Barrera v Stewart

[*1] Barrera v Stewart 2015 NY Slip Op 51140(U) Decided on July 23, 2015 Supreme Court, New York County Schlesinger, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 23, 2015
Supreme Court, New York County

Cynthia C. Barrera AND LISANDRO PEREZ, Plaintiffs,

against

Allan S. Stewart, M.D., MONA FLORES, M.D., BENJAMIN ZALTA, M.D., CHRISTINA HILL, M.D., THE NEW YORK PRESBYTERIAN HOSPITAL and MEDTRONIC, INC., Defendants.



117464/09



Atty for Defendants

Frank Schiralli, Jr., Esq.

Bartlett, McDonough & Monaghan, LLP

170 Old Country Road

Mineola, NY 11501

516-877-2900

Atty for Plaintiffs

Jonathan C. Reiter, Esq.

350 Fifth Avenue, Ste. 2811

New York, NY 10118

212-736-0979

Atty for Defendant - Allan Stewart

McAloon & Friedman, P.C.

123 William Street, 25th fl.

New York, NY 10038-3804

212-732-8700
Alice Schlesinger, J.

On January 10, 2008, Cynthia Barrera underwent a thoracotomy to close an atrial septal defect, (a hole between the two upper chambers of her heart). The surgeon who performed the actual repair was Dr. Allan Stewart. He was aided by a junior surgeon, a resident in training in cardiothoracic surgery, Dr. Mona Flores. In fact, it was Dr. Flores who did all the preliminary incisions to reach the heart and to prepare the patient to be placed on bypass. Dr. Stewart, was not in the operating room until all of the following was accomplished: making three incisions below Ms. Barrera's right nipple, two of which were for drains; opening the pericardium to create a pericardial cavity; and placing a retractor and inserting a suction catheter to drain the blood surrounding the heart from the surgical field. Dr. Stewart then stopped the heart, put his patient on bypass and closed the defect with a double layer of prolene sutures. He then separated Ms. Barrera from bypass and left the operating room, though he remained in the hospital. Dr. Flores then removed the drains and catheters and closed the patient. Seemingly, all had gone well.

However, on May 9, 2008, four months after her heart surgery, Ms. Barrera went to the Emergency Room of Methodist Hospital with complaints of pain in her chest. Plain x-rays were taken and revealed a 6mm metallic density "along the right heart border seen about the pulmonary artery." The x-ray report concluded, "this likely represents an aspirated foreign body within the right lower lobe bronchus."

Five days later, on May 14, 2008, Ms. Barrera returned to Dr. Stewart, who ordered a CT Scan of her chest. This also showed an object within the pericardium. It was interpreted as a 6mm round metallic object adjacent to and anterior to the junction of the right inferior pulmonary vein and left atrium. No such object was seen on a CT of Ms. Barrera's chest taken about a year and a half earlier, on September 15, 2006.

After an investigation by Dr. Stewart and New York Presbyterian Hospital ("Presbyterian") it was determined that this very small metal object was the front section of the catheter used during the surgery. It was a kind of metallic ball at the tip of the suction catheter, a sump also known as a floppy sucker. It would act to weigh the catheter down and in place while draining the blood during the surgery. This part of the catheter was certainly meant to be removed when the surgery ended. In fact, the entire catheter was meant to be entirely removed. However, only most of it was. In other words, the much larger part, a tube, was removed and it was discarded. But the tip was left behind embedding itself in Ms. Barrera's chest. It remains there to this day.

A lawsuit reciting these events was commenced in 2009. It named as defendants, Dr. Stewart, Dr. Flores, two radiologists, Dr. Zalto and Dr. Hill, Presbyterian and Metronic, Inc., the corporation that manufactured the catheter that was used in the surgery which obviously broke, leaving the small tip.[FN1]

Before this Court now are motions by all the defendants. They are asking for summary judgment. Two of those motions, by Doctors Zalta and Hill are not opposed. But the ones by Doctors Stewart and Flores, and Presbyterian very definitely are.

The decision to follow, resolves, in large part the query, do these undisputed facts demonstrate a sufficient evidentiary basis for invoking the doctrine of Res Ipsa Loquitur? I believe they do. If I am correct, that means that the ultimate fact finders would be instructed as to a permissible inference of negligence against certain defendants (determined by the second element of this doctrine) and further, that the plaintiff in opposing these motions did not have to submit an expert affidavit/affirmation to successfully do that (Kambat v. St. Francis, 89 NY2d 489 (1997)), but may if desired (States v. Lourdes-Hospital) 100 NY2d 208 (2003).

