Allen v Southampton Hosp.

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Allen v Southampton Hosp. 2016 NY Slip Op 32179(U) September 7, 2016 Supreme Court, Suffolk County Docket Number: 11-38742 Judge: Ralph T. Gazzillo 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] SHORT FORM O RDER con INDEX No. 1 l-38742 CAL. No. 15-00669MM SUPREME COURT- STATE OF NEW YORK I.A.S. PART 6 - SUFFOLK COUNTY PRESENT: Hon. RALPH T. GAZZILLO Acting Justice of the Supreme Court MOTION DATE 9-17-15 (002) MOTION DATE 12-3-15 (003) ADJ. DATE 12-17-15 Mot. Seq. #002 - MG #003 - MotD ---------------------------------------------------------------X ANNEMARIE ALLEN, as administratrix of the Estate ofMATl'HEW MCKINNON, Deceased and ANNEMARIE ALLEN, individually, Plaintiff, - against - SOUTHAMPTON HOSPITAL, SOUTHAMPTON PEDIATRIC ASSOCIATES, P.C., ROBERT GOTTLIEB, ROBERT LEMP, P.A., MITCHELL CAPLIN, and 24/7 EMERGENCY CARE, P.C. Defendants. SILBERSTEIN, AWAD & MIKLOS, P.C. Attorney for Plaintiff 600 Old Country Road, Suite 412 Garden City, New York 11530 BARTLJETI', MCDONOUGH, & MONAGHAN Attorney for Defendant Southampton Hospital 670 Main Street Islip, New York 11751 KERLEY, WALSH, MATERA and CINQUEMANI, P.C. Attorney for Defendants Southampton Pediatric & Dr. Robert Gottlieb 2174 Jackson Avenue Seaford, New York 11783 WAGNER DOMAN & LETO P.C. Attorney for Defendants Robert Lemp and 24/7 227 Mineola Boulevard Mineola, New York 11501 SANTANGELO & SLATTERY Attorney for Defendant Dr. Mitchell Caplin 1800 Northern Boulevard Roslyn, New York 11576 ---------------------------------------------------------------X Upon the following papers numbered I to 33 read on this motion for summary judgment and cross motion to preclude; Notice o f Motion/ Order to Show Cause and supporting papers I - 19 ; Notice of Cross Motion and supporting papers 23 - 27; Answering Affidavits anct supporting papers 20 - 22; 28 - 31 ; Replying Affidavits and supporting papers 32 - 33 Other_; (a11d aftct l1ca1 i11g cotmsel i11 st1ppo1t1111d opposed to the motion) it is, [* 2] /\lien v Southampton 1lospital Index No. 018742-20 11 Page 2 ORDERED thal the motion by defendant Southampton J lospital for an order dismissing all claims and cross daims brought against the defendant Southampton Hospital except for the vicarious liabi I ity l(>r the acts and/or omissions of defendant Robert Lemp. P.J\., and Dr. Mitchell Capl in is.granted; and it is i·urlher ORJ>f.:RED thal the cross motion by plaintiff for, inter alia, an order precluding any dcll!ndant from obtaining the: li mited liability benefits of C PLR Article 16 is denied. Plaintiff /\nnemmic Al len, as administratrix of the estate of her 13-year-old son, Matthew McKinnon. and individually. commenced this action against defendants Southampton I lospital. Southampton Pediatric Associates. P.C .. Dr. Robert Gottlieb, Robert Lemp, P.A .. Dr. Mitchell Caplin, and 2417 Emergency Care. P.C.. to recover damages for medical malpractice, loss of services and society. and wrongl'1.1l death. Tht.: gravamen of plainlilrs complaint against Southampton Hospital is that its staff foiled lo timely and properly diagnose and treat Matthew McKinnon 's nephrotic syndrome and pulmonary embolism. which resulted in his death. Plaintiff further alleges that Southampton 1Iospital ·s misdiagnosis nr Mallhcw McKinnon resulted in its failure to transfer him to Long Island Jewish I Iospital lo receive appropriate care for his condition, and that Southampton Hospital failed to time ly order and interpret Jiagnoslic tests and laboratory results. Defendant Southan1pton l lospi ta! now moves for sumrnmy j udgmcnt d ism issi ng a 11 claims and cross daims against it except for ibos~ asserting liability for the ucts and/or om issions of Robert Lemp, P./\. and Dr. Mitchell Caplin. In support of the motion Southampton I lospital submits, among other things, an expert urlirmation of radiologist Dr . .lames B. Naidich; an expert affirmation and amended affirmation or emergency medicine physician Dr. Timothy G. I laydock: the pleadings; the deposition transcripts or plaintiff. Dr. Robert J. Gottlieb, Robert Lemp, P.A. Dr. Mitchell Caplin, Dr. Joseph