Manswell v Montefiore Med. Ctr.
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Manswell v Montefiore Med. Ctr. 2014 NY Slip Op 33407(U) December 24, 2014 Supreme Court, Bronx County Docket Number: 308301/08 Judge: Douglas E. McKeon Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] . FILED Ja 09 2015 Bronx County Clerk SUP EME COURT OF THE STATE OF NEW YORK OUNTY OF BRONX - PART IA-19A -- --- ----------------------------------------------------------X EX ER MAN SWELL, as Administrator of the Estat of JOANNA HAMILTON MANSWELL a d EXTER MANSWELL, Individually, Plaintiff(s) - against - INDEX NO: 308201/08 ONTEFIORE MEDICAL CENTER, DECISION/ORDER Defendant(s) -- ---- ---------------------------------------------------------X HON DOUGLAS E. MCKEON Motion by defendant Montefiore Medical Center for an order dismissing plain iff's complaint pursuant to CPLR ยง 3212 is decided as follows. This is a Medical Malpractice and Wrongful Death Action wherein plaintiff s that defendant's negligence caused decedent, Joanna Manswell, c m lications following a transsphenoidal surgery to remove a pituitary tumor. On October 4, 2007 decedent was admitted to Montefiore for a surgical tr ns phenoidal resection of a pituitary tumor. After the surgery she was moved to the S rgical Intensive Care Unit (SICU) at Montefiore. While there, decedent was moni ored to check her heart, blood oxygen levels, and blood pressure in addition toot er vital signs. The SICU had twelve beds for twelve patients and each nurse w rk d a twelve hour shift caring for a maximum of two patients per shift. While in 1 [* 2] . FILED Ja 09 2015 Bronx County Clerk SIC decedent would have a nurse check on her approximately every two hours dditional visits for feeding and medication. There was also one Critical Care a ten ing physician on every twelve hours along with physician assistants and f llo s. The attending would examine decedent at the beginning and sometimes at t e e d of the shift as well as be called in to respond to any codes. Additionally, ce ent was examined daily by a doctor from neurosurgery and almost daily by ct rs from endocrinology, pulmonology, orthopedics, and renal specialties. Finall , a respiratory specialist would work on decedent's blood oxygen levels. On October 5, 2007 decedent was extubated from a breathing tube she had ce the surgery. Although she was deemed stable and alert she was in a c mpromised medical condition and taking various medications including insulin, Al but rol, blood pressure medication, Protonix, pain medications and antibiotics. The follo ing morning, October 5th, she still required blood pressure control, extensive m di ations, glucose control and control due to compromised kidney function. Her respi atory function was stable. Nurse Geraldine Andrada was on the day shift that d ya d noted that decedent was able to tolerate sitting in a chair and a regular diet. uterized records from Montefiore that day indicate that during the day on er 5th decedent's vitals were normal and she was alert and stable. At 5:00 urse Andrada checked decedent's vital signs which were normal and her od oxygen level was 97 percent. At 5:37 p.m. a respiratory specialist examined ent and noted no distress. At 5:00 p.m. Nurse Andrada went to check on her 2 [* 3] FILED Ja 09 2015 Bronx County Clerk a d t administer medications. At that time decedent was found sitting in a chair but n n- esponsive except to pain, her heart rate was lower than earlier and she was nd clammy. Decedent was transferred to the bed and critical care attending lerted. Dr. Said was the critical care attending who responded to the alert at a pr ximately 6:30. Physician Assistant Lace assisted Dr. Said. Dr. Said intubated ce ent and noted that there was normal but decreased breathing sounds b lat rally. Decedent's extremities were warm with positive pulse. Her oxygen levels ere at 66 percent. Gastric fluid was noted around the vocal cords and the tube was s al d in place and fluid suctioned out. Dr. Said testified that noting some fluid a ou d the vocal cords is an indicator of aspiration but does not indicate if any fluid is in he lungs. Once the intubation was complete Dr. Said noticed good bilateral b eat sounds. Records indicate that after the intubation decedent's blood oxygen I vel were normal. On October 7th the Critical Care attending noted that decedent's r nal function was worsening. Her lungs were clear and she remained intubated. On 0 tober ath decedent had septic shock and was put on Pressors to alleviate the in ec ion. On October gth records indicate decedent was critical but improving. On Octo er 11th decedent underwent a tracheotomy. On October 12th decedent was still e pe iencing problems with renal and lung function. At 9:55 a.m. she went into c rdi c arrest and doctors used life saving procedures. She arrested a few more ti es and ultimately passed away at 11 :05 a.m. An autopsy done by the New York C ty edical Examiner on October 13, 2007 states the cause of death as 3 [* 4] FILED Ja 09 2015 Bronx County Clerk yp rtensive Cardiac Disease specifically Marked Hypertrophy of the Heart. The notes the autopsy report does not mention any sign of infections in the lungs. Plaintiffs' claim that defendant Montefiore negligently monitored and treated ent after the surgical procedure on October 4, 2007 and that the doctors and edi al staff were negligent in monitoring and timely treating