Torres v NYU Hosp. Ctr.

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Torres v NYU Hosp. Ctr. 2016 NY Slip Op 31892(U) October 5, 2016 Supreme Court, New York County Docket Number: 805119/2013 Judge: Joan B. Lobis 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] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY: IAS PART 6 iI -------------------------------------------------------------------------)( JUSTINA TORRES, Plaintiff, Index No. 805119/2013 -againstDecision and Order NYU HOSPITAL CENTER, TISCH HOSPITAL, NYU LANGONE MEDICAL CENTER, K. CHABOS, R.N., S. ISABELLA, R.N., and John Doe "1" to Jane Doe "3," the unidentified radiologist, technicians, and/or physicians supervising the procedure, i I Defendants. -------------------------------------------------------------------------)( In this medical malpractice action, plaintiff alleges that defendants improperly used an iodine-based contrast dye during her cardiac catheterization although she warned them of a prior allergic reaction to the dye. As a result of this negligence, she alleges, she suffered a severe burn ,, and accompanying rash, resulting in damage to her ~kin, continued pain, and limitations in her motion in the affected areas. She has sued NYU Hospital Center, Tisch Hospital, NYU Langone Medical Center (collectively, "the NYU defendants"), K. Chabos, R.N., and S. Isabella, R.N., along with the unnamed radiologist, technicians, Jnd physicians involved in the procedure. Currently, the Court consolidates the two motions before it for disposition. In rriotion sequence number two, the NYU defendants seek summary judgment dismissing the case against them on I! the grounds that Dr. Claudia Serrano-Gomez, who performed the procedure, is not their employee 1 2 of 9 [* 2] and therefore they are not vicariously liable for her actions and that, even if vicarious liability existed, there is no merit to plaintiff's claims. Plaintiff opposes the motion and, in motion sequence ,, number three, seeks to toll the statute of limitations under the relation-back doctrine, allow her to amend the complaint and caption so as to replace "John Doe '10 to Jane Doe '3"' with "Dr. Ii Serrano-Gomez" as a named defendant, and deem the amendment timely. For the reasons below, the Court denies motion sequence two and grants motion sequence number three in part, allowing the amendment but not ruling on the relation back or timeliness issues. Initially, the Court grants motion sequence number three to the extent of allowing I plaintiff to amend the complaint to remove the John and Jane Doe defendants from the caption and add Dr. Serrano-Gomez as a defendant. Plaintiff's expert affirmation is sufficient to show a meritorious claim for the purposes of this motion. Defendants' challenges based on the statute of :1 limitations are of no avail, as that is a waivable defense and must be asserted by Dr. SerranoGomez rather than the current parties. For this reason, also, the Court shall not rule on the issue of " timeliness or the applicability of the relation-back doctrine, as Dr. Serrano-Gomez has the right to assert and litigate these issues. " ' I,i Now, the Court turns to motion sequence number two, for summary judgment. Plaintiff first presented to Dr. Serrano-Gomez at her private office on July 9, 2011, complaining that she had suffered from substernal chest pain for the two months following her bout with bronchitis, and that she suffered from dizzy spells; shortness of breath, and other problems. Plaintiff had numerous health problems in addition to this most recent one and was a long time Ii heavy smoker. The doctor noted her prior allergic reaction to a particular contrast dye. In addition, 2 3 of 9 [* 3] she scheduled a catheterization for July 11, 2011, and':she explained the English-language consent 11 · I form to plaintiff, a Spanish speaker, in Spanish. The rorm included a warning about the use of a i 1 dye and the potential for an adverse reaction. 