Eiseman v Denoya
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Eiseman v Denoya 2017 NY Slip Op 33527(U) May 18, 2017 Supreme Court, Suffolk County Docket Number: Index No. 14-64162 Judge: Daniel Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. ________________~----------------------l INDEX NO. 064162/2014 FILED: SUFFOLK COUNTY CLERK 05/22/2017 12:20 PM NYSCEF DOC. NO. 89 RECEIVED NYSCEF: 05/22/2017 < INDEX No. INDEX No. 14-64162 14-64162 CAL. No. No. 16-00374MM l 6-00374MM SUPREME NEW YORK SUPREME COURT COURT - STATE STATE OF NEW YORK I.A.S. PART 9 - SUFFOLK LA.S. PART SUFFOLK COUNTY COUNTY PRESENT: PRESENT: Hon. MOTION MOTION DATE DATE 8-16-16 8-16-16 9-6-16 ADJ. DATE ADJ. DATE 9-6-16 001 - MD Mot. Seq.# Seq. #001 DANIEL MARTIN DANIEL MARTIN ---------------------------------------------------------------X ---------------------------------------------------------------X RICK EISEMAN and .JACQUELINE RICK EISEMAN JACQUELINE EISEMAN, EISEMAN, Plaintiffs, Plaintiffs, BAUMAN KUNKIS, PC BAUMAN & KUNKIS, Attorney for Plaintiffs Plaintiffs Attorney Suite 2208 14 Penn Penn Plaza, Plaza, Suite 2208 New York, York, New New York York 10122-0049 New 10122-0049 - against against- - PAULA DENOY A, M.D., M.D., ELLEN ELLEN LI, M.D., PAULA DENOY M.D., TIMOTHY M.D., JASON TIMOTHY CONNOLLY, CONNOLLY, M.D., JASON CHIU, CHIU, M.D., ELDHOSE ELDHOSE ABRAHAMS, ABRAHAMS, M.D., M.D., M.D., ROBERTO BERGAMASCHI, M.D., M.D., STONY ROBERTO BERGAMASCHI, STONY BROOK SOCIA TES, BROOK SURGICAL SURGICAL AS ASSOCIATES, UNIVERSITY FACULTY UNIVERSITY FACULTY PRACTICE PRACTICE CORPORATION CORPORA TION and STONY STONY BROOK BROOK INTERNJSTS, UNIVERSITY FACULTY INTERNISTS, UNIVERSITY FACULTY PRACTICE CORPORATION, PRACTICE CORPORATION, Defendants .. Defendants. FUMUSO, KELLY, SWART, POLIN FUMUSO, KELLY, SWART, FARRELL, FARRELL, POLIN & CHRISTESEN, CHRISTESEN, LLP LLP Attorney for Defendants Attorney Defendants Denoya, Denoya, Li, Bergamaschi, Bergamaschi, Stony Stony Brook Brook Surgical Surgical Associates, Associates, University Faculty Faculty Practice Brook University Practice Corp Corp and Stony Stony Brook Internists University Faculty Faculty Internists & University Suite 500 110 Marcus Marcus Blvd Blvd - Suite New York York 11788-3704 1-Iauppauge, New Hauppauge, 11788-3704 ERIC T. SCHNEIDERMAN ERIC SCHNEIDERMAN Attorney General of the State of New York Attorney General of of New Attorney for Defendants Defendants Connolly, Connolly, Chiu, Attorney Chiu, and Abrahams Abrahams 120' Broadway 120 Broadway New York, New York York 10271 New York, New ---------~-----------------------------------------------------X ---------------------------------------------------------------X Upon the the following following papers numbered I1 to_fil_ to.1U- read read on this this motion motion for summary summary judgment; of Motion/ Motion/ Order Order Upon papers numbered judgment ; Notice Notice of Show Cause Cause and and supporting supporting papers --l.:..1i.; Notice of Cross Cross Motion Motion and supporting supporting papers _; Answering Affidavits Affidavits and to Show papers -1...:...1.i.; Notice of papers_; Answering supporting papers Replying Affidavits Affidavits and supporting supporting paped~; Other _; (a1td (and aftet aft-et heating healing eoµmel eopme! in support Stlpport and papers~; Other_; supporting papers 76- 80 ; Replying opposed to the motion) motion) it is, opposed ·, ORDERED that that the motion motion of of defendants defendants Dr. Timothy Timothy Connolly Connolly and Dr. Jason Jason Chiu Chiu for ORDERED summary judgment dismissing the complaint complaint against against them them is denied. denied. summary judgment dismissing [* 1] 1 of 6 -I I FILED: SUFFOLK COUNTY CLERK 05/22/2017 12:20 PM NYSCEF DOC. NO. 89 INDEX NO. 064162/2014 RECEIVED NYSCEF: 05/22/2017 Eisman Eisman v Denoya Denoya lndexNo.14-64162 Index No. 14-64162 Page 2 Plaintiff Eiseman commenced this action action against against defendants defendants to recover recover damages damages for injuries injuries Plaintiff Rick Rick Eiseman commenced this allegedly sustained sustained as a result allegedly result of of negligent negligent care and treatment treatment and lack lac_k of of informed informed consent. c~nsent_- Plaintiff's Plaintiffs wife, Jacqueline brought a derivative derivative claim claim for loss of of services services and companionship. compamonship. wife, Jacqueline Eiseman, Eiseman, brought Defendants Dr. Timothy Timothy Connolly Connolly and Dr. Jason Jason Chiu Chiu now now move move for summary summary judgment judgment Defendants dismissing them on the ground ground that that their their treatment treatment of of plaintiff plaintiff did not not depart depart from dismissing the claims claims against against them accepted medical accepted medical practice, practice, and was not a proximate proximate cause cause of of his injuries. injuries. The The moving m~ving