left side of the mediastinum (central part of the chest which contains vessels, aorta, and lymph nodes, with the heart right up against it), for which she recommended clinical correlation with the history as to whether any procedures were done that would account for this, such as any previous surgery. She testified that this could be considered a foreign object. This report was faxed and mailed to Long Island Family Medical Group. She did not recall speaking to anyone at Long Island Family Medical Group or the plaintiff concerning this finding, and did not consider this to be urgent, as it could be a chronic or long standing situation, such as various lines or stents. When Dr. Schulman was asked to compare the chest x-rays of December 30, 1998 and October 18, 1999, she stood by her interpretations of each and did not change her opinion as to the findings. Dr. Schulman testified that without a CT or an angiogram, she could not tell definitively if the fragment was in the pulmonary artery, however, she continued, the description of the anatomical location set forth in her report of October 18, 1999, and that set forth by radiologist Dr. Bannon in his March 16, 2000 report, was similar.
Dr. Schulman and Island Medical Diagnostic Imaging, P.C. have submitted the affirmation of Evan R. Mair, M.D. who affirms that he is licensed to practice medicine in New York State and is board certified in radiology. He set forth his education and work experience, and the materials and records which he reviewed. He opined within a reasonable degree of medical and radiologic certainty that neither Irene Schulman. M.D. nor Island Medical Diagnostic Imaging, P.C. caused, proximately caused, or contributed to any of the complaints or damages alleged by the plaintiff.
Dr. Mair set forth the plaintiff's history and opined that his review of the PA and lateral [*17]chest x-rays performed at Southside Hospital on April 28, 1998 demonstrate that the catheter was already fragmented prior to removal of the Infuse-A-Port, and that a portion migrated to the left upper lobe/ pulmonary artery. This, stated Dr. Mair, is further corroborated by a CT from Southside Hospital dated May 8, 1998, documenting the precise location of the isolated fragment within the pulmonary trunk, extending to the left pulmonary artery and into the left upper lobe pulmonary artery, in a configuration matching the recent chest radiographs. Dr. Mair continued that a chest x-ray performed on May 20, 1998 at Southside Hospital also demonstrates the catheter fragment in the same position from prior examination of April 28, 1998.
Dr. Mair continued that Dr. Schulman read the chest x-ray taken on December 28, 1998 at Long Island Family Medical Group. Based upon his review of the x-ray films, the retained catheter fragment was present, however, Dr. Schulman did not refer to the presence of the catheter fragment in her report. On October 15, 1998, the plaintiff's physician at Long Island Family Medical Group had another chest x-ray taken and sent to Long Island Diagnostic Imaging for interpretation. Based upon his review of the x-rays, the catheter fragment was present, and that in interpreting the film, Dr. Schulman referenced a linear radiopaque tube projected over the left lobe/left mediastinum. On March 16, 2000, Dr. Bannon from Long Island Diagnostic Imaging, referenced a radiopaque tube extending from the main pulmonary artery into the region of the left upper lobe, most likely representing an intravascular catheter fragment, possibly from a prior central line. The plaintiff was referred for a pulmonary consult by her physician at Long Island Family Medical Group.
Dr. Mair opined that based upon his review of all radiologic studies available from April 28, 1998 through January 2, 2009, including those read at Long Island Diagnostic Imaging, P.C., the position of the catheter fragment has remained unchanged in position, and is the same distance from the hilum, and overlying the same region of the left upper lobe. Moreover, he continued, as demonstrated by multiple CT examinations, there is no evidence of pseudoaneurysm, or thrombosis surrounding the catheter, or perforation through the vessel, for more than a decade. In addition, there is no wedge of opacity or scarring in any of these studies indicative of infarct, or any evidence of ill effect to the adjacent lung supplied by the pulmonary artery branch. Dr. Mair continued that given the passing of eight months since the first radiologic evidence of fragmentation of the catheter, there was sufficient time for endothelialization and incorporation of the catheter in the body, thereby making removal significantly more difficult via interventional approach. Thus, any further delay beyond this eight month period would not have adversely affected the plaintiff's chances for the successful removal of the catheter fragment. He added that, as recently as June 6, 2011, upon evaluation by the cardiothoracic surgeon, Brian Fallon, M.D., the plaintiff has required no antibiotic or anticoagulant medications as acute or prophylactic treatment for the retained catheter fragment. Thus, concluded Dr. Mair, neither Dr. Shulman, nor any of the personnel at Long Island Diagnostic Imaging can be found to have caused, proximately caused, or contributed to any of the conditions alleged by the plaintiff.