1 ! I II On July 11, 2011, plaintiff entered N~ Hospital for the procedure. According to ~ . plaintiff, prior to the procedure she repeatedly warneo defendants and Dr. Serrano-Gomez about ~ her allergy to contrast dye. The chart indicates that plaintiff received Benadryl and other 11 ii medications before the dye was injected in order to pi~vent any allergic reaction by plaintiff. She purportedly went through the procedure without incidJnt and she was released that evening. A few ~ days later, at her July 14 follow-up examination with pr. Serrano-Gomez, plaintiff complained of ~ ~ various problems including blisters and edema. Dr. ~errano-Gomez discovered large blisters on plaintiffs skin as well as edema and erythema in thelskin folds, and she noted that plaintiff had experienced a delayed allergic reaction to the contrastl1dye and to Norvasc. ' I In support of their motion for summary)udgment defendants submit the affirmation 1i of Dr. Shepard Weiner, M.D. Dr. Weiner asserts that id signing the consent form plaintiff expressly II !I consented to the use of contrast dye and that Dr. Serrano-Gomez explained the form to plaintiff in Spanish although the writing was in English. He aJerts that Dr. Serrano-Gomez appropriately ~ noted the allergy and took proper precautions by administering Benadryl and other medications. ~ Although generally these medications are administered earlier and in conjunction with steroids, he 11 states, in this instance steroids were contraindicated dhe to plaintiffs diabetes. In support of their !I claim that no vicarious liability lies for the acts of Drl Serrano-Gomez because she was not their - !I employee, defendants point to the errata sheet to her deposition, which states that, for clarification, I 3 4 of 9 I [* 4] her statement that she worked for New York Universiry Medical Center should read "New York School of Medicine." In addition, they note that at her <ileposition the doctor indicated that she first I) treated plaintiff at her private office as the result of a rlferral. Plaintiff counters with the affirmationilof Dr. Alexandre Scheer, who states that defendants and Dr. Serrano-Gomez should have injedted the medications used as prophylactics ~ . twelve to twenty-four hours prior to the surgery instead of one hour beforehand and, contrary to ~ Dr. Weiner's statement, they should have been used in ~onjunction with steroids. Further, he states, ~ defendants should have kept plaintiff at the hospital longer than two-and-a-half hours after the I ·I surgery, in order to watch for a delayed allergic reactioh. In addition to the above, he contends that • plaintiff should have received prophylactics at the tim! of her discharge. The failure to take these ~ measures, he states, proximately caused plaintiffs injuries. Finally, as to informed consent, he ,, ~ points to ambiguities in the consent form that plaintiff signed, and stresses that given plaintiffs ~ terror of contrast dye she would not have consented to its use had she understood the form. Plaintiff ~ also argues that, based on her statements at deposition:regarding her repeated objection to the use ~ of contrast dye, there is an issue of fact with respect to ifformed consent. Moreover, plaintiff points out the problems with the form that Dr. Scheer has· noted in his affirmation. In addition, she I contends that Dr. Serrano-Gomez is an employee of defendants, and in support points to the i doctor's original statement at deposition she later corrected, that she was an employee at the I) ; hospital. Plaintiff argues that the consent form states tnat an employee of defendants translated the ~ consent form, and that Dr. Serrano-Gomez herself translated the form for plaintiff. She cites to . ~ NYU Langone's website, which lists Dr. Serrano-Gomez as a doctor. 4 5 of 9 [* 5] 11 In reply, defendants challenge the cr~dentials of plaintiffs expert, Dr. Scheer, I stating that his licensed currently is suspended. Theyl reiterate their earlier arguments regarding ,, their and Dr. Serrano-Gomez' adherence to the stanq,ard of care and lack of vicarious liability. ~ 'I They point out that Dr. Serrano-Gomez is listed on the School of Medicine's website as an assistant ~ II professor and state this proves the fallacy of plaintiffs argument regarding the doctor's status. ~ . Plaintiff was allowed to submit a sur-reply regarding th'e alleged suspension of Dr. Sheer's medical ~ license. As for Dr. Scheer's medical license, she notes that its suspension was immediately stayed, ,! and that pursuant to a settlement which resolved the investigation Dr. Sheer is on probation during this period and still is licensed to practice medicine. To prevail on summary judgment in a riiedical malpractice case, a defendant must ~ show that he or she did not depart from accepted starldards of practice or that, even if he or she 11 did, the departure did not proximately cause the patien~'s injury. Roques v. Noble, 73 A.D.3d 204, 206 (1st Dep't 2010). The movant must provide an Jpert opinion that is detailed, specific and ~ factual in nature.11&, Joyner-Pack v. Sykes, 54 A.D.Bd 727, 729 (2d Dep't 2008). The defense ~ expert's opinion should state "in what way" a patieAt's treatment