Whalen v Sung Whang

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Whalen v Sung Whang 2017 NY Slip Op 31064(U) May 11, 2017 Supreme Court, Suffolk County Docket Number: 12-34969 Judge: Jerry Garguilo 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] SI !ORT FORM ORDER COPY INDEX No. 12-34969 CAL. No. l 6-0100 IMM SUPREME COURT- STATE OF NEW YORK l.A.S. PART 4 7 - SUFFOLK COUNTY PRESENT: Hon. JERRY GARGUILO Justice of the Supreme Court MOTION DATE 11-23-16 ADJ. DATE l-18-17 Mot. Seq. # 003 - MG -----------------~-------------------------------------------)( RICHARD WHALEN, SILBERSTEIN, AWAD & MIKLOS, P.C. Attorney for Plaintiff 600 Old Country Road Garden City, New York 11530 Plaintiff, LAW OFFICES OF S/\NTANGELO, BENENUTO & SLATTERY - against - SUNG WHANG, BETI l A. HAYES. MUHAMMAD II. NOOR, SANDIIAYA M. SINGH, SCOTT R. CAPUSTIN, SCOTT R. CAPUSTJN. M.D., P.L.L.C., DAVIDE. RlV ADEN EI RA AND ST. CATHERINE OF SIENNA MEDICAL CENTER, Attorney for Defendant Hayes 1800 Northern Blvd. Roslyn, New York 11576 BARTLETT, McDONOUGH & MONAGHAN Attorney for Defendants Whang, Noor, Singh, Rivadeneira and St. Catherine of Siena Medical Center 320 Carleton A venue Central Islip, New York 11722 Defendants. ---------------------------------------------------------------)( Upon lhe following papers numbered l to~ read on Lhis motion for summary judgmenl; Notice of Motion/ Order to Show Cause and supporting papers I - 17 : mice of Cross Motion and supponing papers _ ; Ans~er i ng Affidavits and supponing papers 18 - 22 ; Replying Allidavits ;;ind supporting papers 23 - 24 ; Other _; (1111d 1 1fte1 hea:1 irig cou11sel i11 !Stlppott 1111d opposed to tlic r11otion) it is, ORDERED that the motion for summary judgment ( 1) dism issing the complaint as against defendants Muhammad H. oor. M.D., Sandhaya M. Singh, M.D., and David E. Ri vadeneira, M.D.,and (2) dismissing the second cause ofaction as against defendants St. Catherine of Siena Medical Center and ung Whang, M.D. , is granted. Plain ti ff Richard Whelan commenced this action to recover for personal injuries related to the alleged medicaJ malpractice in a delayed diagnosis ofappendicitis, Jacko fin formed consent, improper and untimely [* 2] Whalen v Whang lndc:x No. I2-034%t) Page~ surgery. an<l thc development or pressure Sl)n;s. Issue has bt:cn joined. discovery is cnmplctc, and a note or issue has bt'cn llled. The adion against Beth/\. I !ayes. M.D .. Scott R. Capustin. and Scott R. Capustin, \11.D .. P.1.. 1..C.. has been discontinued. Defendants Muhammad 11. Noor, M.D .. David E. Rivadeneira. M.D .. and Sandhaya M. Singh. M.D.. now move for summary j udgment dism iss ing the complaint and all cross claims asserted against them. Defendants Sung Whang. M.D., and St. Catherine of Siena Medical Center move for summary judgment in their favor on the second cause or action alleging lack of informed consent In support of the motion. defendants submit, among other things. a copy of the pleadings: an expert artida\-it of'William Miller. D.O.~ the deposition trnnscripts of plaintifI Dr. Whang. Dr. I l;1ycs. Dr. Noor. Dr. Singh, Dr. Capustin. Dr. Rivadeneira. and Crystal Piatnick; and plaintiff"s medical records. Plaintiff offers no opposi tion to the application for summary judgment dismissing the first cause or action against Dr. Singh. and Dr. Rivadeneira. M.D .. and "'·ith<lraws his second cause of action alleging lack of infom1cd consent. Plaintiff: however, ~>pposes dismissal against Dr. Muhammad Noor on the first cause of action and submits, among other th ings, an expert