Suk Chong Wong v Middlesworth
Annotate this CaseDecided on September 27, 2013
Supreme Court, New York County
Suk Chong Wong, Administrator of the Estate of GLORIA WONG, deceased, Plaintiff,
against
William Middlesworth, M.D., JASON FRISCHER, M.D., LEILA M. PANG, M.D., CHRISTIAN K. PICCOLO, M.D., ALEX PANG, M.D., AMY MESA-JONASSEN, M.D., ROBERT PASS, M.D., and THE NEW YORK AND PRESBYTERIAN HOSPITAL, Defendants.
104530/09
Atty for Plaintiff
Mitchell K. Aaron, Esq.
Torgan Cooper & Aaron, P.C.
17 State Street, 39th fl.
New York, NY 10004
212-232-2500
Atty for Defendant
Martin Clearwater & Bell, LLP
220 East 42nd Street
New York, NY 10017
212-697-3122
Dana Colon, Esq.
McAloon & Friedman, P.C.
123 William Street, 25th fl.
New York, NY 10038
212-732-8700
Alice Schlesinger, J.
This is a wrongful death action involving a young woman, Gloria Wong, who was 18 [*2]years old when she was admitted to New York Presbyterian Hospital on October 2, 2006. Because she was afflicted with the disease of Beta Thalassemia, she had gone to the hospital to have a bone marrow transplant. This disease is a blood disorder that reduces the production of hemoglobin and results in a lack of oxygen to many parts of the body. In order to carry out the transplant, it was necessary to insert a left subclavian Broviac catheter so as to obtain a central line vascular access. The catheter was inserted on October 2. The bone marrow transplant was to be done nine days later. However, the catheter became infected. Therefore, defendant Dr. William Middlesworth, with defendant Dr. Jason Frischer, a Fellow, removed the catheter on October 19, 2006. The plan was to insert another catheter.
The events that occurred on November 7, 2006, involving the insertion of this second catheter and its aftermath constitute the predicate for this medical malpractice action. During the surgery to insert the second catheter, Dr. Middlesworth first attempted to place the catheter in the left subclavian vein, where the earlier one had been, but he was not able to do that. Therefore, he tried to access the right subclavian vein and was able to manipulate the catheter using fluoroscopic guidance so as to redirect it into the right atrium. Dr. Frischer had planned to attend this surgery but was called away before any part of the actual procedure occurred. In fact, he testified that he did not even scrub for it. Further on this point, Dr. Frischer is not even listed on the operative note.
During the procedure, defendant Dr. Leila M. Pang was the assigned anesthesiologist. She was assisted by a first year resident, defendant Dr. Christian K. Piccolo. After Dr. Pang, with the help of Dr. Piccolo, administered the anesthesia at 1:50 p.m. and noted that the various medications went in smoothly, she left the operating room, while Dr. Piccolo remained.
As the procedure progressed, Ms. Wong's blood pressure dropped below 100. When it was first recorded after 2:00 p.m it was 95/48. Then it dropped to 67/38 at 2:10 p.m. It stayed at those numbers, in the 60's and 70's, until about 2:40 p.m when the pressure went down to 57/25. This drop induced Dr. Piccolo, still the only attending anesthesiologist present, to do two things. He administered 40 micrograms of phenylephrine and he paged Dr. Pang. He informed Dr. Pang of the drop in blood pressure, and she returned.
Dr. Pang then directed Dr. Piccolo to give the patient another 40 micrograms of phenylephrine and to increase the fluids being given to her. At 2:50 p.m., with the second dose given, Ms. Wong's blood pressure rose to a non-reassuring rate of 65/30. Dr. Pang remained until the completion of the Broviac catheter procedure and she directed Dr. Piccolo to transfer Ms. Wong to the Post-Anesthesia Care Unit ("PACU") where the patient was assigned to Nurse Huang.
Nurse Huang noted Ms. Wong's rate of consciousness at 3 out of 4, as she had moved her shoulder, opened her eye, and then fell back to sleep. Nurse Huang first came onto the case around 3:00 and testified that shortly thereafter she took Ms. Wong's vitals and they were normal. She recorded this information at 3:25 p.m. However, at 3:35 p.m., this nurse saw Ms. Wong's head draped downward and saw the patient became non-responsive. No blood pressure appeared on the machine. But when it did, it showed 44/23. Nurse Huang sought help from an anesthesiologist in the PACU, and that is when defendant Dr. Amy Mesa-Jonassen first arrived at the scene. She came to provide help [*3]for the patient because Dr. Pang again was not there.