defendants de_fenda1~1t~ further further plaintiffs injuries, injuries, as they they were were residents residents during dunng the time tune of ot his hi_s argue that that they liable for plaintiff's they cannot cannot be liable treatment and were under the supervision supervision of of an attending attending physician. physician. In support support of of the motion, motion, the treatment were acting acting under movants submit pleadings, the bill of of particulars, particulars, an expert expert affirmation, affirmation, and and the transcripts transcripts movants submit copies copies of of the pleadings, of parties' deposition testimony. of the parties' deposition testimony. Plaintiff Plaintiff testified testified that that he was was diagnosed diagnosed with with Crohn's Crohn's disease disease in 2000, 2000, and that that he treated treated with with Dr. Leeboth Lecboth and Dr. Dresnick. Dresnick. He testified testified that that he suffered suffered from abdominal abdominal pain pain and chronic chronic diarrhea, diarrhea, and that developed a fistula. that he developed fistula. Plaintiff Plaintiff testified testified that in 2001, 2001, he began began receiving receiving Remicade Remicade infusions, infusions, and that after after the second second treatment, treatment, the fistula fistula closed, closed, and that that the symptoms symptoms of of diarrhea diarrhea and and abdominal abdominal pain became manageable. He testified became manageable. testified that that in 2010, 2010, his abdominal abdominal pain pain returned, returned, and that that he suffered suffered on in 2013, and an upper upper a daily basis, basis, especially after he ate. Plaintiff testified that he received a CAT scan especially after Plaintiff testified received CAT 2013, gastrointestinal x-ray x-ray examination examination which gastrointestinal which revealed revealed the presence presence of of a fistula, fistula, so Dr. Dresnick Dresnick referred referred him to Dr. Ellen Ellen Li. He testified testified that that he presented presented to Dr. Li, and that that she informed informed him him that that he had had one or two fistulas surgery, and that fistulas which which required required surgery, that the Remicade Rcmicade was no longer longer working. working. Plaintiff Plaintiff testified testified that Dr. Li referred surgeon, Dr. Denoya, referred him him to a surgeon, Denoya, and that that he presented presented to her her office office for a consultation. consultation. He testified Denoya reviewed about the testified that Dr. Denoya reviewed his medical medical records, records, and that that she concurred concurred with with Dr. Li about presence of of a fistula. presence fistula. He testified testified that that Dr. Denoya Denoya told him him she would would be performing performing laparoscopic laparoscopic surgery to do a resection, would need resection, that that he would need an ostomy, ostorny, and that that he would would be in the hospital hospital for surgery approximately a week. approximately week. Plaintiff Plaintiff testified testified that that Dr. Denoya Denoya explained explained the risks risks of of the the surgery, surgery, and he signed a consent consent form. signed According to his deposition According deposition testimony, testimony, plaintiff plaintiff presented presented at Stony Stony Brook Brook University University Hospital Hospital on Thu:sday in November undergo the surgery. surgery. After After the surgery, surgery, he had had trouble trouble breathing breathing and a Thursday November 2013 to undergo expenenced abdominal abdominal pain. Timothy Connolly, Connolly, who told told experienced pain. Plaintiff Plaintiff testified testified that that he complained complained to Dr. Timothy him that was done," that he ordered ordered an x-ray x-ray examination examination which which revealed revealed he had had that "nothing "nothing was done," and that pneumonia. He testified pneumonia. testified that that his wife wife told told him him that that Dr. Denoya Denoya did not not observe observe a fistula fistula nor nor did she find any evidence Crohn's disease. evidence of of.Crohn's disease. Plaintiff Plaintiff testified testified that that he had had a fever fever from from Friday Friday through through Sunday, Sunday, but but the nurses O1 degrees. nurse~ explained explamed that that they they were were not not concerned concerned unless unless his temperature temperature was was 1101 degrees. He testified testified that he from abdominal h~ still stIll suffered s~ffered .fro~ abdominal pain pain when when he was was discharged discharged from from the the hospital, hospital, and and that that he was prescribed pain medication and Ciprofloxacin. pain prevented prevented him prescnbed .pam medICatIOn.and Ciprofloxacin. Plaintiff Plaintiff testified testified that that his abdominal abdominal pain him fro~ sleeping