physician's af!idavit. Plaintiff Lesti tied that he was experiencing "flu-like symptoms., and three or four people at his work had the nu. I le tcstilied he had pain on Friday that was appro:ximatcly 4 inches to the right of his navel that lasted for ha! ran hour and tbcn went away. On Saturday he spent the duy in bed. I Jc testi ficd that he felt nauseous but did not \'omit. and did not recall experiencing abdomi na l pain. On SunJay night the pain got \\·orse. and on Monday he \\'US nauseous. fatigued. and felt pain radiating into his right shoulder. /\Her drinking a glass or cold \\'atcr, he felt a stabbing pain in his abdomen four inches to the right or his belly hullon . I k testilied the pain extended from his abdomen to his right shou lder to the right side of his neck . u11d that he had dirliculLy breathing. I le testilied he culled his ex-wife. Crystal Pialn ick. and told her he had pain traveling up his right shoulder and into hi s arm and neck. Ms. Piatnick testified she called the ambulance." hich took plaintiff to the hospital. i\kdical records reveal plaint iff was admitted lo St. Catherine of Sie r Med ical Center from /\pril rn 18. 20 I I 1hrough :vhl) 9. 20 I I. On 1 \pril 18, 201 1. triage nurses documcnkc.I plaintiff's chief complaint of' abdominal pain for tht: past two days. radiating to his right shoulder with increased pain on inspiration and shortncs~ of breath. The pain was noted to he I 0 out or I 0. sharp and constant. Plain ti tT was seen hy Dr. lkth 1layL'S at 8: I 5 p.rn .. i11 thc cn1ergency room. and herc:xamination rc\'ealcd tenderness in plaintiWs right upper q1r:idr:rnt. a pn,itiw l'v1urphy 'ign. prisitivl' guarding. nnd nn CV/\ tcnckrncss. Dr. I !ayes test ified her diagnosis \\HS gnllhladJcr disease. dwlclithiasis. ehokcystitis. pneumonia. acute coronary syndrome. and ga"triti". 'ihe ordered 111nrphine l(ir pain. i'ofran f(ir· nausea. a chest '\-ra~. and an abdominal ultrasound to assess plaintif'l~s g.a!Jbladtkr. kidnL')'S. li\'cr and pancreas. Dr. Sandlwy;1 Sinµh. a St. Catherine nr Siena Medical CL'ntl'r staff radinlogi~t. inkrprelt:d the ultrasnund pL'rfi.>rmnl b~ a ll'L'hnil·ian. Dr. Sing.Ii tl'stificd that an abdominal ultrasound <foes not e\·aluatc an uppL'ndix: and that an appendi~ is evaluatl'd b: performing a ]o\\'er right quadrant ultrasound. She lt:stilied she was not given any info rmation regarding the lucation orpfaintitrs abdominal pain. th~ lJUalit) of' the pain. or an)' other signs <)r symptoms. Dr. Singh testified plaintiff's gallbladder was unremarkable. as was his spken and kidney. and that thl'rc wa-; no evidence or gallstones. peri-chnk<.:ystic fluid. or gallhladdL·r '"all 1hiL'.kc11i11g. Dr. Singh had 110 other im oh emcnt "ith plaintiff. [* 3] Whakn v Wh<111g lnJex No. 12-034969 Page 3 Dr. I Iaycs testilieJ she adrnillcd plaintiff wiLh a diagnosis ul' right lower lube pneumonia. ii is cardiac e1vy111es were normal. but while blood count was elevated. Dr. Muhammad Noor. th<.: hospitalist and a hoard certified internist. exnmined plnintiff and assigned him to the day1imc hospitalist Dr. Sung Vv'hakn. Or. 1 oor testified that his findings from examining plaintiff's abdomen were benign. I le tcstilied that he advised Dr. Whalen to sec plaintiff at 7:00 a.m. and that his examination did not find an) signs or .symptoms ol'appendicitis or tcndemcss or guarding. I le ordered a pulmonary consultation. and morphine. 011 /\pril I 9. 