When Dr. Mesa-Jonassen arrived and reviewed the blood pressure readings, she immediately gave two doses of phenylephrine, first 40 micrograms at 3:38 p.m and then 80 micrograms at 3:41 p.m. The patient's blood pressure then rose to approximately 83/53.
A serious investigation was then initiated as to what was causing the extreme hypotension. This investigation was led by Dr. Middlesworth, who arrived in the PACU within a few minutes. First, a chest x-ray was taken; it revealed no evidence of a hemothorax or a pneumothorax and also confirmed that the catheter had been properly placed. Next, an echocardiogram was done, which showed some fluid around the patient's heart. Ms. Wong was given fluid and medications, but her condition continued to deteriorate. At 4:20 p.m. she was intubated by Dr. Mesa-Jonassen.
Dr. Middlesworth then decided that an emergency left thoracotomy had to be done. It was now 4:45 p.m. A thoracotomy consisted of an incision in the chest that exposed the heart and the aorta. Dr. Middlesworth opened the patient's pericardium to evacuate blood that was there. He also performed open cardiac massage.
The decision was then made that the patient had to be returned to the operating room for further surgery to diagnose why she had a cardiac tamponade. This is a serious situation where blood or fluid collects in the pericardium sac surrounding the heart. It prevents the ventricles from fully expanding.
During the second operation, which consisted of an emergency left thoracotomy and sternotomy, Dr. Mesa-Jonassen remained as the anesthesiologist and administered general anesthesia to Ms. Wong. What Dr. Middlesworth found after he opened the chest was a needle puncture of the pulmonary artery. He repaired the puncture with a suture and closed up the patient's chest. Before the closing, however, Dr. Mesa-Jonassen inserted a right dorsalis pedis arterial line.
The patient was then transported to the pediatric ICU in critical condition. The patient never recovered from the events of that day. Months later, in March 2007, she was admitted to a rehabilitation center where she remained until she was readmitted to the hospital on June 27, 2007. There she was monitored for several months. On March 27, 2008, a CT scan revealed that she had suffered a massive left intraventricular hemorrhage, from which she died the next day, March 28, 2008.
It is on these tragic facts that several of the defendant doctors, as well as the hospital, are moving for summary judgment. In the first motion, the movants are Dr. Frischer, Dr. Pass, Dr. Piccolo, and The New York Presbyterian Hospital. Defense counsel points out that plaintiff did not allege any independent acts of negligence against the staff of the hospital. Their expert then opines that Dr. Piccolo did not depart from accepted standards of anesthesiological care and that therefore the hospital should have no vicarious liability for his acts. The moving papers also note that neither Dr. Frischer, nor Dr. Pass, was involved in any of the relevant events.
Later, in the opposition, counsel for the plaintiff does not oppose the motions by Dr. Frischer and Dr. Pass. Therefore, based on this lack of opposition, together with what appears to be these doctors' lack of involvement in any of the critical events, the claims against them are dismissed with prejudice. However, the plaintiff is pursuing the action against Dr. Piccolo.
In a second motion, Dr. Amy Mesa-Jonassen is also moving for summary judgment. [*4]There is opposition to her motion. Therefore, the claims against her will be dismissed as well.
In support of Dr. Piccolo's motion for summary judgment counsel supplies an affirmation from Dr. Marc S. Kanchuger. He is board certified in anesthesia and has been working at New York University Hospital in the Cardiothoracic Transplant Anesthesia Unit. He is also an Associate Professor there.
Dr. Kanchuger has reviewed all of the medical records and the transcripts of the examinations before trial. He gives his opinion, with a reasonable degree of medical certainty, that Dr. Piccolo appropriately carried out his functions as a first year anesthesia resident . He points out that Dr. Piccolo contacted Dr. Pang to return to the operating room, which was proper, and that while he was alone he addressed the drop in patient's pressure appropriately by giving phenylephrine.
In support of the motion by Dr. Mesa-Jonassen, there is a detailed and lengthy affirmation from a Dr. Martin Griffel. Dr. Griffel is board certified in both internal medicine and anesthesiology. He is an attending anesthesiologist at NYU Langone Medical Center where he also serves as a Clinical Associate Professor in the departments of anesthesiology and cardiothoracic surgery.
Dr. Griffel attempts to rebut a number of allegations made by the plaintiff in the Bill of Particulars, some of which he believes are redundant. He finds with a reasonable degree of medical certainty that all of those claims lack merit. First of all, he points out that Dr. Mesa-Jonassen was never involved until the patient went to the PACU; that is when Dr. Mesa-Jonassen was summoned by Nurse Huang, who found the patient to be non-responsive and hypotense.