sleepmg on Sunday Sunday night, mght, but but the following following day he decided decided to try to "out "out muscle muscle this this thing." thing." He fro~ testified testIfied that th~t he took took a shower, shower, dressed dressed himself, himself, and went went to the the park park to walk walk around around the the track, track, but but he only made made it It half half way way around around the track, track, as he had had trouble trouble breathing. breathing. Plaintiff Plaintiff testified testified that that he went went home home only and Dresnick, who and. called called Dr. .Dre:nick, who told told him him to go to the emergency emergency department department at St. Charles Charles Hospital. Hospital. He He testIfied that that his hIS wife WIfe drove drove him him to the hospital, hospital, and and that that he was was placed placed in the the Intensive Intensive Care Care Unit, Unit as his testified oxygen oxygen was low. He testified testified that that he was was given given medication medication for the the abdominal abdominal pain pain at St. Charles, Charles: and [* 2] 2 of 6 FILED: SUFFOLK COUNTY CLERK 05/22/2017 12:20 PM NYSCEF DOC. NO. 89 INDEX NO. 064162/2014 RECEIVED NYSCEF: 05/22/2017 Eisman v Denoya Denoya Eisman Index No. 14-64162 14-64162 Page Page 3 told him he had pneumonia. He testified following day, Dr. Theodorus, that a nurse nurse told had pneumonia. testified that that the following Theodorus, a pulmonologist, removed removed fluids remained at pulmonologist, fluids from his lungs lungs and drained drained his stomach. stomach. He testified testified that that he remained St. Charles that it was subsequently portion of Charles for six days, and that subsequently determined determined that that the left portion of his diaphragm diaphragm paralyzed. Plaintiff Plaintiff testified that in February February 2014 Remicade infusions infusions for the was paralyzed. testified that 2014 he resumed resumed the Remicade Crohn's February 2014. 2014. Crohn's disease, disease, and that that he has had approximately approximately ten flare ups since since February Paula Denoya testified that board certified that she is an Dr. Paula Denoya testified that she is a board certified colorectal colorectal surgeon, surgeon, and that attending Brook University Hospital. She testified was referred attending physician physician at Stony Stony Brook University Hospital. testified that that plaintiff plaintiff was referred to her presented to her her office with complaints history of by Dr. Li and that that he presented office with complaints of of severe severe diarrhea diarrhea and a medical medical history of Crohn's Crohn's disease. disease. She testified testified that that she reviewed reviewed the magnetic magnetic resonance resonance imaging imaging (MRI) (MRI) images images which which revealed possibility of testified that that she recommended recommended to plaintiff plaintiff that revealed the possibility of two small fistulas. fistulas. Dr. Denoya Denoya testified he have surgery to evaluate evaluate the small small bowel, resect the ileocolic ileocolic region, region, and possibly have laparoscopic laparoscopic surgery bowel, resect possibly do a resection testified that that she explained explained the risks resection of of the sigmoid sigmoid colon. colon. She testified risks associated associated with with the laparoscopic signed a consent consent form. Dr. Denoya Denoya testified testified that laparoscopic surgery, surgery, and that that plaintiff plaintiff signed that when when she performed surgery, she did not observe any fistulas, fistulas, so she performed colonoscopy, which performed the surgery, not observe performed a colonoscopy, which revealed revealed mild inflammation cecum and mild inflammation in the rectum. testified that that she informed informed inflammation in the cecum mild inflammation rectum. She testified plaintiff's wife wife and that she found Crohn' s disease plaintiffs and Dr. Li that found no evidence evidence of ofCrohn's disease and did not not observe observe any fistulas, that it was was unnecessary Denoya testified testified that examined fistulas, and that unnecessary to perform perform a resection. resection. Dr. Denoya that she examined plaintiff the following unaware of breathing plaintiff following day, and that that he was was tachycardic, tachycardic, but that that she was unaware of any breathing problems. that plaintiff discharged from the hospital hospital on Sunday, Sunday, November 17,2013, problems. She testified testified that plaintiff was discharged November 17, 2013, by Dr. Roberto weekend. She testified testified that Roberto Bergamaschi, Bergamaschi, as she was not at the hospital hospital on the weekend. that Dr. Timothy Connolly Connolly is a junior care, and that that Dr. Timothy junior resident resident who was was involved involved in plaintiff