Pusey v Parithivel

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Pusey v Parithivel 2014 NY Slip Op 33418(U) December 16, 2014 Supreme Court, County of Bronx Docket Number: 303214/11 Judge: Stanley B. Green 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] F LED De 23 2 14 Bronx County Clerk ME OURT OF THE STATE OF NEW YORK TY 0 BRONX: IA-6M C -- ---- -------- -----------------------------------------------X E IEPUSE , INDEX No. 303214/11 Plaintiff( s), - againstV L ORE P RITHIVEL, M.D. and BRONX-LEBANON H S ITAL ENTER, Defendant( s) DECISION -- ---- -------- ---------------------------------------------------X otion by Vellore Parithivel, M.D. and Bronx-Lebanon Hospital Center (BLHC) for t to CPLR §3212 granting summary judgment dismissing the complaint is Plaint ff was referred to Dr. Parithivel on June 25, 2010 for evaluation to undergo a s ree 'ng col noscopy. Dr. Parithivel examined plaintiff and noted no significant bowel c mp aints o rectal bleeding. A colonoscopy was scheduled for September 14, 2010. On S pte ber 1 , 2010, plaintiff was admitted to BLHC for ambulatory surgery. Prior to the p oce ure, s o s signed consent forms. During the procedure, Dr. Parithivel encountered an ction a the recto-sigmoid junction and could not see any more open lumen (the pathway as g ven p n medication and improved. The fi llowing day, plaintiff was discharged as she had no complaints, was afebrile and -1- [* 2] F LED De 23 2 14 Bronx County Clerk h r w ite blo d cell count was normal. She was instructed to return to the ED if she had d'ffic lty mo ing her bowels, any bleeding, or fever over lOlF. On S ptember 17, 2010, plaintiff returned to Dr. Parithivel's office for a follow up visit. as afeb ile and her vital signs were normal, but she complained of upper abdominal pain d p ·n in t e neck. She stated that she had moved her bowels that morning and reported, for t e fir t time, that she had experienced a two week bout of mucoid diarrhea in Antigua, which h de ded ap roximately two weeks prior to the follow up visit. Plaintiffs abdomen was soft o diste sion, but there was vague, diffuse tenderness, so she was admitted to the hospital. Plainfffs admitting diagnosis on September 17, 2010 was perforated colon with free air o se ed by hest x-ray. The plan was to rule out perforation and rule out diverticulitis. An inal C was performed and revealed a collection in the pelvis. Plaintiff underwent an e plo atory 1 parotomy, which revealed extensive adhesions between the rectum and small "abscess with thick yellow pus around the recto-sigmoid and distal sigmoid c Ion." Ac lostomy and Hartmann Procedure (which involves a resection of the recto-sigmoid c Ion with er ation of a colostomy) were performed by Dr. Parithivel. The pathology repot dated S pte her 2 , 2010, indicates the principal pathology finding was "perforated acute and chronic d'vert culitis.' On September 23, 2010, plaintiff was discharged home with a colostomy in p ace. The c lostomy was successfully reversed on April 6, 2011 at another hospital. Plainfff claims that Dr. Parithivel and Bronx Lebanon deviated from accepted standards o me ical pr ctice by failing to timely diagnose and treat a perforation of her colon and that as a elay in diagnosis, she had to undergo a Hartmann's procedure and endure the d sco fort d embarrassment of having a colostomy for seven months. -2- [* 3] F LED De 23 2 14 Bronx County Clerk Dr. arithivel and BLHC seek dismissal of the complaint on the grounds that the care and t eat ent re dered to plaintiff was at all times within the standard of care and their actions were ot t e prox mate cause of the claimed injuries. In su port of the motion, Dr. Parithivel and BLHC submit the expert affirmation of Dr. , who pines that plaintiffs colon was not perforated by the scope during Dr. Parithivel's ance of the colonoscopy and that her abdominal pain and the need to undergo a surgical r sec ion of he diseased and abscessed portion of her colon and the placement of a temporary olos omy ere "directly and solely caused by her chronic diverticulitis" and not as a result of egli ence o the part of Dr. Parithivel and/or Bronx-Lebanon. Dr. F ank explains that "diverticulitis" means that there is a diseased section of intestine icro- erfocations and often a gross perforation in the intestinal wall and that the erfo ations ccur spontaneously, as part of the disease process, because the bowel wall degrades om he dis ase until it finally forms actual holes through which fecal matter and air can pass. e o ines th t Dr. Parithivel and BLHC staff properly observed plaintiff for twenty-three hours a er he col noscopy due to her initial complaints of pain and that in light of abscesses, thick d diverticula at the recto-sigmoid that were found upon surgical exploration on ber 1 th and the large length of resected edematous colon, with multiple shallow and deep p uc es incl ding one diverticulum with a 1.5 cm perforation, plaintiffs treatment options, the e ten of rep ative surgery and the need for a colostomy would have been the same, regardless o w ther t e condition had been discovered on the day of the colonoscopy, the following om ng befi re she was discharged from the hospital, or at any moment in between her postc lon scopy discharge and her re-admission to BLHC on September 17, 2010. -3- [* 4] F LED De 23 2 14 Bronx County Clerk Plain iff contends that the motion must be denied because the affirmation of her expert that D . Parithivel departed from the prevailing standard of care by failing to order a flat du right bdominal x-ray and/or a CT scan of the abdomen immediately following the aborted c Ion scopy. He states that it was a breach of the standard of care for Dr. Parithivel to have obstruction after advancing the scope 30 cm and not to have investigated the ability to further advance the