Dr. Griffel then points out that virtually from the moment Dr. Mesa-Jonassen arrived at the patient's side, she immediately began to treat her hypotension and to investigate what was happening. He details her actions in giving doses of phenylephrine twice within three minutes of each other and appropriately calling the surgical team to come to the PACU. When Dr. Middlesworth arrived, which was soon after, Dr. Mesa-Jonassen assisted him as far as diagnosing the problem and later in administering anesthesia during the second operation.
Dr. Griffel, first in a general way, asserts that none of the allegations against this defendant have any validity. He says that "at all times, Dr. Mesa-Jonassen met the standard of care for an anesthesiologist." He then laboriously and convincingly deals with each of the 26 claims against the defendant doctor. Dr. Griffel's bottom line (at p. 16) is that Dr. Mesa-Jonassen, who "volunteered to assist in an emergency situation, provided timely and appropriate resuscitation and properly consulted the surgical team to assist in investigating the cause of the hypotension when the patient continued to deteriorate. Dr. Mesa-Jonassen also properly assisted the surgical team in a timely diagnosis and repair of the perforation."
Dr. Griffel also opines that nothing that Dr. Mesa-Jonassen did or did not do was a proximate cause of Ms. Wong's injuries and death because the arterial puncture occurred well before this doctor ever saw the patient. Rather, he further opines that this doctor's appropriate and timely action in response to Ms. Wong's symptoms allowed for a timely diagnosis and repair.
Dr. Griffel clearly establishes a prima facie case on behalf of Dr. Mesa-Jonassen. [*5]I cannot say the same thing with regard to Dr. Kanchuger, who opines in favor of Dr. Piccolo in what I believe is a summary and conclusory fashion. This deficiency is brought home to the Court after reading the opposition affidavit submitted on behalf of the plaintiff.The affidavit is from a doctor who is licensed in Connecticut and board certified in anesthesiology. He states that he did his residency at the Hospital of the University of Pennsylvania is affiliated now with a major hospital in Connecticut. He has also reviewed the records and affirmations of the supporting experts. He believes, with a reasonable degree of medical certainty, that the hospital, Dr. Piccolo, and Dr. Mesa-Jonassen were all negligent and that the negligence was a cause of Ms. Wong's brain injury, paralysis, and death.
With regard to the departures alleged against Dr. Piccolo, plaintiff's expert convincingly creates issues with regard to some of them. His position is that Dr. Piccolo, even though he was left alone in the operating room after Dr. Pang left, still had an obligation to attend to the patient in a proper way. This doctor believes that Dr. Piccolo failed to treat Ms. Wong's hypotension, failed to ascertain the cause of the hypotension during the surgery, failed to timely administer ephedrine during the surgery, failed to administer adequate fluid to the patient during the surgery, failed to alert Dr. Middlesworth about what was happening to the patient before Dr. Pang returned, and failed to contact Dr. Pang in a timely way to alert her to the patient's condition. He also opines that Dr. Piccolo failed to properly report events that occurred during the surgery when he transferred Ms. Wong to the PACU.
This doctor also opines that Dr. Piccolo incorrectly characterized the plaintiff's blood pressure as being within normal limits between 2:00 p.m. and 2:35 p.m. during the surgery. As referred to earlier, shortly after 2:00 p.m., Ms. Wong's pressure was read at 95/48 and it then dropped to 67/38 at 2:10 p.m. and remained in the 60's and 70's until 2:40 p.m. when it further dropped to 57/25. This last reading induced Dr. Piccolo for the first time to administer phenylephrine and call Dr. Pang.
The Reply first urges the Court to reject the opposition because it was two days late. Plaintiff explains that the time was spent getting a signature from their expert. Nonetheless, defense counsel finds this delay inexcusable, but I do not. Cases should be decided on the merits.
Then counsel for Dr. Piccolo points out that many of the claimed departures were never mentioned before in the Bill of Particulars and therefore should not be allowed now. Here I agree, so I have not considered the following departures alleged for the first time in the opposition papers: that a certain medication was contraindicated; that the amount of anesthesia should have been decreased; the failure to administer ephedrine; the failure to administer sufficient fluid during the surgery; and the failure to report the events to the PACU nurse.