plaintiff'ss postoperative postoperative care, Jason testified she did not know worked at the Jason Chiu Chiu is a surgery surgery resident. resident. Dr. Denoya Denoya testified know whether whether Dr. Chiu Chiu worked hospital that weekend. hospital that weekend. At his deposition, deposition, Dr. Jason Jason Chiu Chiu testified testified that that he works Stony Brook works at Stony Brook University University Hospital Hospital as a chief surgical surgical resident. resident. He testified testified that 16,2013 24-hour shift shift which which chief that on November November 16, 2013 he was working working a 24-hour began testified that that Dr. Bergamaschi Bergamaschi was attending physician colorectal service, service, began at 8:00 a.m. He testified was the attending physician for colorectal and that that he was was part of his team. team. Dr. Chiu Chiu testified that he was notified notified that febrile and part of testified that that plaintiff plaintiff was was febrile tachycardic on November 16,2013, that he ordered ordered blood work which which indicated indicated plaintiff tachycardic November 16, 2013, and that blood work plaintiff had an elevated white count which which he attributed attributed to postoperative inflammation. He testified that he elevated white blood blood cell count postoperative inflammation. testified that ordered cultures, cultures, but but the results results were were not obtained obtained until until after after plaintiff was discharged. discharged. Dr. Chiu Chiu also ordered plaintiff was testified that that plaintiff Tylenol to reduce that he attributed attributed his fever fever to a possible testified plaintiff was was taking taking Tylenol reduce his fever, and that possible urinary infection, for which which he prescribed Ciprofloxacin. He testified that he ordered ordered a chest chest x-ray x-ray urinary tract tract infection, prescribed Ciprofloxacin. testified that examination and a CT angiography angiography to rule rule out out a pulmonary embolism, and and that that the results results indicated indicated examination pulmonary embolism, plaintiff scattered subcutaneous subcutaneous gas locules locules and Atelectasis Atelectasis which which he believed were caused caused by plaintiff had had scattered believed were postoperative testified that that plaintiffs chart indicated indicated that that Dr. Connolly Connolly discharged discharged him him on postoperative pain. pain. He testified plaintiffs chart November 17,2013. November 17, 2013. Roberto Bergamaschi Bergamaschi testified testified that that he is a board certified colorectal colorectal and and general general surgeon surgeon and Dr. Roberto board certified division chief chief of of colorectal colorectal surgery surgery at Stony Stony Brook Brook University Hospital. He testified testified that that he was the University Hospital. the division attending physician that weekend weekend and in charge charge of of the team team that that treated treated plaintiff on call attending physician that plaintiff from November November 16,2013 17,2013. Bergamaschi testified testified that that Dr. Connolly Connolly was was a junior resident 16, 2013 until until November November 17, 2013. Dr. Bergamaschi junior resident [* 3] 3 of 6 FILED: SUFFOLK COUNTY CLERK 05/22/2017 12:20 PM NYSCEF DOC. NO. 89 INDEX NO. 064162/2014 RECEIVED NYSCEF: 05/22/2017 Eisman v Denoya Denoya Eisman Index No. 14-64162 Index No. 14-64162 Page 4 Page4 was on the the colorectal colorectal team, team, and that that he conducted conducted rounds rounds with with him him on Saturday Saturday morning. morning. He who was testified that that both both Dr. Connolly Connolly and Dr. Chiu Chiu worked worked under under his supervision supervision and and direction. direction. He testified testified testified that he examined examined plaintiff plaintiff on November November 16, 16,2013, that he was was alert alert with with no signs signs of of distress, distress, but but his that 2013, that white blood blood count count was was elevated, elevated, and he had had a fever, so he ordered ordered a chest chest x-ray x-ray examination, examination, and Dr. white Chiu ordered ordered a sputum sputum culture, culture, urine urine culture, culture, and a urinalysis. urinalysis. Dr. Bergamaschi Bergamaschi testified testified that that the x-ray x-ray Chiu images indicated indicated that that there there was was a left lower lower lobe lobe atelectasis, atelectasis, which which may may be indicative indicative of of his diaphragm diaphragm images being pushed pushed by the the distension distension of of the colon. colon. According According to Dr. Bergamaschi, Bergamaschi, plaintiff plaintiff did not not have have being pneumonia and, while while a differential differential diagnosis diagnosis was made made and that that included included pneumonia, urinary tract tract pneumonia