This discussion begins with a recital of the three elements which are necessary to invoke this doctrine. First, the event must be of a kind that ordinarily does not occur in the absence of someone's negligence. Second, it must be caused by an agency or instrumentality within the exclusive control of the defendant. Third and last, it must not have been due to any voluntary action or contribution on the part of the plaintiff. (James v. Wormuth, 21 NY3d 540 (2013), quoting from Kambat, supra.

The only criterion which is unchallenged here is the final element, the contribution of the plaintiff. Clearly there was no such contribution as Ms. Barrera was under anesthesia while the surgery took place, wherein her heart was stopped and Dr. Stewart repaired the hole in it.

But as to the other factors, there is a sharp dispute. Counsel for Dr. Stewart, for example, states as a heading in her Reply under "Point III" that "Res Ipsa Does Not Apply In This Case." She argues, citing to the James v. Wormuth (supra) decision, that here the proof is uncertain as to when and how the tip became dislodged and as to those people in the operating room, whether any "had any control, let alone exclusive control over the catheter which remained in place for a portion of the surgery with no one in a position to control it" (p.8 in Stewart Reply)

Also, counsel argues that this is a situation where an expert affidavit is required to invoke the doctrine to explain how the tip came off and cites States v. Lourdes Hosp., 100 NY2d 208 (2003) for the argument.

However, both of these Court of Appeals decisions are easily distinguished. In Lourdes, the question was, after Kambat, could a plaintiff call an expert in aid of her case. In Kambat, the Court said it was not necessary. But in Lourdes, the answer was "yes", as the purpose of the expert opinion was "to educate the jury, enlarging its understanding of the fact issues it must decide." (p.213)

In Lourdes, the patient/plaintiff woke up from a surgery to remove an ovarian cyst, complaining of increasing pain in her right arm and shoulder. She had earlier complained of pain and a burning sensation when an IV tube had been inserted in her right hand. After the surgery, due to continuing pain in her right arm and hand, Ms. States was diagnosed with right thoracic outlet syndrome and reflex sympathetic dystrophy. She brought suit solely against the anesthesiologist and the hospital. She claimed that the anesthesiologist was negligent in the manner in which he positioned her right arm during surgery.

The Court said first that this was in fact a Res Ipsa case. But despite this designation, the plaintiff still should be able to call an expert, whose testimony "may be properly used to help the jury bridge the gap' between its own common knowledge, which does not encompass the specialized knowledge and experience necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence, and the common knowledge of physicians" (p.212). The medical expert's testimony which the plaintiff wanted to present to the jury was to the effect that her injuries would not have occurred in the absence of negligence in placing the arm. The Court said while expert testimony is commonly not needed in a Res Ipsa case, it can be used to "bridge the gap", as referred to above.

Here, no one knows how the tip became dislodged from the catheter. It simply did and importantly was left behind. Therefore, counsel for the plaintiff argues the catheter part remaining in the chest was an unintended event which arguably would not have occurred if one of the doctors or nurses attending to Ms. Barrera had properly inspected the catheter either before using it, perhaps to detect that the two parts were loose or after the tube was removed from her chest, to see if it was still intact, in one piece, including its metal tip, before discarding it. No expert at this stage of the proceedings is necessary because no one disputes that the entire catheter should have been removed.

Moving counsel also makes the argument that if Dr. Stewart's motion is denied, plaintiff should not be able, at the time of trial, to call an expert. Since this first appeared in Reply, counsel for the plaintiff did not respond. Therefore the Court and perhaps even counsel for Ms. Barrera has no idea of what the plaintiff intends to do later on. However, I will not preclude counsel from calling an expert to explain or bridge some discernible gap. The burdens are very different in a motion such as this one and later at a trial. Here, it is incumbent on the moving defendants, who are seeking dispositive relief, to present experts and/or other evidence to prove, in the first instance, why there was no negligence and why the action should be dismissed. They did produce such testimony, though as explored later, it was not relevant to these circumstances. After the defendants have moved forward, the plaintiff is obliged to oppose. Counsel for plaintiff chose to do that by arguing that first, the moving papers were insufficient in a Res Ipsa case such as this and second, that this action is one that can in fact rely on that doctrine.

The burden of proof is on the defendants. When a defendant successfully lays out a prima facie case, the burden shifts to the plaintiff to show the existence of factual issues sufficient to defeat the motion. Sometimes, plaintiff does this with the aid of expert testimony or not, as in this case. However, at a trial, it is the plaintiff's burden all the way through. That burden never shifts or changes. It exists from the Opening Statements to the Closings. Therefore, since the plaintiff must convince a jury as to the merits of her case, if plaintiff's counsel feels testimony from an expert is necessary to convince the jury, and carry the burden, I find he has a right to do this. As in Lourdes, and Kambat, supra he does not have to do that, but he can. Of course, proper expert notice would have to be timely served.