Qui1rn, Dr. Barbara .I. ( 'usumano: the medical records; and Southampton Hospital's medical staff policy manual. Defendants Southampton Pediatric Associates, P.C., and Dr. Rohert Gottlieb oppose the motion and submit ;.in aflirmation or counsel in opposition. PlaintiJf stipulates to the partial discontinuance against Southampton I lospital. and cross-moves for an order precluding any defendant frorn obtaining the limited liability bcndits o!" CPLR /\rlic.lc 16. In support of the cross motion plaintiff submits an affirmation of counsel and a partially executed stipulation of discontinuance. Dckndants Robert Lemp. P.J\., Dr. Mitchell Caplin, and 2417 I·:mcrgency Care oppose the cross motion and submit an al'fim1ation or counsel. On January 11. '.20 IL 13-ycar-old Matthew McKinnon was seen by Dr. Barbara J. Cusumano al Southamplnn Pediatric /\ssociales. P.C., and was diagnosed with an upper respiratory infection. On January 14. 2011. he was seen at the emergency room al Southampton Hospital. I [is chief complaint was neck pain and a cough. /\t 5 :40 p.m. triage nurse Kevin Costello recorded Matthew's blood pressure 122/77. heart rate l 00. respiration rate 18, temperature 98.3 and 02Sats 97%. 1Ic was not in acute distress and was taking Fragmin. Prcdnisone and /\ugmentin. J le had allergies to Zithromax and bcnzodiazcpines. I le reported a pain kvel of 7 out of l 0 and constant neck pain. Matthew' s past medical histoty included ncphrotic syndrome. pseudolumor ccrehri and pulmonaty embolisms. Matthew was admitlt!d to the emergency room treatment area and was evaluated by Nurse Sarah Posi 11 ico. She recorded that Matthew appeared in no acute distress but wns in pain and crying. /\t 6: 11 p.111. [* 3] Allen v Southampton Hospital Index No. 018742-2011 Page 1 he saw physician· s assistant Robert Lemp. P.A. Lemp noted that Matthew's pa in was dull and aching and worsened with rotation ol'the head to the right. P.A. Lemp testified at his deposition that he was aware that Matthew had a prior pulmonary cm bolus that was surgically removed. A physical examination of Matthew n~vcalccl muscle spasms oft he neck and soft tissue tenderness, but no lymphadenopathy or meningeal signs. At 6:48 p.m .. P.A. Ll.!mp ordered a comple te blood count (CBC) without d ifferential stat, basic metabolic panel ( bmp) stat.urinalysis stat. liver function test (lft) stat. magnesium stat, phosphorous stat, and influenza 1 & B antigen stat. IV fluids were also ordered. At 7:20 p.m. blood was drawn and urine was collcctc<l. \ /\t 7:40 run. Dr. Mitchell Caplin, an emergency room physician. ordered chest X-rays stat. The X-rays were completed at 7:57 p.m. P.A. Lemp read them and noted "no acute disease.'' Labs were completed by 8:31 p.rn. Urinalysis revealed bacteria and epithelial cells in Matthew's urine. Blood and protein were also present in the urine. Tolal protein. albumin and ALT were low. The blood test revealed an e levated white blood count 18.:i. an elevated red blood count of 6.57 and critically ckvaled hemoglobin at l 8.5. I lcmatm:ril was elevated at 53 .9 and platelets elevated at 527. Kevin Costello recorded that the hemoglobin was called to the emergency room physician and P.A. J ,emp at 8: 12 p.m. or On January 14. 20 I l. at I 0:22 p.m., Dr. Caplin reviewed the X-rays prior to discharging Matthcvv. The P./\. 's nole!'i, co-signed by Dr. Caplin, indicate "fd.liscussed case with patient' s personal physician. (gottlieb). Reviewed test result<>. Agreed upon treatment plan. Physician will sec patient in office:· Dr. Gottlieb tcstilicd that the lab results were not discussed with him. ''We never discussed blood results on the phone." .. Bo b Lemp thought (Matthew's neck pain) was musculoskeletcl in nature. Neck pain rcsolwd ... Dr. Gottlieb advised warm compresses. P.A. Lemp testified that he did not recall the conversation. At 11 :04 p.m. Matthtw was discharged with acetaminophen and instructions to rest for two days until better. to not engage in strenuous activity and to sec Dr. Gottlieb in two days if not better. On January 15, 2011. at 9:47 a.m., radiologist Dr. .Justin Zack interpreted the X-rays and reported no active disease. On January 16. 