Morton v Richmond Univ. Med. Ctr.
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Morton v Richmond Univ. Med. Ctr. 2014 NY Slip Op 33615(U) November 19, 2014 Supreme Court, Richmond County Docket Number: 101317/10 Judge: Desmond A. 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] Office of the Richmond County Clerk - Page 1 of 5 10/21/2015 11 : 53 : 04 AM SUPREME COURT OF THE STATE Oi' NEW YORK COUNTY Of RICHMOND ••• -·••NWM•••H •••• •ii!IM ---•••••MW'l''ll #1111 'I' ._.......,.. JAMES MOR roN. DCM Part J Presem: Hon. Desmond A. Green Pltlinr(ff. DECISION AND ORDER RJCHMOND UNIVERSITY MEDICAL CENTER. DAVID L CORNELL. M.D. and ALEXANDER Indent No. 101317/IO 2223..00:Z Motion No. CHANG.M.O. ti ""'"*·--~ The following papers numbered I to 3 were fully l'iubmitted on the H111 day of October. 2014: Pages Numbered Notice of Motion for Summary Judgment by Defendants Richmond University Medical Center and David L. ComeU. M.D .• with Suppo · Exhibits and Memonmdun1 oft.aw (dated July 14. Atlinnarion in Opposition by Plaintiff. with· Supporting Papers. Exhibit ud Memorarldwn of law (dated Augus& 29. 2014)......................................... u ......................... ., ...................... 2 Reply Affirmation (dated Sepaember9. l014).................................................. . Upon the foreaoing. papers. defendants' motion for summary judarnent is denied This is a medical malpractice action ari&ing out of the care rend~red to plaintiff. Jlil!DCS Monon. by defendarlt Dr. David Cornell during a surgical procedure to remove hit gall bladder performed at defendarlt Richmond Universit)' Medical Center {hereinafter "RUMC") on December I. 2009,I In pertinent part, plaintitTdaims that Or. Ctlmell's failure to, LL· ...perform the proper surgical and medical procedures" cau.iied plaintitl'to su.'ttain a ..[l]m:eration of right hepatic wtcry, blood vessels ud/or organs result.ing in M extensive Jos.~ of blood and requiring exten..Uve surgery lo repair same~ abdominal pain and discomft1rt; [ud) permanent scamng to abdomen'' (set' v mfied Bill of Pwticulars~ paras 3. 9). Plaintiff further alleges that the doctor failed to pl'O(ure bis informed 1The action against defendant Dr. Alexander Chang was disconrinued. with prejudicci. in a so ordered stipulation dated April IO, 2014, [* 2] Office of the Richmond County cierk - Page 2 of 5 10/21/2015 11:53:04 AM consent to the •·risks. hazards and alternatives'' conm,~tcd with the procedure (see Verified Complaint. paras 21-26). As 1.0 RUMC plainlitf claims that the hospital was negligent in failing to "'imtestigare the qualifications, competence. capacity. abilities and capabilities of [Dr. Comenr (see Verified Bill of Particulars. para)). In moving for summary judgment. defendants maintain that there are no triable issues of fact as to whether any act or omission on the pan of Dr. Cornell \\'ftS the proximate cause of plaintiff's injuries. In support. defondants submit the affirmat.ion of Dr. Rohen Ward. a physici.an board cenified in surgery and surgical criticaJ care. Based on his review of the pertinent pleadings., bills of particulars. medical records and the deposition transcripts of the parties and non·party wflncSSCS. Dr. Ward opines ""V.ithin a reasonable degree of medical a..-nainty that there were no depanures from any standards of medical or surgical care by either defendant, and that there was no action or inaction by the defendants which proximately caused the plainUtl"' s alleged injuries" (s·ee Expert Affirmation of Robert Ward. M.D•• para :n Morespeci lically. Dr. Ward opines that "(g]iven Mr. Morton's history. clinkal findings and diagnostic tes1ing. it i.s clenr that he had 11 significant case of acute cholecystitis... [and that, i]f teft untreated, seriou1 complications can occur. includ.ing, but not limited to. nipture of the gallbladder, [and] inJeclion leading to sepsis, or death" {jg. at 58·59). Dr. Ward further opined that "Dr. Cornell· s informed consent was suJllcient and comported with the standani of care~ as weU as Public Health Law §2805-d." Upon reviewing Dr. Cornell's deposition testimony, Dr. Ward opined that Dr. Com.ell had ''folly explained the risks associated with a laparoscopic procedme, including the possibility that visuali:mtion can be limhed. that an artery can be lacerated. that bleeding can occur. and that the procedme may need to be converted to an open procedme"' lid.. at 63). With reprd to plainritrs ..claim that it was [his) ... hepatic an.cry which was lacerated. [Dr. Ward ventured that) this does not comport with the e\·idence as the patient's liver and tiver tUnc:tion tests \\'Cre subsequently [found to be) normal for this patient twho had a history of alcohol abuse)". According to deteodant •s expert. "had there been an actual injwy to the hepatic artery, [plaimi ff s) liver function [* 3] Office of the Richlnond County Clerk - Page 3 of 5 10/21/2015 11:53:04 AM tests would have been signifi.cantly more elevated and there would have been evidence ofischemia to the Ii ver"' (.kj. at 72 ). l.n addition. Dr. Ward opines \\it.bin a reasonable degree of medical certainty mat plaintitrs. ..cholecyst.itjs was appropriately treated. including [the) administration of antibiotics to defervexe the inflammation in order to tacilitate surgery ... [. and that] Dr. Cornell used appropriate judgment in de.cidin1ii to remove Mr. Morton's gallbladder in order to prevent a recurrence. rupture. sepsis or death. [Moreover., he opined that t}here were no alternatives to removal in Mr. Morton's cue0 • Furthermore. in the opinion of defendant's expert. "Dr. Cornell waited for an appropriate amount of time hetore procc.