her when she became 1 n n-r sponsive on October 6 h, two days after the surgery. They further allege that ce ent was not properly intubated after she was found unresponsive and that this d an infection of the lungs which led to her death. Movant argues that at all relevant time it treated plaintiff in accordance with priate standards of medical care. In support of the motion, movant has p vi ed the Court with the opinion of Dr. Ira Wagner. Dr. Wagner, a physician ar Certified in Internal Medicine and Critical Care, opines that at the time of the decedent had multiple organ related problems due to diabetes, h pe ension, obesity, reduced lung function and a history of congestive heart re ate issues. The surgery was necessary to reduce the symptoms and aid in all vi ting some of her medical conditions. It is Dr. Wagner's opinion that although d cedent required intubation on October 6, 2007 the cause of her becoming unres onsive and the result of the intubation was not the cause of decedent's death. H cl ims that decedent's multiple medical issues made treating her extremely icu t and even with good medical judgment and treatment by Montefiore ians her body was unable to sustain itself. Dr. Wagner opines that decedent's 4 [* 5] FILED Ja 09 2015 Bronx County Clerk c m licated medical issues required the October 4th surgery or she would have died. H also opines that the Montefiore staff provided excellent medical care within the s an ard of care after the surgery in maintaining her health and trying to save her lif . inally, Dr. Wagner opines that the care and treatment by the doctors and medi al staff did not cause decedent's death. Dr. Wagner discusses plaintiff's medi al condition in great specificity opines that the sepsis, hypoxia and renal ms were not caused by anything related to decedent's intubation on October y any alleged departure by doctors or staff. He opines that there was a multi o ga failure from a combination of medical factors such as Cushings, hypertension, di be es, history of congestive heart failure and reduced lung function in decedent a d t at this combination weakened decedent and the efforts made to help her i pro e. The doctor opines that all the procedures performed upon decedent in lu ing the initial Cushings surgery, the intubation and the tracheotomy were p rfo med within appropriate standards of care, that the doctors and medical staff pr pe ly and timely gave medication, checked on her, and used excellent medical g ent in treating the multiple serious medical problems that occurred ult neously. He further opines that none of the treatment rendered was the cause of decedent's death. In opposition, plaintiffs focus on the events starting at 6:00 p.m. on October 6, 20 7. Plaintiffs argue that when decedent's condition worsened while in SCIU th re as a significant delay by the staff of between 45 and 60 minutes in contacting 5 [* 6] FILED Ja 09 2015 Bronx County Clerk a cri ical care doctor to intubate and stabilize her. They claim that this delay itted a hypoxic state to go untreated leading to aspiration of gastric contents er airways and to a steady decline in her respiratory status, sepsis, multiple o ga failure and death. When Nurse Andrada found plaintiff at 6:00 p.m. she was u re ponsive, arousable only to deep pain, with abnormal blood pressure and low n level. Plaintiffs argue that the delay in intubating plaintiff was negligent. Andrada stated that from the time she found decedent it would be within and accepted range on this medical unit for the intubation to occur at 7: 15 pm. Plaintiffs have provided the Court with the expert affirmation of Dr. Roh. Dr. s a physician Board Certified in Anatomic Pathology, Clinical Pathology and sic Pathology. Dr. Roh opines that 45 to 60 minutes was too much time to wait the patient is hypoxic and unresponsive, had a low blood oxygen level and hose medical profile includes so many issues. Plaintiff argues that whether it took t ree quarters of an hour, an hour, or an hour and a quarter, given decedent's c nd tion, it was an unacceptable delay in treating her and constituted a departure ood and accepted practice. The Court finds that there are issues of fact surrounding the care rendered to ent on the evening of October 5th sufficient to defeat the instant motion for ary judgment. Plaintiff has shown that it took at least forty-five minutes for the II attending to treat Ms. Manswell after being called by Nurse Andrada. 6 [* 7] FILED Ja 09 2015 Bronx County Clerk ugh movants argue that this is an acceptable length of time plaintiff's expert it is a departure from the standard of care. The Court further finds that whether departure was a proximate cause of decedent's death is an issue of reement among the experts and is sufficient to defeat the motion for summary ent. Plaintiff's expert explains that the departure of delaying the call or for the tte ding to arrive to attend to this patient who had a complicated medical profile led t s rious adverse medical events including hypoxia, aspiration, respiratory arrest, ep is and ultimately death. Movant's expert has not addressed plaintiff's expert's pin on on harm done to decedent by the delay in notifying the on call attending in ICU treating decedent. Because the Court finds questions of fact sufficient feat the motion, it is denied. So ordered. at d: Douglas E. McKean, J.S.C. 7
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