pneumonia, urinary infection, peritonitis, peritonitis, ulcerative ulcerative colitis colitis or a wound wound infection, infection, the results results of of the the uranalysis uranalysis indicated indicated infection, plaintiff had had a urinary urinary tract tract infection. infection. He testified testified when when he examined examined plaintiff plaintiff on Sunday, Sunday, November plaintiff November 17, 2013, plaintiffs plaintiff s respiration respiration was was unlabored, unlabored, but he had substantial substantial atelectasis atelectasis and and an elevated elevated white white blood blood 2013, count. He testified testified that that plaintiff not have have a fever, fever, his pain pain was under under control, control, and and that that plaintiff plaintiff was count. plaintiff did not taking pain medication and Ciprofloxacin. Ciprofloxacin. Dr. Bergaschi Bergaschi testified testified that that he discussed discussed plaintiffs plaintiff s discharge discharge taking pain medication plan Connolly, that that Dr. Connolly Connolly prepared the discharge discharge summary, summary, and and that that plaintiff plaintiff was plan with Dr. Connolly, prepared the discharged that that same same day. He testified testified that that the results results of of the the urinary urinary culture culture and and sputum sputum culture culture were were discharged obtained on November 18,2013, after plaintiff plaintiff was was discharged, discharged, and and that that the urinary urinary culture culture obtained November 18, 2013, one day after indicated that that plaintiff plaintiff did did not not have have a urinary urinary tract tract infection. infection. With With respect respect to the sputum sputum culture, culture, a indicated bacteria known known as haemophilus haemophilus influenza influenza was present, present, indicating indicating an infection infection of of the the lung. lung. bacteria Timothy Connolly Connolly testified testified that that he is a second second year year surgical surgical resident resident at Stony Stony Brook Brook Dr. Timothy University Hospital, Hospital, and that that he worked worked on Dr. Denoya's Denoya's surgical surgical team team on November 14,2013, University November 14, 2013, and on Bergamaschi's team team on November November 16 162013 172013. His testimony testimony comports comports with with Dr. Bergamaschi's 2013 and November November 17 2013. His testimony of of the the other other parties. parties. the testimony well settled settled that that a party party moving moving for summary summary judgment must make make a prima showing of of It is well judgment must prima facie showing entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence to eliminate eliminate any material material issue issue entitlement judgment as a matter of fact (see Alvarez 320,508 NYS2d [1986]; Friends Friends of of Animals of Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d NY2d 320,508 NYS2d 923 [1986]; Animals v Associated Fur Mfrs., 1067,416 [1979]). The The failure failure of of the the moving moving party party Associated Fur Mfrs., 46 NY2d NY2d 1065, 1067, 416 NYS2d NYS2d 790 [1979]). make a prima prima facie showing showing requires requires the denial denial of of the motion motion regardless regardless of of the the sufficiency sufficiency of of the to make New York Med. Ctr., 64 NY2d NY2d 851,487 NYS2d 316 [1985]). opposing opposing papers papers (see Winegrad Winegrad v New York Univ. Med. 851, 487 NYS2d [1985]). burden then then shifts shifts to the the party party opposing opposing the motion motion which which must must produce produce evidentiary evidentiary proof proof in The burden admissible form sufficient sufficient to require require a trial trial of of the material material issues issues of of fact (Zuckerman (Zuckerman v City City of of New New admissible York, 49 NY2d 557, 427 NYS2d [1980]. The The court's court's function function is to determine determine whether whether issues issues of of fact York, NY2d 557,427 NYS2d 595 [1980]. resolve issues issues of of fact or to determine determine matters matters of of credibility; credibility; therefore, therefore, in determining determining the exist, not to resolve motion summary judgment, opposing party party and all inferences inferences that that may be motion for summary judgment, the facts alleged alleged by the opposing drawn accepted as true [2001]; O'Neill drawn are to be accepted true (see Roth Roth v Barreto, Barreto, 289 AD2d AD2d 557, 735 NYS2d NYS2d 197 [2001]; O'Neill v Town of of Fishkill, [1987]). Fishkill, 134 AD2d AD2d 487,521 487, 521 NYS2d NYS2d 272 [1987]). Town impose liability upon a physician To impose liability upon physician for medical medical malpractice, malpractice, a plaintiff plaintiff must must prove prove that that the physician deviated deviated or departed departed from accepted physician accepted community community standards standards of of practice, practice, and that that such such departure departure proximate cause cause of of the plaintiffs (Senatore v Epstein, was a proximate plaintiffs injuries injuries (Senatore Epstein, 128 AD3d AD3d 794, 9 NYS3d NYS3d 362 [2d Dept 2015]; 2015]; Poter Gillespie v New York Poter v Adams, Adams, 104 AD3d AD3d 925,961 925, 961 NYS2d NYS2d 556 [2d Dept Dept 2013]; 2013]; Gillespie New York Dept Hosp. Queens, 96 AD3d Hosp. Queens, AD3d 901, 947 NYS2d NYS2d 148 [2d Dept Dept 2012]). 