Based upon the foregoing, it is determined that Dr. Shulman and Long Island Diagnostic [*18]Imaging, P.C. have demonstrated prima facie entitlement to summary judgment on the basis that there is nothing that they did or did not do which proximately caused injury to the plaintiff.
The plaintiffs have submitted the affirmation of their expert who affirms he is licensed to practice medicine in New York State and is board certified in general surgery and thoracic and vascular surgery. Although the expert did not set forth his education and work experience, he stated that as part of his practice that he has reviewed radiologic studies including the x-rays and CT scans, but has not established himself as an expert for interpreting such studies. He set forth the materials and records which he reviewed, as well as the radiologic studies and films of the plaintiff taken before and after the insertion of the Infuse-A-Port on June 17, 1997 and after its removal on May 22, 1998, however, the same have not been provided with plaintiffs' moving papers. He set forth his opinion within a reasonable degree of medical and surgical certainty that Dr. Shulman and L.I. Medical Diagnostic Imaging (Island Medical Diagnostic Imaging, P.C.) deviated and departed from good and accepted standards of medical practice on or about January 4, 1999 by failing to recognize and diagnose the presence of a retained foreign body in the plaintiff that was there to be seen on an x-ray taken at Long Island Family Group, P.C. on December 30, 1998; failing to call, notify or advise the plaintiff's physician, Long Island Family Medical group, P.C. and Dr. Robbins on January 4, 1999 of the retained foreign object left in the plaintiff; failing to notify or advise the plaintiff on January 4, 1999 of the retained foreign body left in her; failing to conduct a CT scan and further radiographic studies on or about January 4, 1999; falsely reassuring the plaintiff on or about January 4, 1999 that the x-ray was normal, denying her the opportunity to seek medical assistance and delaying treatment of the plaintiff; failing to call and speak with the plaintiff's physician, L.I. Family Medical Group, P.C. and Dr. Robbins on or about October 18, 1999 to advise of the retained foreign object left in the plaintiff's body; failing to call and advise the plaintiff on or about October 18, 1999 of the foreign object left in her body; and in failing to conduct a CT scan and radiological studies on or about October 18, 1999.
The plaintiffs' expert stated that due to the departures, the plaintiff suffered permanent injuries, including, heart damage, enlarged heart, valvular disease, pulmonary disease, PVC's, arrhythmias, hypertension, tricuspid insufficiency, sclerosed aortic valve, aortic insufficiency, mitral insufficiency, coronary angina requiring nitroglycerin, palpitations, abnormal ejection fraction, abnormal pulmonary function, nidus of infection, hemoptysis, emboli, thrombosis, arrhythmia or perforation of the pulmonary artery, and erosion injury to the vessel wall with aneurysm formation or rupture resulting in sudden death.
While the plaintiffs' expert set forth that endothelial growth cannot be achieved around a foreign object that is designed and manufactured with active components and agents for inhibiting cell growth to enhance its performance, that it is impossible to endolthelialize an artificial material, he has not set forth a basis for such a conclusory opinion, other than defendant's expert's suggestion to suggest such endotheliazation is "bunk." Although the plaintiffs' expert has stated that the catheter is not stable, which indicates mobility and change in the catheter, as demonstrated by x-ray reports and medical reports, he does not state which x-rays [*19]and reports he is basing such conclusory opinion on. While plaintiffs' expert stated that Dr. Mair's statement that the plaintiff has not had an infarct is proven inaccurate by three abnormal EKGs, he does not set forth the findings or dates of those EKGs or proximately relate any findings to the alleged departure, as distinguished from her underlying illness.