As to the second element, the control issue, Dr. Stewart's attorney argues that he had no such control over the tip of the catheter when he was in the operating room. In aid of counsel's position, she cites to James v. Wormuth (supra). However, though the Court there does deal with the element of control in dicta, the facts of that case are sufficiently [*2]different so as not to be relevant to this action. James was a case where a guide wire being used by Dr. Wormuth during a breast biopsy, became dislodged. The doctor tried to retrieve it but then exercised his judgment and decided it was best, after trying for about 20 minutes, to leave it rather than continue the search and cause injury.

The Court found that Res Ipsa did not apply because of the intentional nature of leaving the wire. The issue there was one involving defendant's professional judgment in leaving the wire. Therefore, plaintiff was compelled to call an expert to present evidence that the manner in which the defendant exercised such judgment was not in accord with proper standards of practice.

On the second element, control, the Court also found that plaintiff had failed to show exclusive control by Dr. Wormuth since there was testimony that other medical personnel were involved in inserting the wire and transporting the plaintiff all before the doctor's discovery that the wire had dislodged. Therefore, there was a real question as to whether Dr. Wormuth had exclusive control over it. The Court said, citing to Dermatossian v. New York City Tr. Auth, 67 NY2d 219 (1986), "Although the control requirement does not mean that the possibility of other causes must be altogether eliminated,... the likelihood must be so reduced that the greater probability lies at defendant's door." (548)

The issue of control here is an interesting one. Attorneys for both doctors and the hospital tell the Court they are not claiming that the other defendant is negligent. However, to prove their own entitlement to a dismissal, each of the moving defendants submits an affirmation from a physician. For Dr. Stewart's there is an affirmation from Dr. Darryl Hoffman, a well credentialed cardiothoracic surgeon. For Dr. Flores, there is an affidavit from Dr. Daniel Schwartz, also a board certified, well credentialed thoracic surgeon.Dr. Hoffman states, with a reasonable degree of medical certainty, that there is no medical basis whatsoever for any allegations of malpractice relative to Dr. Stewart. He then discusses the custom and practice of attending surgeons not being present during all parts of a surgery. He points out that here, Dr. Stewart had no responsibility to be in the operating room when this suction catheter was placed and therefore had no opportunity to inspect the device prior to its insertion. Also, he continues while it was likewise appropriate for Dr. Stewart to leave after he repaired the hole, particularly as a "senior trainee" was present, although he remained in the hospital, he again was not in a position to remove the catheter and inspect it.

Dr. Schwartz, also a board certified thoracic surgeon licensed to practice in New York, first discusses how the sucker was inserted in a separate incision into the chest. He then describes how both doctors used the catheter to evacuate blood from the operative field so as to obtain direct vision of that field. He then relates that the tip, the one left in the plaintiff's chest, is an integral part of the sump and is not intended to separate from the device. Of course here no one suggests that it was.

He concludes his extremely general statement by saying that no one at the hospital was negligent including Dr. Flores, in her placement, employment or removal of the sump. He does not discuss any responsibility that either she or the hospital had to inspect this device.

Neither Thoracic Surgeon addresses the first element of the Res Ipsa doctrine. So neither opines that leaving this tip behind is an event that could happen without negligence. I am not suggesting that the breaking off of the tip was negligent conduct by the doctors. [*3]Nor is counsel for the plaintiff. Rather, it is the failure to inspect the catheter, both when it was inserted and removed to see if it was intact that constitutes the claim and no one on behalf of the defendants addresses that.

But an expert on behalf of the plaintiff does. This is a nurse, Mindy S. Langweil, who is a well credentialed registered, surgical nurse. She discusses the standard of care existing with regard to the surgical team. Presumably she is talking about the nursing part of that team which is to inspect devices both before they are used and immediately upon removal for any signs of breakage or fragmentation and if there is breakage, helping to evaluate the risks of retrieval.

In Presbyterian's and Flores Reply, Dr. Flores herself provides an affidavit. It is, she says, for the purpose of clarifying certain statements made by other parties and counsel. What she really wants to clarify is her subordinate role in this surgery. In this regard, she points out that while she was a certified general surgeon, she was still a resident in training in thoracic surgery. She then points out that Dr. Stewart was the attending surgeon here and she was merely assisting him. This means that she was always under the "personal supervision" of Dr. Stewart, be it "visual supervision" when he was present or "direct supervision" when he is not (¶3, p.2).