2012]). To establish establish a prima prima facie showing showing of of [* 4] 4 of 6 FILED: SUFFOLK COUNTY CLERK 05/22/2017 12:20 PM NYSCEF DOC. NO. 89 INDEX NO. 064162/2014 RECEIVED NYSCEF: 05/22/2017 Eisman v Denoya Denoya Eisman Index No. 14-64162 14-64162 Index Page Page 5 entitlement judgment, a defendant entitlement to summary summary judgment, defendant physician establish through through medical and physician must must establish medical records records and competent competent expert expert affidavits affidavits that that the the defendant defendant did not deviate deviate or depart depart from from accepted accepted medical medical practice practice in his or her her treatment treatment of of the patient, patient, or that that any departure departure was not not a proximate proximate cause cause of of plaintiffs plaintiff s injuries (see Lau v Wan, 93 AD3d injuries Lau AD3d 763, 763,940 NYS2d 662 [2d Dept Dept 2012]; 2012]; Castro Castro v New New York York City 940 NYS2d Health & Hosps. Corp., AD3d 1005, Health & Hosps. Corp., 74 AD3d 1005,903 Dept 2002]). 2002]). Furthermore, Furthermore, to satisfy satisfy his or 903 NYS2d NYS2d 152 [2d Dept her burden on a motion for summary judgment, a defendant her burden motion summary judgment, defendant must must address address and rebut rebut the the specific specific allegations allegations of of malpractice malpractice set forth forth in the plaintiffs plaintiffs bill bill of of particulars particulars (see Wall Wall v Flus/ting Flushing Hosp. Hosp. Med. Med. Ctr., 78 AD3d 912 NYS2d AD3d 1043, 1043,912 NYS2d 77 [2d Dept Dept 2010]; 2010]; Grant Grant v Hudson Hudson Val. Hosp. Hosp. Ctr., 55 AD3d AD3d 874, 866 NYS2d NYS2d 726 [2d Dept Dept 2008]; 2008]; Terranova Terranova v Finklea, Finklea, 45 AD3d AD3d 572,845 572,845 NYS2d NYS2d 389 [2d Dept Dept 2007]). 2007]). "A "A resident resident who who assists assists a doctor doctor during during a medical medical procedure, procedure, and and who who does does not not exercise exercise any independent judgment, cannot independent medical medical judgment, cannot be held held liable liable for malpractice malpractice so long long as the doctor's doctor's directions directions did not so greatly greatly deviate deviate from from normal normal practice practice that that the resident resident should should be held held liable liable for failing failing to intervene" Merriam, 133 AD3d intervene" (Leavy (Leavy v Merriam, AD3d 636,638, 636, 638, 20 NYS3d 117,120 [2d Dept 2015], quoting Soto Soto v NYS3d 117, 120 Dept 2015], quoting Andaz, 8 AD3d NYS2d 104 [2d Dept Andaz, AD3d 470, 470, 779 NYS2d Dept 2004]). 2004]). Specifically, Specifically, where where "the "the doctor's doctor's orders orders are so clearly clearly contraindicated contraindicated by normal normal practice practice that that ordinary ordinary prudence prudence requires requires inquiry inquiry into into the the correctness correctness of of the orders" orders" Doria Doria v Beniscli, Benisch, 130 AD3d AD3d 777, 777,14 NYS3d 95 [2d Dept Dept 2015], 2015], quoting quoting Toti, Toth v Community Community 14 NYS3d Hosp. Hosp. at Glen Glen Cove, Cove, 22 NY2d NY2d 255,292 255, 292 NYS2d NYS2d 440 [1968]). [1968]). Here, Here, the moving moving defendants defendants submit submit the affirmation affirmation of of Dr. Thomas Thomas Gouge, Gouge, a board board certified certified surgeon surgeon and a professor professor of of surgery surgery at New New York York University University School School of of Medicine. Medicine. Dr. Gouge Gouge states states that that he reviewed reviewed plaintiffs plaintiff s hospital hospital records, records, the pleadings, pleadings, the bill of of particulars, particulars, the supplemental supplemental bill of of particulars, and the particulars, the transcripts transcripts of of deposition deposition testimony testimony by the the parties. Gouge opines, opines, with with a parties. Dr. Gouge reasonable reasonable degree degree of of medical medical certainty, certainty, that that the the care care and treatment treatment provided provided to plaintiff plaintiff by Dr. Connolly Connolly and Dr. Chiu Chiu did not not depart depart from from accepted accepted medical medical practice practice and was was not not a cause cause of of plaintiffs plaintiffs alleged alleged injury. injury. He states states that that Dr. Connolly Connolly was was a second-year second-year surgical surgical resident resident working working under under the direction direction and supervision November 15, supervision of of Dr. Denoya Denoya on November 15,2013 direction and and supervision supervision of of Dr. 2013 and under under the the direction Bergamaschi November 16, 2013 and November Bergamaschi on November 16,2013 17,2013. He further states that Dr. Chiu was November 17, 2013. further states that Chiu was working working under under the direction direction and and supervision supervision of of Dr. Bergamaschi Bergamaschi on November November 16, 2013. 