20 I I. plainti IT was examined by Dr. Capustin, a board certified pulmonary and critical <.:arc medicine attending physician. Or Capuslin lcstified that plaintiffs chest x-ray revealed a right lo\\'er lobe alclectasis/infi ltratc. and that plainti IT's abdomen was so Ii and nontendcr. He testi lied that plaintiff did not complain of abdominal pain, and that he ordered fV antibiotics, incentive spirometry. nncl CTangiogram of plaintitrs chest. On /\pril 19, plaintiff was also seen by Dr. Malhotra. who recommended cardiac monitoring with scrinl cardia<.: enzymes. A cchocardiogram noted no significant cardiac abnormalities. Dr. Whalen examined plainti IT on April 19. 20 I I. r le testified plaintiff was feeling better that day. but still complained or pain on the right side or his chest and abdominal area. I\ CAT scan showed no pulmonary cmbolism. Dr. Whalen assessed plaintiff with pneumonia, hypertension. and an abnormal EKG. I le ordered follc)\\-Ups ,,.·ith pulmonolog.y and cardiology. On /\pril 20. 2011. Dr. Whalen noted that plaintiff had abdominal pain. I le tcstilied that plaintitrs pain was not significant and that thcrc were no significant abdominal findings from the examination. On April 20. 2011. Dr. Capustin noted no pulmonary embolism per CJ\ I scan. atelcctasis/ inllitratc right middle and right lower lobe, chest pain less. lungs dt:cn:ascd breath sounds right base. afehrilc. 011 1\pril 21. Dr. Whang notl'd plaintiff complained of ehill!' and abdominal pain. He testified plaintiff had positive bowel sounds with mild tenderness in the upper right quadrant and continued the assessment or pneumonia. Dr. Capustin ordered a CAT scan of plain tifrs abdomen ~tnd pelvis. IV and oral rnnlrast. On April 21 at 5:45 p.m .. the CAT scan \-\·us positive for appendicitis. The1\.'afkr, plaintiff \Vas examined by Dr. /\rumugam and surgical intervention was n:commended. J Jospital records indicate plainliff ncec.kd more til11L' to make a decision, and he was started on Primaxin for bom:-1 coverage. Dr. David Ri,·adeneira. a board certified general. colon. and rectal surgeon. offered a second ;;urgical opinion. 1 lkr examining plain ti IT. Dr. Rivadencira agrt:cd that plaintiff n.:quired surger). \ l>r. /\rumugam \\U.S to perform an appL'ndc<.:tomy. I fospital nolcs indi·catc !hat on 1\prif 2~. :!010. plaintiff denL'ira p1:rf(Hm the c.;urgcry. /\ laparnscopic was planned. but converted to an ()pen requested Dr. Riv;1 procedure due to significant adhesions. inflammatory process. and the presence of ahsc.:esscs. The surgery rc\L·aled thal plaintiff"'> appcndi-.; hnd ruptured and an inf<..·ctinn had nHHL'd into thl..' riµht ur1wrquadrant. Dr. Rivadrncira used Scpralilm. an :ihsmbabk material th<H is used to reduce adhesions or sc~11· 1issue that de\'t:lop nfkr surger:. I lo;;pital tL'Clll'tl" from 1 \prif ~\. ~01 I irnfo:atl..' cardiolog~ stoppe<l l(1llm\·ing plaintiff. and Ill' \\as instructed tn folkm-up in four to six \\ccks. f)r. Capustin. \\ho 1.:xamined plaintiff that sameda). 11.:stilied ltis diagnosi s was peritonitis right lower lobe inllitrall: with dcvated right diaphragm scco1H.lar::- to sulxliaphraµmnlic process. inhalation. and IV antibiotics lo continue. Dr. Whang also ll!stilied that he cxaminl'd pla intiffon .'\pril :n and assessed appendicitis ,,·ith microperforations and pneumonia. Dr. (ienua [* 4] Whakn v Whang 'o. 12-034969 Pug<.: 4 lnd~x also examined plaintiff anti her notes indicate. in parl. that there was no flatus. that his pain was controlled. that the abdomen was soft. distl..'nded. and nontcnder, that the drcssini.!.S were clean. drv nn<l iniact. "" - 1lospiial records frotT1 /\pril 24. 