The plaintiffs have also submitted the affirmation of a physician duly licensed to practice medicine in New York State and who is board certified in diagnostic radiology, he has not set forth his training and experience to qualify as an expert. He set forth the records and materials which he reviewed, including the radiological studies after the insert of June 17, 1997 and before and after the surgical removal of an Infuse-A-Port on May 22, 2998. He stated that his opinions are based upon a reasonable degree of medical and radiologic certainty that Dr. Irene A. Schulman and Long Island Medical Diagnostic Imaging, P.C. deviated from and departed from acceptable medical practice on or about January 4, 1999 by failing to recognize the presence of a retained foreign body in the x-ray taken at the Long Island Family Group on December 30, 1998; failing to diagnose the presence of a retained foreign body in that x-ray of December 30, 1998 and further failing to call, notify, or advise the plaintiff's physician or the plaintiff of the retained foreign object; failing to conduct a CT scan and further radiographic studies on or about January 4, 1999; falsely reassuring that the x-ray of December 30, 1998 was normal; failing to speak with the plaintiff or her physicians about the retained foreign object on the October 18, 1999 x-ray; failing to conduct a Ct scan and further follow up on or about October 18, 1999.
The plaintiff's expert opined that the delay precluded the plaintiff from seeking medical assistance for her grave condition and allowed the foreign body to position itself at various times in the right atrium of the plaintiff's heart, in the tricuspid valve, the right ventricle, the pulmonic valve, and the main and left pulmonary artery of the plaintiff, causing cardiac, vascular and pulmonary injuries to the plaintiff. While the plaintiffs' radiological expert set forth that defendant Schulman's expert Dr. Mair, and Dr. Michael Laucella, who interpreted the radiographic study of April 28, 1998, contradict whether the catheter was in the soft tissues of the anterior chest wall, or not in an intravascular location, the plaintiffs' expert does not distinguish what the term "soft tissue" refers to and does not set forth his finding upon review of that very same study.
The plaintiffs' radiology expert further stated that the Transesophageal Echocardiogram (TEE) examination of the plaintiff conducted by Abraham T. Schneider, M.D. on June 21, 2011 indicates a retained catheter which demonstrated some degree of mobility and is transversing the pulmonic valve and extends into the left pulmonary artery, thus disproving Dr. Mair's theory that the catheter endothelialized. It is noted that on June 9, 2011, the plaintiff saw Robert Ruggiero, M.D. who wrote in his report that the plaintiff has had some scattered episodes over the past year of shortness of breath and small amounts of hemoptysis, with a productive cough. Dr. Ruggiero recommended that the plaintiff have a transesophageal echocardiogram. On June 21, 2011, Dr. Abraham T. Schneider performed a transesophageal echocardiogram. His impression was that of a retained catheter device identified across the pulmonic valve and protruding well into the left main pulmonary artery, no associated thrombotic material, no interference with pulmonary artery [*20]flow; focally sclerosed aortic valve with mild to moderate aortic insufficiency; mild mitral and tricuspid insufficiency; pulmonary artery hypertension could not be documented in this study; normal right-sided chamber sizes and function; normal LV size and function; and clinical correlation with these findings is suggested.
The plaintiffs' expert has not correlated the clinical findings with the result of the TEE, but have submitted the letter dated June 6, 2011 from Dr. Ruggiero which indicated that the 5' 6" plaintiff weighed 308 pounds and presented with a known piece of catheter which initially dislodged from her port and has remained fairly stable in her pulmonary arterial tree for sometime. He continued that she does have some symptoms at this stage, but it is unclear how this relates the catheter being in place. He continued that the most prominent complicating factor would likely be a clot forming around the catheter, but if it has not done so at this point, it is probably unlikely in the future. The plaintiffs have additionally submitted the letter dated June 21, 2011 to Brian Fallon, M.D. from Dr. Schneider wherein he stated that there is no thrombus associated with the retained catheter which seems to demonstrate some degree of mobility on this study. Mild to moderate aortic insufficiency was noted and the other chamber sizes and function as well as valves appear to be largely within normal limits. He continued that these findings and her symptoms are not necessarily new, nor are they dramatically changed in many years,
As previously set forth, the plaintiff's radiology expert stated that the delay in diagnosing the condition precluded the plaintiff from the timely questioning of the defendant and seeking medical assistance for the foreign body which positioned itself at various times in the right atrium of the plaintiff's heart, in the tricusaid (sic) valve, the right ventricle and main pulmonary artery, pulmonic valve, left pulmonary artery, causing cardiac, vascular and pulmonary injuries to the plaintiff. He continued that due to the departures, the plaintiff suffered permanent injuries, including, heart damage, enlarged heart, valvular disease, pulmonary disease, PVC's, arrhythmias, hypertension, tricuspid insufficiency, sclerosed aortic valve, aortic insufficiency, mitral insufficiency, coronary angina requiring nitroglycerin, palpitations, abnormal ejection fraction, abnormal pulmonary function, nidus of infection, hemoptysis, emboli, thrombosis, arrhythmia or perforation of the pulmonary artery, and erosion injury to the vessel wall with aneurysm formation or rupture resulting in sudden death.