2013. He explains explains that that the typical typical practice practice in teaching teaching hospitals, hospitals, such such as Stony Stony Brook Brook University University Hospital, Hospital, is for the resident resident to physically physically examine examine the patient, patient, complete complete a medical medical history, history, present the case case to the attending attending present the physician, and then physician, then develop develop a treatment treatment plan. explains that that the attending attending physician performs plan. He explains physician performs an independent independent evaluation evaluation of of the patient patient and confirms confirms the treatment treatment plan, plan, "as "as it is the attending attending physician physician who is ultimately ultimately responsible responsible for the patient's patient's evaluation evaluation and plan plan of of care." care." Further, Further, he states states that that it is "always "always the attending attending whose whose diagnosis diagnosis controls controls the situation." situation." Dr. Gouge Gouge states states that that the aforementioned aforementioned process is the standard practice for training process standard practice training residents residents at teaching teaching hospitals hospitals in the the New York Metropolitan New York Metropolitan region. region. Dr. Gouge Gouge recounts recounts the the examinations examinations and findings findings made made on each each day plaintiff plaintiff was was in the hospital, hospital, and recites recites the treatment treatment plan plan and medications medications given given to plaintiff. plaintiff. He opines, opines, with with a reasonable reasonable degree degree of of medical medical certainty, certainty, that that Dr. Bergamaschi Bergamaschi did not not deviate deviate from from normal normal practice practice by discharging discharging plaintiff on November plaintiff November 17, 2013. 2013. He states states that that there there was was no definitive definitive proof plaintiff had active proof that that plaintiff had active pneumonia when pneumonia when he was was discharged discharged from the hospital hospital based based on the results results of of the the multiple multiple tests tests and the "trending "trending figures figures of of his vital vital signs signs and and lab values," values," and that that he could could have have developed developed it after after he left Stony Brook Brook University University Hospital. Hospital. Stony [* 5] 5 of 6 FILED: SUFFOLK COUNTY CLERK 05/22/2017 12:20 PM '- NYSCEF DOC. NO. 89 INDEX NO. 064162/2014 RECEIVED NYSCEF: 05/22/2017 Eisman v Denoya Denoya Eisman Index No. 14-64162 14-64162 Index Page 6 Page The testimony parties and the affirmation prima facie, that the testimony of of the parties affirmation of of Dr. Gouge Gouge establishes, establishes, prima conduct of of Dr. Connolly Connolly and Dr. Chiu Chiu was in accord accord with with acceptable acceptable medical medical practice practice and was not a conduct proximate cause of ofplaintiffs injuries. It also establishes establishes that that the movants movants were were working working under plaintiff's injuries. under the proximate cause direction and supervision supervision of of attending attending physicians whose conduct conduct did not so greatly greatly deviate deviate from normal normal direction physicians whose practice (Soto vAndaz, v Andaz, 8 AD3d AD3d 470, 470,779 Having established established their their entitlement entitlement to practice (Soto 779 NYS2d NYS2d 104). Having summary judgment, movants shifted shifted the burden raise a triable triable issue issue of of fact. In summary judgment, the movants burden to plaintiff plaintiff to raise opposition to the motion, motion, plaintiff submits the affirmation affirmation of of Dr. David David Mayer, Mayer, a board certified general general opposition plaintiff submits board certified surgeon and a professor of surgery surgery at New York Medical Medical College. College. Dr. Mayer Mayer states states that that he has treated treated surgeon professor of New York hundreds of of patients with Crohn's Crohn's disease disease with with and without without fistulization. fistulization. He states states that that he