20 11, indicate that Dr. Gcnua noted plaintiff did not wa11t L get out o of bed. positive nausea. no reflux. temperature I 00.4. pulse I 02, blood pressure 139/93, abdomen son. distended. nontcnckr. no guarding. /\ nasogastic (NG) tube was placed and Dr. Whang requested an in!Cctious disease co11sultation. Dr. Kohn examined plaintiff, dis<.:ollli nucd rucephin and a/..ilhromy<.:in, and on.lc.:red imipenem. Dr. Rivadeneira Lestilicd he saw plai ntiff on April 25 and 26. 20 I L and plaintiff v afCbrile and ,las stahk but nl.!gativc for bowl signs. Dr. C'apust in noted no evidence of ongoi ng pneumon ia. I lospita l records ind icate that on /\pril 27. 2011 plain ti ff developed a stage II ulcer, and a wound care nurse, Edna Rousseau. rernmmcmkd a zone air mattress and a special seat cushion, which Dr. Whang ordered. On April 'J.7, 20 I l, Dr. Rivadeneira notes positive flatus but a partial bowe l obstruc tion. On April 28, Dr. Rivadcncira·s examination of plaintiff showed positive bowel sounds. no !Cver, cough. chest pain. or sho11ncss of breath. and no evidence or pneumonia. A clinical murition nolc indicates no food or water by mouth (N PO) and that plaintiff had a stage I or II ulcer in the sacral/buttock area. On April 29. the CJ tube was rcmovcJ and plaintiff to lcratecJ clear liqu ids. On April 30, Dr. Rivadenciru's notes in dicate plaintiff was doing wdl and pain medication was discontinued. I lo\\'cver, on May I plaintiff\\·as vomiting and Dr. Whang ordered NPO. /\ CAT scan revealed partiaJ small bowel obstruction. and a conserY ati\c plan to allow it lo reso lve on its own was put in place. On May 2. a PI CC li ne was plnccd and an end ocrinology consult \\·as preformed by Dr. Tcrrana. On May ~. plaintiff had positive bowl movement. no naust><l. Of' vomiting. On fay 4. a drainage procedure was scheduled. and on May 5. Dr. Shu-Ho Chang performed an ubdominal wall abscess CT-guided drainage with an 8-Frcnch pigtail catheter yicl<ling 3()111L of slightly turbi<l scrosanguinous lluid. whi ch was negative for anaerobic or aerobic growth. On May 6, the NG tube was removed and on May 9 plain ti ff was discharged from the hospital. ro make a pri ma foe ic shl)wing of entitlement to summaryjudgmenl in an ac tion to recover damages for me<lical malpr~1dice . a dclcnuant must establish through mcdi<.:al records and c0mpetcnt expert artidavits 1hal il did not deviate or depart from accepted medical practice in the treatment or the plaintiff or that it was 1101 the proximate cause or plai ntilrs 111juries (see Castro v New Y<1rk Ci~r lleafth & H<,,ps. Corp .. 7-J. > /\l)J<l 1005. 90] NYS2d 152 [::!d Dep! 20 10 [: Deutsch 1· Clwgfassia11. 71;\ J) )d71 8. 8% N Y S2d -D J [2d Dcrt '.2tl JOI: Plato,. G1111crat11e. 5-J. .t\l>ld 7..:1 I. 86~ ~YS2d TJ.6 [2d Dept 20081: J ones '' Ricciardelli. 40 /\D:ld 935. 836 ' YS'.2d 879 /2d Dept 2007/: M ende<, 1• Ci~r o/ Ne w York. 2<>5 /\D2d 487. 7-1..J. YS2d 8·H l::!d lkpt 2002j). Io s:llis(,· this burckn. th<.· dtknd:tnt mus t prcsL'nt .::x1K·rt opinion le-;timo11~ that is supported by foct:-. in the record and addresses the essential allega tions in the bill of part iculars (.we Roques 1· N ohle. 73 1 1)1d 204. 899 \ Y.'2d l 9.1 I I st I kpl ~()I 0 J: Ward 1• £11gt!I. .l.1 /\DJd 790. 82~ YS2<l (>08 j2d lkpl 200(>j). Co11dusory s1a1c111c11ls that do not nddrcss the allegations in the pleading!. arc insunicienl to l'slahlish l'lltilkmcnt to sun1111aryjudg111cn t (st><' Garhmvski 1• llml.w111 Val. limp. Ctr., 85 /\D}d 724. 