Finally, in bold print, twice, she emphasizes that she "exercise(d) no medical judgment in how the surgical procedure was to be performed" (¶4, p.2).

Discussion

The motions by Stewart, Flores and Presbyterian are denied. This is very definitely a Res Ipsa Loquitur situation. The catheter was an instrument that was meant to be removed. And part of it was. Unintentionally leaving an object in a patient's body after surgery is classically an event that is not supposed to occur. When it did happen, Ms. Barrera was under anesthesia. Were all the defendants in control of the surgery and its aftermath? I suggest the answer at this stage of the proceedings must be yes, as it pertains to the inspection of the catheter.

As to the first element, there are many cases which hold, under similar facts as these, that the doctrine is available. In Gravitt v. Newman, 114 AD2d 1000 (2nd Dep't 1985) a tip of an internal vein stripper was not removed before the surgery was completed. Res Ipsa was implicated. In Critelli v. Long Island Jewish Hillside Med. Ctr, 115 AD2d 632 (2nd Dep't 1985), a laparotomy pod was left behind. The doctrine was allowed without an affidavit from an expert on behalf of the plaintiff. In Dolawy v. Urology Assoc. of Northeastern NY P.C., 72 AD3d 1238 (3rd Dep't 2010), two broken pieces of guide wire sheathing were left in the patients ureter and Res Ipsa was invoked.

As between the two parties as noted earlier, neither actually points the finger at the other, at least not explicitly. Dr. Stewart's position is he was not in the operating room when the catheter was inserted or removed. His expert opines that it was customary and proper for him to have left, while remaining in the hospital.

Dr. Flores insists she was simply following orders by Dr. Stewart who was the one always in charge. Her counsel cites to Filippone, et al. v. St. Vincent's Hospital and Med'l Ctr of NY, 253 AD2d 616 (1st Dep't 1998) for the proposition that a resident performing routine tasks under a private surgeon's direct supervision has no liability unless the resident so greatly departs from normal practice. That certainly is the rule in most cases.

In Walter v. Betancourt, 283 AD2d 223 (1st Dep't 2001), that same principle is applied. This case concerned a resident helping an obstetrician deliver a baby. But it was clear that the resident was following the instructions of the private attending physician and was always under her supervision.

The issue in these cases is whether the resident doctor exercised any independent judgment in the acts that she performed. Litaker v. St. Luke's Roosevelt, 3 Misc 3d 1107(A), 2004 is one such case. There, then-Supreme Court Justice Abdus-Salaam distinguished Filippone (supra) and Walter v. Betancourt (supra) and found that under the circumstances in Litaker, the resident was arguably exercising independent judgment. How? The resident took the plaintiff's history, examined her in the emergency room, prescribed medication, ordered tests and monitored plaintiff prior to discharge. Therefore, while the resident was under the general supervision of an attending, he, the resident, was responsible for the plaintiff's treatment in the manner in which he exercised medical judgment.

Here, like Litaker (supra) it can be argued that Dr. Flores did exercise medical judgment in her actions in inserting and removing this catheter, all while she was the only doctor in the operating room. Her deposition testimony indicates that she did not inspect the catheter at any time. Therefore, to the extent judgment was exercised, an argument could be made that such non-inspection was an exercise of her judgment.

As for Presbyterian, pursuant to the affidavit of Nurse Langweil, the contents of which is not disputed, the surgical nurses had the responsibility to inspect all instruments both before and after the surgery. Therefore, the Hospital remains as a defendant as it is responsible for both the nurses and the resident, Dr. Flores.

Finally, we reach Dr. Stewart, Ms. Barrera's private attending surgeon. He was the doctor in charge, whether he was in the room or not. While it was acceptable for him not to enter the operating room until his patient was ready to be placed on a heart machine, after incisions had been made and catheters and drains placed and while it was acceptable to leave the operating room once he repaired her heart, he chose to do those things. However, by doing them he did not abdicate his responsibility for either the success of the surgery or problems that may have occurred. On this note, it is, in large part, Dr. Flores's own affidavit in Reply which raises a triable issue of fact as to Dr. Stewart.

Therefore, as stated earlier, the motions by Stewart, Flores and Presbyterian are all denied and plaintiff may continue to rely on the Res Ipsa Loquitur doctrine. The motions by Zalta and Hill are granted as unopposed.

Dated: July 23, 2015

___________________________

J.S.C. Footnotes

Footnote 1:This Court granted a motion to dismiss the action against Metronic on Statute of Limitations grounds on January 25, 2013.