-eding with [the) surgery. and there were no contraindications to pttfonning surgery on December 1. 2009. [In brief.J Dr~ Cornell [was adjudged to have) sufficiently informed Mr. Morton of all the risks. including (the) lack of visualization. {possible) laceration ofa vessel. bleeding and need to convert (to an open·procedure... Hence,} the informed consent obtained by him was sufficient. [In addition. t)he laceration of the aberrant v~I in this case was a recognized risk of the procedure. as well as the attendant bleedins and required conversion.. (k\. at 73). On a motion for summary judgment dismissing the complaint in a medical malpractice act.ion, a derendant has the prima facie burden of e~tahli!!.hing that there was no departure from good and accepted medical practice, or. sfthere was a departure. that the depanure was not the proximate came of the alleged injuries (sett Brinkley,. Narsau Ilea/th Care Carp. _AD3d_, 2014 NY Slip Op 06166 [2• Dept]). Once the defendant has made such a showing. the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut defendant's pri.ma facie showing. so as to demonstmte the ex,istenf..-e of a triable issue of fact. In this regard. "(gjeneral allegmions of medical malpractice, merely oonclusory and unsupported by competent evidence tending lo establish the: essential elements of such a claim, are insufficient" (id.). Rather, in order to defeat the motion. plaintiff must demonstrate the existence ora triable issue of fact and address the specific usertioru made by defendants' expert. including those regarding proximate cause (.id.). .3. [* 4] Office of the Richmond County cierk - Page 4 of 5 10/21/2015 11:53:04 AM Here. plaintiffsubmits in opposition the affirmation ofan unnamed physician board certified in general surgery. Based on this physician's review of the pfeadi.ngs, biUs of particulars. medical records and all of the deposition transcripts, he or she opines within a reasonable degree of medical and surgical certainty that ''defendants deviated from the standard of care when they lacerated Mr. Morton's right hepatic artery ... [;] when they proceeded with Mr. Morton's surgery knt)Wing that the gall bladder and surrounding area was still infected. inflamed. murky and cloudy ... [as it] prevented them from visualizing and identifying the [internal] structures... [; and] ·when they allowed and permitted a resident. (former co-defendant) Dr. Chang, to perform Mr. Morton•s surgery, particularly. in this case, when the attending surgeon, Dr. Cornell. knew that the gall bladder and the surrounding area "'-as still infected..." (see Physician's Af'firmcuion, paras 71-73). Plainti1.I's expert further opines that the treating physicians ''·were not exercising •surgical judgn1ent,' when they decided to convert to an ·open' procedure[. as t]he reason the laparosc-0pic surgery was converted to an •open procedure· was due to the negligence ofthelse same] defendants, when they lacerated Mr. Morton's right hepatic artery. At that point, it was not a matter of' surgical judgment.' it was the only option they had tt) save Mr. Morton's Hie, given the fact that I.hey had lost control of the bleeding once his right hepatic artery was lacerated and he was hemorrhaging on the operating table,, (W. at 75). Plaintiffs expen also opines that Drs. Cornell and/or Chang did not obtain plaind1.I's infunned consent to perform the surgical procedure performed on December 1, 2009 at RUMC, and "that a reasonable person would not have consented to the procedure performed upon Mr. Morton on December I. 2009, bad he been properly infonned of the risks and/or alternatives to having his gaJI bladder removed at that time" ful. at 68· 70), In the case at bar, defendants established their pri:ma facie right to judgment dismissing plaintiff's cause of action for medical malpractice through.~.• the deposition testimony of Dr. Cornell and the expert affirmation of Dr. Ward. \vho opined that plaintiff's treatment was in accordance with good and accepted medical and surgical praclice. However, plaintiffraised a triable issue of fact through the affirmation of his surgical expert, who expressed a nonspeculative or [* 5] Office of the Richmond County cierk - Page 5 of 5 10/21/2015 11:53:04 AM ooncttliOry contnuy opinion {c.j. Sukhraj 1·. New York City Health & Ho:1ps· Carp. I06 AD3d 809, 810 {2""* Dept 201 J]). Summary judgment is inappropriate in a mediad malpractice action where the parties adduee the conflicting opinions of medical experts (.fee Schmitt l'. Medford Kidney Ctr. _AD3d_. 2014 NY Slip Op 07344 {2"" Dept 2014]). Such conflicting opinions raise credibility issues which can only be resolved by a jury (jd.). Accordingly. it is ORDERED that defendants' motion for summary judgment is denied. ENTER. J.S.C. DATED: NOV f 9 2014 -5-
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