924 J YS2d I2d I kpl 20 I 11 ). A physician o\\ cs a <luty or reasonahlc can: lo his or her pat icnts and \\'i 11 generally be insulated from liability where there is evidcm:c that he or she conliirmcd lo the accqHablc standard or care und pradi c.: (see Spc!llsieri v Lasky . 94 N Y2d 231. 70 I N YS2d 6 89 j 199<) I: Barrett 11 !lutl.wm Valley Cardim• \'Cu/ar Assoc., P. C . 91 /\ DJd 69 I. 9.16 YS2d .104 J 2d De pl 2012 I: (ie.ff11er 1• North Shore Univ. a. limp .. 57 /\DJd 8.W. 871 YS2<l 617 l2d Dept 2008/). 1 [* 5] Whalen \ Whang Index ·n. I1-0:i4969 Page 5 Failure lO Jemonstratc a prima facie case requires Jcnial or the summary judgment motion. n.:gardlc.:ss or till· suffa:iency of' the opposing papers (see A / v(lrez v Prospect llosp.. 68 Y2<l 320. 5088 NYS2d 923I1986j). Once the dcli.:ndant makes a prima facie showi ng. the burden shills to the plaintiff to produce cvidentiary proof in admissible form sunicienl to establish the existence of triable issues of fact which rcquin.: a trial of the action (see A/v(lrez '' Prospect llosp. , supra; Kelley v Kings brook Jewish M ed. Ctr.. 100 /\DJd 600. 953 NYS2d 276 Pd Dept 2012]: Fiore11ti110 '' TEC Holdings, LLC. 78 AD3d 911 NYS2d 146 l2d Dept 2010/). In a medical malpractice action. a plaintiff opposing a motion for summary judgment need only raise a triable issue or fact with respect to the clement of the cause of action or theory or nonliabi I ity that is the subject of the moving party· s prima facie sho"ving (see Bhim v Do 11rma.~/1ki11 , 123 /\03d 862. 999 YS2d 471 l2d Dept 20 14]: Hayden v Gordon, 9 1 AD3d 819, 937 NYS2d 299 l2d Dept 10 12J; Stukas 11Streiter. 83 /\D3d 18, 918 NYS2d 17612d Dept 2011 I: Sclticl111u111 v Yasmer. 74 J\D3d 1316. 904 YS2d 218 [2<l Dcpt2010j). /\s to the lirst cause ofae1ion. defendants Dr. Noor. Dr. Rivadeneira, and Dr. Singh have established their prima lhtie entitlement to summary judgment dismissing the claim of medical malpractice and any cross tlaims aga inst them. Dr. William Mil ler, their expert. avers that Dr. Noor. Dr. Rivadeneira. and Dr. ' ingh did not <.kviale from the accepted standard of care in the field or medicine in the care and treatment rendered to plainciff. I le further opines that the care and treatment rendered by Dr. Noor. Dr. Rivadeneira. and Dr. Singh \vas not the proximah.: cause of plaintiffs injuries. Dr. Miller avers that Dr.. oor. as the night hospitalist. admilled plaintiff to Dr. Whang's service atter Dr. I layes emergency room examination or plaintiff. Dr. oor tl..!stilied his exarninution revealed plainti rrs abdomen was ..benign," son. non tender with positive howd S()un<ls. After the diagnosis of pneumonia with a plan to rule out ucutc.: coronary syndrome. Dr. Noor was not involved in plaintiff's care and treatment. Dr. Milil:r avers that Dr. Noor's examination or plaintiff n:vcalcd ..no sign or symptoms or appendicitis. tenderness, guarding or rebound pain." and that .. thl' allegation that Dr. I oor fai led lo properly and timely palpitate plaintiffs l abdominal region is without meri1.·· Dr. Ylillc.:r avers that Dr. Singh·s sole involvement in the care and treatment or plaintiff was to interpret the abdominal ultrasound preformed on April 18. 20 I 1. and thal an abdominal ultrasound docs not ,·isualizc the appcndix. I le opines her interpretation and impressio n of that test was co1-rcc1. Dr. Miller also a' en; that Dr. Ri,·adcneirn was requested lo provide a second opinion after a CAT sc.:an was posit ice for appendicitis. Dr. Miller opines the urgency of the surgery was properly explained and the conversion from laparosrnpic appendectomy LO an open proccdurc was appropriate. I le opines that the use or Scprnfilm lo prc,·ent th1..