scope. Plaintiffs expert opines that it was not ply admit plaintiff for monitoring following the procedure and that the failure to a ti ely x-ray and/or CT scan of the abdomen deprived plaintiff of the chance to be p ace on ho el rest and antibiotics to address the diverticulitis if, in fact, a perforation had not y t d velope , which would have likely improved plaintiffs chance of avoiding any surgical ntion. In the event that the imaging would have revealed a perforation on September 14, 2 10, then pl intiff would have been a candidate that day for primary closure with no need for a he expert opines that the failure to order the required imaging resulted in a delay of s dur'ng which no treatment of plaintiffs developing and progressive diverticulitis was g ven He o ines that this delay allowed the condition to progress to the point where plaintiff d vel ped m ltiple adhesions and ultimately required lysis of adhesions, a peritoneal washout, an e er ency artmann's procedure and a colostomy for seven months. Plain iffs expert also opines that BLHC staff departed from the standard of care by act Dr. Parithivel at or about 8 p.m. on the night of September 14, when plaintiff f"unbearable abdominal pain", accompanied by sweating. He opines that pain that ad that it required pain medication (Demerol) should have precipitated the ordering of a d upri ht x-ray of the abdomen and/or a CT scan of the abdomen. He opines that the -4- [* 5] F'LED De 23 2 14 Bronx County Clerk o is 'ons of Dr. Parithivel and BLHC staff were the proximate cause of plaintiffs need for and colostomy. In re ly, Dr. Parithivel and BLHC contend that plaintiffs expert's opinion is conclusory d n t supp rted by reference to the medical records. They submit a further affirmation by Dr. F ank whoo ines that plaintiffs expert's opinion is contradictory in that he opines, at the outset, e colo oscopy caused the perforation but then goes on to posit that plaintiff likely would een fu ly treatable with rest and antibiotics if a film had been taken after the colonoscopy d t e "true situation" discovered. Dr. Frank states that, while he agrees that a gross p rfo ation ei ust be addressed by classical surgery or endoscopically, plaintiffs expert's opinions concil ble and fail to address plaintiffs bowel symptoms of several weeks earlier. He a so 0 ines t at the abscess that had formed in plaintiff develops slowly when the disease is estab ished and does not develop in 48 hours. Thus, he opines that plaintiff would have r quir d a co ostomy and the use of a Hartmann's procedure even ifher condition had been d agn sed e otion for summary judgment, it is the burden of the summary judgment proponent onstra e, prima facie, that he is entitled to judgment as a matter of law with evidence r gar less of he sufficiency of the opposing papers (Alvarez v. Prospect Hosp., 68 NY2d 320; ew York Univ. Med. Ctr., 64 NY2d 851). The burden then shifts to the party otion to demonstrate by evidentiary proof in admissible form that a triable issue Zuckerman v. City of New York, 49 NY2d 557). A court's task is issue finding r her than is ue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395) and -5- [* 6] FILED De 23 2 14 Bronx County Clerk th co rt mus view the evidence in the light most favorable to the party opposing the motion, gi ing that p y the benefit of every reasonable inference and ascertaining whether there exists tri ble i~s e of fact (Boyce v. Vazquez, 249 AD2d 724). While Dr. Parithivel and BLHC have presented competent evidence sufficient to es abli h, pri a facie, that they did not depart from the accepted standards of care in their ' . . tr atm nt of laintiff, the opinion of plaintiffs expert, that: (1) Dr. Parithivel departed from good d ~ epted tandards of gastroenterological practice by failing to perform x-ray or a CT scan of pl 'nfffs ab omen immediately following the colonoscopy to investigate and evaluate for a ass r perfo ation; (2) BLHC staff departed from the standard of care by failing to contact Dr. P ith vel on he night of September 14, 2010 regarding plaintiffs complaint of"unbearable a do inal p in" accompanied by sweating; and (3) that the delay in diagnosis of plaintiffs c ndi ion de rived her of the opportunity to be treated with either bowel rest and antibiotics if t ere as no erforation or by primary closure of a perforation, if one existed, with no need for a c los omy, r ises material issues of fact which preclude a grant of summary judgment. Alth gh Dr. Frank opines that plaintiffs expert's opinion is contradictory because he that t e colonoscopy "did most likely cause or contribute to the perforation," in fact, his o ini n is n contradictory because he then opines that if the tests revealed that plaintiffs "true s tuat on" w s that no perforation had developed, then she would have had a chance to be placed () b wel res and antibiotics to address the diverticulitis and if she had already developed a erfo ation, hen she would have been a candidate on that day for primary closure with no need Whil Dr. Frank opines that a colostomy would have been necessary regardless of -6- [* 7] . F LED De 23 2 14 Bronx County Clerk . w eth r the te ts were performed two days earlier because the abscess could not have formed in s, this ontention is not properly considered because it was raised for the first time in apers. n any event, plaintiff medical records, which show that she did not report any inal pa· n prior to the colonoscopy and the conflicting expert opinions raise triable issues o fact and er dibility, which preclude a grant of summary judgment (Fzye v. Montefiore Med . ., 7 AD3 15). Accordingly, this motion for summary judgment is denied. This c nstitutes the decision and order of the court. D ted Dece ber 16, 2014 STANLEY GREEN, J.S.C. -7-

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