But I do find that the expert's affidavit in opposition, with regard to other claims against Dr. Piccolo, is sufficient to keep the doctor in this case. Certainly, there is an issue here as to whether or not Dr. Piccolo properly characterized the patient's blood pressure after 2:00 p.m and took appropriate action. Further, there is the issue as to whether he waited too long before getting help from Dr. Pang, and whether he waited too long in giving the patient medication to raise her blood pressure. Another issue is whether Dr. Piccolo departed from appropriate standards of care in not informing the surgeon Dr. Middlesworth [*6]as to what was happening to his patient. Arguably, the fact that Ms. Wong was persistently hypotense in a significant way was information that the surgeon was entitled to have, but did not here until at least 2:40 pm. when Dr. Pang returned. If the surgeon had been notified earlier of the persistent low blood pressure readings, he may well have sought out the cause and located the perforated artery hours earlier.
I am rejecting any claims directly against Nurse Huang and indirectly against the hospital on her account, as urged by defense counsel. Again, there were no individual allegations in the Bill of Particulars against her. Also, the allegation that Nurse Huang failed to take Ms. Wong's vital signs between 3:00 and 3:25 p.m., when she recorded them, is based on a misreading or misunderstanding of the facts. Both Nurse Huang and Dr. Piccolo testified that at 3:00 p.m when the patient was received in PACU, vital signs were taken and were normal.
With regard to Dr. Mesa-Jonassen, the plaintiff's expert essentially sets out three departures against her. The first one is a new claim, never earlier asserted and one that he also asserts against Dr. Piccolo, that the administration of phenylephrine was contraindicated in patients like Ms. Wong who had low cardiac output. The second departure refers to Dr. Mesa-Jonassen's alleged failure to administer ephedrine. Finally, this expert opines that this anesthesiologist departed from accepted standards of care because she failed to consider in her differential diagnosis that the hypotension was the result of internal bleeding.
In reply, I received another affirmation from Dr. Griffel, who appears somewhat outraged with the first departure that the plaintiff's anesthesiologist asserts. He says that the assertion that phenylephrine is contraindicated in a patient such as Ms. Wong was not only brand new to this case, but was brand new in his experience and in all reported literature that he knows. He says (at p. 2) that: "Never in reported literature, or in my experience, have I ever seen any challenge to the use of phenylephrine to treat a perioperative patient with hypotension."
With regard to the claim that Dr. Mesa-Jonassen should have administered ephedrine instead of phenylephrine, he also argues that the claim has no validity. He states that it is the standard of care to administer either one. He also points out that this claim was not made in the plaintiff's Bill of Particulars because if it had, he would have responded to it earlier.
Dr. Griffel goes into great detail with regard to these newly claimed departures. He also refers back to his original affirmation where he talks about Dr. Mesa-Jonassen's appropriate response to a patient suffering from hypotension and repeats that opinion here. Finally, with regard to proximate cause, he points out that although the plaintiff's expert says that Dr. Mesa-Jonassen actions were a substantial factor in causing injury to the decedent, that expert fails to establish how that is the case when it was the arterial puncture that caused the bleed well before Dr. Mesa-Jonassen ever saw the patient.
I believe that Dr. Griffel, in his two affirmations, successfully deals with and disposes of the claimed departures against Dr. Mesa-Jonassen. First of all, consistent with my earlier decisions here, I will not consider the first two departures alleged against Dr. Mesa-Jonassen in the opposition. They were never asserted before, and even had they been, I believe Dr. Griffel successfully refutes them.
The third departure, regarding this doctor's failure to diagnose and treat the patient, [*7]has no merit in light of all the things that the doctor did do that were documented. Finally, on the issue of causation, the opposition is simply insufficient against this doctor.
So to recapitulate, the claims against Dr. Frischer, Dr. Pass, and Dr. Mesa-Jonassen are dismissed with prejudice, but the motion by Dr. Piccolo is denied. The motion by New York Presbyterian Hospital is granted, except for claims of vicarious liability based on the actions of Dr. Piccolo. I do not find that liability has been shown with respect to any other actions or inactions by the hospital staff.
Accordingly, it is hereby
ORDERED that the motions for summary judgment by defendants Jason
Frischer, M.D., Robert Pass, M.D., and Amy Mesa-Jonassen, M.D., are granted, and the Clerk is directed to sever and dismiss those claims; and it is further
ORDERED that the motion for summary judgment by defendant Christian K. Piccolo, M.D., is denied; and it is further
ORDERED that the motion for partial summary judgment by The New York Presbyterian Hospital is granted, except for claims of vicarious liability based on the actions of Dr. Piccolo.
Dated: September 27, 2013
__________________________
J.S.C.
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