· l(1rn1:1tion or further adhesions \\·as not contraindicated and \\'as appropriat1..'. r Dckndants Dr. Whang. Dr. Singh. Dr. Nonr. Dr. Rivadeneira, and St. Catherim· or Siena Medical ( 'enter ban: :dso est;1 hi ishl..'.d th~:i r pri ma facic cnt it lement to surrnnaryj 11dgmc111 dism i-;sing thl;'. sel.'nnd c.iuse nrrn.:lion alkging. lack uf informc<l consent. Dr. Miller an:rs plaintiff was gave informed consent for the surgcr) perfonm:d h) Dr. Rivadeneira. the PICC line placed May 1. 2011. and the ~a) 5 CT-guided drainage. I k opines that these prot:edures did not cause any injur) 10 plaintiff. /\ccordingly. Lhl· -;cc.:ond cause oractilln is dismissed as tn Dr. \\'hang. Dr. Singh. Dr. 1 oor. Dr. Rivadem:ira. and SL. Ca11leri111..· or Siena Medicul ('enter. In opposition. plaintiff has failed to raise a triable issue or fact. Pl ainti tr s expert avers that plain1i ff made no complaints of abdominal pain nl the time or Dr. 1oor's first examination of plaintiff at approx imatcl) I 0:00 p.111. 011 1\pri I l 8. 20 I I. The ex pert opines it "<is nt:gl igent and ii departure from good [* 6] Whalen v Whang Index o. 12-03~969 Page 6 and acccph;J stundan.ls of medical practice in failing to re-examine and re-assess plaimiffs complaint of se' ere right-sided abdominal pain in the early morning hours of /\pril 19. 2011. J reopines that Or. Noor should have re-examined plaintiff and performed a Psoas test and checked for the obdun:nor sign in ord<.:r ··10 account for his patiem·s now additional complaint of severe right-sided abdominal pain requiring narcotic pain manngcmcnt. ·· This opinion is speculative and is unsupporl by the record and, therefore, is insufficient to withstand summary judgment (Diaz v New York Dow11town Hospital, 99 NY2d 542, 754 1 YS2d 19512002]). Plaintiff: by discontinuing his claim against Dr. Hayes, the emergency room physician. admits that Dr. Hayes was not negligent and did not commit malpractice. lt is undisputed that Dr. I Jayes did not palpate for the obdurator sign or conduct a Psoas test, and that Dr. Noor agreed with her assessment of plaintiff's condition. Moreover, plaintiff's expert docs not allegl.! negligence or malpractice when Dr. Noor first cxami ned and assessed plaintiff at approximately 10:00 p.m. on April I 8, 20 I 1, at which time plaintiffs pain was not escalating. Rather, the evidence in the record shows that, while plaintiff complained of pain of I 0 on a scale of J 0 at 8: 13 p.m .. 6 mg. of morphine was administered. At I 0:30 p.m., I mg. or morphine \\HS ordered every three hours. Ac I I :30 p.m .. plaintiff reported pain of 8 on a scale of I 0 and 1mg. of morphine was administered. At 11 :50 p.m .. plaintiff reported pain of 4 on a scale of J 0. On April 19. 201 1. at I :30 a.m., plaintiffs reported pain of6 on a scale of I 0 and Dr. oor ordered 2 mg. of morphine every 4 hours. /\t 2:00 a.m .. plai ntiff's pain was 3 on a scale of 10 and at 5:20 a.m .. plaintiff reported pain of 7 on a scale or I 0. and 2 mg. or morphine was administered. The medical records reveal plaintiJf s pain was not increasing. bul the pain was reduced by less milligrams of morphine than was initially administered (6 mg.,. 2 mg.l. Plaintiffs cxpcn·s opinion. therefore. is not supported by the record and fails to raise a triable issue or foci. /\ccordingly the first cause of action and the cross claims asserted against Dr. Noor. Dr. Rivadeneira. and Dr. Singh MC dismissed. D:.itcd: 5-11-ll FIN \l. OISPOSITIO ' X

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