reviewed reviewed hundreds patients with plaintiff hospital records, records, the pleadings, of particulars, transcripts of of deposition deposition testimony testimony particulars, the transcripts plaintiffss hospital pleadings, the bill of by the parties, affirmation of of Dr. Thomas Thomas Gouge. Gouge. Dr. Mayer Mayer opines, opines, with with a reasonable reasonable degree degree of of parties, and the affirmation medical certainty, certainty, that that it was a "gross "gross deviation deviation from standard standard of of care" care" for plaintiff discharged medical plaintiff to be discharged hospital with with an infection infection from an unknown source, and a departure departure from from acceptable acceptable medical medical from the hospital unknown source, practice discharge plaintiff from the hospital hospital without without obtaining obtaining the results results of of the cultures. cultures. Dr. Mayer Mayer practice to discharge plaintiff from opines that that the movants' movants' differential differential diagnosis diagnosis should should have have included included the the more more obvious obvious diagnosis diagnosis of of opines atelectatic pneumonia, that it was was a departure departure from acceptable acceptable practice broader atelectatic pneumonia, and that practice to fail to provide provide a broader antibiotic coverage. coverage. He opines opines that that the oral Ciprofloxacin Ciprofloxacin given given to plaintiff was "woefully "woefully inadequate," inadequate," antibiotic plaintiff was should have have been given intravenous intravenous antibiotics antibiotics such such as Zosyn, Zosyn, Levaquin Levaquin and Vancomycin. Vancomycin. and that he should been given opines that that plaintiffs symptoms on November 17,2013 of hypoxemia, substantial substantial bilateral lower plaintiffs symptoms November 17, 2013 ofhypoxemia, bilateral lower He opines atelectasis, elevated elevated white white blood count, and fever are incompatible incompatible with with a urinary infection. Dr. lobe atelectasis, blood cell count, urinary infection. Mayer opines opines that that if if the movants movants had had started started the broad spectrum antibiotic antibiotic coverage coverage on November broad spectrum November 16, Mayer 2013, plaintiffs would not have have progressed "life-threatening respiratory respiratory compromise compromise plaintiffs pneumonia pneumonia would progressed to "life-threatening 2013, necessitating his readmission readmission to St. Charles Charles Hospital Hospital on November 2013." In Dr. Mayer's Mayer's opinion, opinion, necessitating November 18, 2013." instruction from their their supervising supervising attending attending to send Mr. Eiseman Eiseman home home while while suffering suffering from "serious "serious the instruction untreated "critical urine sputum cultures" cultures" were were even even reported reported "was "was so clearly clearly untreated pneumonia" pneumonia" before before his "critical urine and sputum contraindicated by normal normal practice that ordinary ordinary prudence required Drs. Connolly Connolly and Chiu Chiu make make inquiry inquiry contraindicated practice that prudence required correctness." Dr. Mayer Mayer opines opines that that the plaintiff discharged from from the hospital into its correctness." plaintiff was discharged hospital prematurely, prematurely, such decision decision by the attending attending physicians "so greatly greatly deviated deviated from from normal and such physicians "so normal practice." practice." expert affirmation affirmation of of Dr. Mayer Mayer raises raises triable triable issues issues of of fact. "Summary "Summary judgment judgment is not The expert appropriate in a medical medical malpractice malpractice action action where where the parties adduce conflicting conflicting medical medical expert expert appropriate parties adduce opinions" (Feinberg (Feinberg v Feit, AD3d 517, 519, 806 NYS2d Dept 2005]). 2005]). It is evident evident that that the opinions" Feit, 23 AD3d NYS2d 661 [2d Dept conflicting affirmations affirmations of of Dr. Mayer Mayer and Dr. Gouge Gouge raise raise credibility credibility issues issues properly determined by a conflicting properly determined trier of of fact (Leavy (Leavy v Merriam, AD3d 636, 20 NYS3d Dept 2015]; 2015]; Kunic 121 Merriam, 133 AD3d NYS3d 117 [2d Dept Kunic v Jivotovski, Jivotovski, 121 trier AD3d 1054, 1054,995 Dept 2014]; 2014]; Loaiza AD3d 951,968 951,968 NYS2d Dept AD3d 995 NYS2d NYS2d 587 [2d Dept Loaiza v Lam, Lam, 107 AD3d NYS2d 548 [2d Dept 2013]). Accordingly, Accordingly, the motion motion of of defendants defendants Dr. Connolly Connolly and Dr. Chiu Chiu or summary summary judgment judgment in 2013]). their favor favor is denied. denied. their Dated: Dated: FINAL DISPOSITION DISPOSITION FINAL [* 6] X 6 of 6
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