The plaintiffs have also submitted the affidavit of Abraham Schneider, M.D., sworn to September 12, 2012, wherein he set forth the findings of the TEE of June 21, 2011. Dr. Schneider suggests clinical correlation of the findings and does not opine that any alleged delay by Dr. Schulman in diagnosing the severed catheter was the proximate cause of these injuries. He did set forth that the retained catheter demonstrated some degree of mobility, but he did not describe the type of mobility, whether it was partly attached, what portion or portions of the catheter were mobile, and he did not render an opinion concerning further movement.
The plaintiffs further submitted the affidavit dated September 11, 2012 of Frank T. Pollaro, M.D., a cardiologist who conducted a nuclear two-day stress /rest gated SPECT study with imaging on the plaintiff on August 24, 2006. Dr. Pollaro stated that his impression was that [*21]of a left ventricular systolic ejection fraction of 50% and hypertensive blood pressure response to exercise. He, however, does not relate these findings to the presence of the catheter or any delay in its removal.
Based upon the foregoing, it is determined that the plaintiffs have failed to raise factual issue with regard to any alleged damages being related to the alleged departures by Dr. Schulman and Long Island Diagnostic Imaging, P.C., even if their application were timely submitted. The plaintiffs have not distinguished damages related to the delay in interpreting the films of December 28, 1998, and those damages which are proximately related to the fragmenting of the catheter and the removal of an incomplete catheter by defendant Schoenwald, previously on May 22, 1998, and his subsequent actions. Nor do the plaintiffs addressee the issue that the films of April 28, 1998 demonstrated that the catheter was already fragmented prior to removal of the Infuse-A-Port, and that a portion migrated to the left upper lobe/ pulmonary artery. Thereafter, a CT from Southside Hospital dated May 8, 1998, documented the precise location of the isolated fragment within the pulmonary trunk, extending to the left pulmonary artery and into the left upper lobe pulmonary artery, in a configuration matching the recent chest radiographs. Additionally, the chest x-ray performed on May 20, 1998 at Southside Hospital also demonstrated the catheter fragment in the same position from prior examination of April 28, 1998. Thus, when Dr. Schulman interpreted the chest x-ray taken at Long Island Family Group, P.C. on December 30, 1998 as not revealing the catheter, the plaintiffs' experts have not opined to the specific damages from January 4, 1999 until when Dr. Schulman issued a report on October 18, 1999 for the October 15, 1999 chest x-rays of the plaintiff's chest taken at Long Island Family Medical Group wherein she identified a linear radiopaque tube, for which she recommended clinical correlation with the history. Thus, proximate cause for any injuries directly attributable to Dr. Schulman and Long Island Diagnostic Imaging, P.C. have not been demonstrated.
Accordingly, motion (006) is granted and motion (009) is denied as having been rendered academic based upon the disposition of motion (006), and the complaint as asserted against Dr. Shulman and Long Island Diagnostic Imaging, P.C. is dismissed.
Dated:__________________________________________________________
J.S.C.
Footnotes
Footnote 1: The unredacted expert affirmations have been compared to those submitted by the plaintiff and are found to be identical to the redacted affirmations and are returned to counsel for the plaintiffs.
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