was proper and explain the 11 standard of care. Ocasio-Gary v. Lawrence Hosp., 69 l.D.3d 403, 404 (1st Dep't 2010). Further, it must "explain 'what defendant did and why."' Id. (Juoting Wasserman v. Carella, 307 A.D.2d II 225, 226 (1st Dep't 2003)). If the defe_ndant 6 makes~a prima facie showing, the plaintiff must "produce evidentiary proof in admissible form suffidient to establish the existence of material ~ issues of fact .... " Alvarez v. Prospect Hosp., 68 N.Y.Qd 320, 324 (1986). To meet that burden, a II II plaintiff must submit an expert affidavit attesting tl;ie defendant departed from the accepted II I- standard of care and this proximately caused the injuries. See Rogues, 73 AD.3d at 207. Summary 5 I I ! 6 of 9 [* 6] i ~ II . ~ . judgment is improper where conflicting expert opiniofils exist. Elmes v. Yelon, 140 A.D.3d 1009, -- (2nd Dep't 2016). Instead, the conflicts must be resllved by the factfinder. See id. Plaintiff has shown that pursuant to ani1agreement with the Office of Professional Misconduct and Professional Discipline, Dr. Scheer is lot suspended from the practice of medicine !i at this time. Instead, the suspension is stayed subject td certain conditions. The disciplinary action does not render his affirmation totally unworthy of bjlief but it may be a factor in assessing the II weight given to his statements. Because the conflictitlg expert affidavits raise issues of fact, the Court denies the motion for summary judgment. In !articular, the experts dispute whether Dr. Serrano-Gomez should have injected the prophylacti, medicines earlier and whether she should have injected the medicines in conjunction with ste:ioids. As for informed consent, plaintiff's signature on the informed consent document is not di!positive. See Wilson-Toby v. Bushkin, 72 I A.D.3d 810, 811 (2nd Dep't 2010). In light of plaintiffs statements indicating that she continued ~ . II to tell defendants not to use dye after she signed the informed consent form, there is an issue as to ' whether she understood the import of the document. !I Finally, the Court denies defendants' application for dismissal based on lack of II vicarious liability. Defendants are correct that they are not vicariously liable for the acts of a doctor ~ an attending physician who has no other relationshiplwith NYU and that Dr. Serrano-Gomez's i status at the NYU Medical School is insufficient to establish liability. In the context of the record, ~ those factors alone are not sufficient to support dismiss~l of the claim. 1 In light of the lack of direct II 11 ii Instead, they rely on the correction on the errata shee~ by Dr. Serrano-Gomez - which incorrectly states that she works at the "New York ScHool of Medicine" - and the fact that plaintiff first visited Dr. Serrano-Gomez at her private :office. 1 I 6 7 of 9 ' [* 7] evidence as to the doctor's status, plaintiffs evidenc~!- in particular, the note in the records that 1 an "employee" of the hospital explained informed con~ ent to plaintiff in Spanish and the admission that Dr. Serrano-Gomez was the "employee" -creates an issue of fact as to apparent or actual agency giving rise to vicarious liability. Accordingly, it is ORDERED that motion sequence number two is denied; and it is further ,1 ORDERED that motion sequence number three is granted to the extent of granting leave to amend the summons and complaint, adding Dr. Serrano-Gomez as a defendant and removing "John Doe '10 to Jane Doe '3"' from the caption; and it is further 11 ORDERED that the proposed supplemental summons and amended complaint, number 104 on the NYSCEF list for this case, is deemed served on the existing defendants; and it ~ is further ORDERED that within plaintiff shall serve the newly-added defendant by personal I! service in accordance with rules set forth in the CPLR; and it is further ORDERED that the caption shall be amended to read as follows, and the Trial and :i Motion Support Clerks shall amend the caption accordingly: 7 8 of 9 [* 8] SUPREME COURT OF THE STATE OF NEW YORK NEWYORKCOUNTY: IASPART6 , -----------------------------------------------------------------~-------)( JUSTINA TORRES, Plaintiff, Index No. 805119/2013 -against- I; NYU HOSPITAL CENTER, TISCH HOSPITAL, II NYU LANGONE MEDICAL CENTER, K. CHABOS, R.N., S. ISABELLA, R.N., and DR. SERRANO-GOMEZ, Defendants. -------------------------------------------------------------------------)( All further papers shall use the amended caption. Dated: Oif. .!;"" , 2016 ~ ENTER: ~ JOAN B. LOBIS, J.S.C. 8 9 of 9

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