2011. Matthew died from a 1nassive pulmonary embolism. To rnakc a prinrn facic showing of entitlement to summary judgment in an action to recovercfamagcs ror medical malpractice, a defendant hospital must establish through medical records and competent expert anidavits that it did not deviate or depart from accepted medical practice in the treatment of the plaintiff or that it ww; not the proximate cause plaintiff's injuries (see Castro v New York City l/ealtlt & l/osps. Corp.. 74 /\D'.1d I 005, 903 NYS2d 152 l2d Dept 20 1OJ; Deutsc/1 v Clwglassia11, 71 AD3d 718, 8% NYS2d 43 I I2d Dept 20 I 0 I; Plato v Gu11erat11e, 54 AD3d 741 , 863 NYS2d 726 r2d Dept 20081; Jones v Ricciardelli. 40 A03d 915. 836 NYS2d 879 r2d Dept 2007J; Mendez v City ofNew York. 295 AD2d 487. 744 NYS2d 847 [2d Dept 20021). To satisfy this burden, the defendant must present cxperl opinion testimony that is supported by facts in the record and addresses the essential allegations in the bill or particulars (Sl'l' Roques v Noble. 73 AD3d 204. 899 NYS2d I 93 [1st Dept 2010 I; Ward v Engel. 33 AD3d 790. 822 NYS2d 608 l2d Dept 20061). Conclusory statements that do not address the allegations in the pleadings me insunicicnt to establish en titlement to summary judgment (see Garhowski v llwlwm Val. llmip. Ctr.. 85 AD:)d 724, 924 NYS2cl f2d Dept 20 l l l). A hospital owes a duty reasonable cure to its patients and will gcncral ly be insulated from liability where there is evidence that it conform~xl to the acceptable standard or care and practice ( see Spensieri v Lasky. 94 NY2d 231. 701 NYS2d 689 [ 19991: Barrett v lludso11 Valley Cardiovascular Assoc., P.C., 91 Al.)3d 691, 936 NYS2d 304 I2d Dept 2012 I; or or [* 4] /\llcn v Southumpton 1 lospital Index o. 038742-2011 Page -t Gejf11er '' Nortlt S lrore Uuiv. flosp.. 57 /\D3d 839. 871 NYS2d 617 !2d Dept 2008 I). /\ doctor is not a guarantor of a correct diagnosis or a successful treatment, nor is a doctor liable for a mere error in judgment if he or she has considered the patient's best interest after careful evaluation (see Nestorowich v Ricof/(l , 97 N Y2d '.19'.'. 740 NYS2d 668 f2002l; Oel.r ner v State of New York. 66 NY2d 636. 495 NYS2d 359 I 19851: Bemard ''Block. 176 /\1)2d 843. 575 ' YS2d 506 f2d Dept 1991 ]). Failure to demonstrate a prima focie case requires denia~ of the summary judgment motion. regardless or the surticiency of the opposing papers (see A lvarez v Prospect llosp., 68 NY2d 320. 5088 1 YS2<l 923 I 1986 j). Once the defendant makes a prima faeie showing, the burden shifts to the plaintiff to pro<lw.:e evidentiary proof in admissible form sunicient to establish the existence of triable issues or fac t which require a trial of the action (see A l varez v Prospect llo~p.. suprn; Kelley v Kingsbmok Jewislr M ed. Ctr.. I 00 /\D3<l 600, 953 NYS2d 276 f2d Dept 20121: Fiore11ti110 ,, TEC Holdi11gs, LLC. 78 /\D3d 911 NYS2<l 14612<.I Dept 10101). Specifically, in a medical malpractice action, a plaintiff opposing a motion for summary j udgmcnt need only raise a triable issue of fact with respect w the element of the cause or action or theory or nonliahility that is the subject of the moving patty's prima facie showing (see Blrim ii Do11rmaslrki11 . 123 /\D3<l 862. 999 NYS2d 471 l2d Dept 20 141; Hayden v Gordo11, 91 AD3d 819. 937 NYS2<l 299 j2d Dept 20121: Stukas vStreiter. 83 AD3d 18, 918 NYS2d 176 r2d Ucpt2011 J; Scfliclrma11 1• Yasmer. 74 /\D3d 1316. 904 NYS2d 2 18 f2d Dept 20101). I krc. defendant Southampton I Iospital's expert radiologist, Dr. James Naidich. has established that th~ radiology services rendered to Matthew McKinnon on Jani1ary 14. 20 I I, did not deviate from the accepted standard or care in the field of radiology. Dr. Justin Zack's interpretation of the chest X-ray. formally reported on January! 5, 20 11. with the impression ··no acute disea$e" was correct. Dr. 'aidich opines that there were no findings on the chest X-ray to diagnose or even suggest a diagnosis of pulmonary embolism. The X-rays, according to Dr. Naidich. did not display the Palla sign of prominence ol'thc right descending pulmonary artery orthc Westermark sign of peripheral asymmetric hyperlucency. citherol'which might "uggcst a diagnosis or pulmonary embolism. Dr. aidich explains further that there was no I lampton·s hump sign to suggest a pulmonary infarction and no evidence ofnght heart strain which would suggest pulmonary hype11cnsion. I le concludes the X-rays of Matthew McKin'1on on January 14. 2011 were normal. Dr. Timothy I layclock. defendant Southampton 1lospital's emergency medicine cxpl'rt. opines thut the nurses und staff at Southampton I lospital. excluding the treatment rendered by Dr. Mitchell Caplin uml P./\. Rohcrt l .emp. did not deviate from the standard ofcare in the field of emet gcncy medicine. Based upon the artirmations of'hoth experts. excluding the treatment rendered by Dr. Mit_;hcll Caplin and P.A. Rohert I .emp. Southampton I lospital has establ ished its prima facic entitlement to summary judgment that it did not deviate or depart from accepted medical practice in the treatment of trc plaintiff or that it was the proximate cause orplaintilrs injuries. In opposition. plaintiff provides no expert affidavits and has afford to stipulate to discontinue against Southampton 1!ospital except as to any potential vicarious liability for the acts and/or omissions of' dt:fcndants Rohcrt Lemp and Dr. Mi tchell Caplin. Defendants Southampton Pediatric Associates and Dr. Robert ( iottl ich oppose the motion, contend ing that the expert afftm1ations are conclusory regarding the rnk of the nursing staff at Southampton 1lospital. hut offer no expert artidavits in opposition. Dclcndanls Rohcrt [* 5] /\lien v Southampton Hospital lnc.11.!x 10. 038742-2011 Page 5 l.l.!mp. Dr. Mitchell Caplin. anc.I 2417 Emergency Care do not oppose the motion. but point out the discontinuance against Southampton Hospital is only a pat1ial discontinuance. /\s no party has raised a triahlc issue of fact with respect to the clement of the cause of action or theory nonliability agai11st defendant Southampton I lospitaL the motion is granted. or Plaintiff cross-moves for an order precluding any defendant from obtaining the limited liability bendits of CPLR /\rtick 16 in relation to the acts or omissions of a defend~mt who is granted summary judgment and dismissal or plaintifT's claims against it. CPLR 1601( 1) provides that a defendant may only he held jointly and severally liable for non-economic damages if he or she i-; held more than 50 percent liable. The motion for dismissal by Southampton Tlospital is opposed by defendants Southampton Pediatric /\ssociates. P.C., and Dr. Robert Gottlieb. Since a motion fo r summary judgment is the equivalent ora trial. the limited liahility benefits for def'cndants under /\rticle 16 arc forfeited as to any codefcndanl who was awar<lc<l summary judgment in its favor (see Drooker v Soutlt N assau Comm 1111i~y Hosp. , 175 Misc2d 181. (>(><) NYS2d 1691 Sup Ct Nassau County 1998]). Defendants Southampton Pediatric Associates. P.C.. and Dr. Rohen C 1l)ltlieb submit no affidavit or affirmation of' any expert in opposition to the Hospital's motion. I lowcvcr. Southampton I lospi tal has only moved for partial summary judgment. excluding the acts anc.1/or omissions Robert l.emp and Dr. Mitchell Caplin. Southampton Hospital remains a defendant in the case. and therefore. the remaining de fondants stand in the same position as they did prior to the granting or partial summary judgment anc.l thcy remain defendants in the case whose liability, if any, is yet to be dctcrminc.:d. The cross motion must be denied as no defendant has fo rfeited, at this point. any rights they may have under /\rticle 16 because Soulhampton Hospital continues as a defondant. fssues regarding the timeliness of the: cross motion and the sulfo.:icncy or Dr. Haydock· s expert affirmation have been resolved by the so-ordered stipulation or the parties adjourning the motion until December 17, 2015. and by Dr. I layclud, 's supplemental aflirmation. which ccmccted the typographical error. According~. the cross motion is denil.!<l. or J lj Datt..:d: ··--' . ~--IL-. , I I FI NAL DI SPOSITI ON l ~__ X NO N-FINAL ~ -:.--.f-A.J-.S-.C. O I S l~S ITI ON

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