Guido v Fielding

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Guido v Fielding 2018 NY Slip Op 33876(U) December 20, 2018 Supreme Court, Bronx County Docket Number: 0302654/2011 Judge: Joseph E. Capella 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. [* 1] SUPRIMl"COURT or TBISTATB OJ' NEW YORK COUNTY or BRONX, PAR'I': 23 --------------------------xIndex Ht. ~ -· £. 0302654ll011 e.. \ Hon. JOSBPll ·CAPELLA, JIEU)ING,GIORGB MJ>. --------------------------:x Jallioe Sapaw ~ Tbe fi>Dowfng papen llDDlbered I 1D ~Raul OD dda motion, (Seq. No, 4) b syMMARYJUDGMRNT DpgNDANT. noticed on Apmf 22 20U. Upon the foregoing papen, his cmlcred tbatthls motion Is ~ \Y\ ~ u;,~ ~~~~bf'~~ .. j a I I. -:: ' ... .; i . . - ; :· -. ·-· -·-· . ··.·.. ..... ---·-·· .. IJ ;.. -1-.amx~-· ONB...:..:_:·:.:=~=-::_:._:...:_~;a~CASBMBDiSj~~~m;a;;;;;:::==io~CASB~iftt~~ 2. M0110NIS..." - - - · - -..· 3, amc:KIFAPPROPRIA'I'B--- a ORANTBD aDDUBD a CIRANTBDINPART a a SBTJUOllDBR a 8UBMl'l'OltDBR a SClllllDU:S a PIDUCIAllY APrOINTMBNT a 1tBPBUB APPOIN1'MBNT [* 2] . : • ·' !.. :·.. : .:· ·; /,;.. SUPREME COURI' OP TD STATB OP NEW YORK COUNTY 01 BRONX: IA PART 23 ----------------------~-----:x MARIA OUIDO AND BOWIN oumo. PlafntffBI, • ~,. . Index No.: 3026S4/l 1 Decision/Order OBOROB FIBIDlNO, M.D., CHRISTINB RBN-FIBLDING, MD., GASPAR ROSARIO, N.P.. SASHA STILBS, M.D., RANDAHAMADBH, M.D., NYU LANOONB MBDICAL CBNTBR, NYU SCHOOL OP MBDICINB, and NYU SURGICAL ASSOCIATBS, ..·. ·. .. Defendants, ----------------------------X NUMBBRBO Annexed------------- PAPERS NodoeofModoDIDdAftldavlt Amwering Aftldn!t llld Bxhfbha RepJyfng Aftklavh ad BlllJblts UPON nm POR.BOOJNO C1l'BD PAPBRS, nus MOTION IS DECIDBD AS FOLLOWS: I· 2 3 ... .. . . By notice ofmotion defmdants, Oeorge Piclctin& M.D. (Dr. Fielding), .Cbristine Rm·Fielding. M.D. (Dr. Ren), OasparRosarlo, N.P. (NP Rdsario), Sasha Stiles, MD. (Dr. Stiles), NYU Langone Modica! Center and NYU School ofMedicine, move for summary judgment (CPLR 3212) and dismiual ofplaintifti' complaint. At tho~ tho insCant motion is grant.ed without opposition wi1b respect to Dr. Ren. NP Rosario and Dr. Stiles,..end this·aotion is dismissed as against those defendants. Clahm for negligent hlrfnw'credontiallng. wbidl were not opposed by p~ainti~ are deemed abandoned (Nt v · NYU Langone Med Ctr., 157 AD3d 549 [l•Dept 2018)). this is an action based on claims of medical malpractice, and a derivative claim for loss ofservices, brought in connection to plainti1f Maria Guido's (Mrs. Guido) LapBand surgery which took place on August 17, 2009. Tho complaint alle8es causes of . ac:tion for failure to obtain informed consent. inappropriate placement ofthe first port during the Lap Band procedure on August 17, 2009, and &ilure to diagnose and repair a: small bowel perforation lntraoperativoly on August 17, 2009. Mrs. Outdo alleges tbit . : ... . [* 3] . Dr. Fielding's negligence caused her to sut&.r a paforated small intestino, bowel leakage, post-operative Infection, multiple surgeries, subsequent hemfas and pain. The defendants' motion for summary judgment is supported by, lntsr alla, die aflinnation ofDr. Shik<nt a specialist in bariatric IUIBa'Y who reviewed the pleadiop, deposition testimony and medical records fiom all of Mrs. Ouido's medical providers. Or. Shikora opines that 1ho three consent reJated docmlents contamed fn the medical .. records coupled with deposition testimony establish. to a reasonable degree ofm~ ca1ainty, that Mrs. Guido's informed consent for the Lap Band procedure was propedy obtained. Dr. Shlkora Indicates that Dr. Fielding did not deviate from tho sbindard of care in attempting to Initially use a laparoscoplc approach and then, once it was intraoperadvely discovered that 1he adhesions were too dense, convert to an open procedure. He opines that, in using this teclmique, Dr. Floldlng demonstrated proper and appropriate appreciation for Mra. Ouldo's history ofabdomfnal surgeries. And this .. approach afforded Dr. Fielding direct visualiation for lyaing and divldJng adhesions, and was specifically formulated to reduce the risks associated with Mrs. Ouldo's surglpd ; history. .. • Dr. Shik.ora opines that bowel perforation is a known and accepted risk of 41DY ... abdominal surgery and can occur even in the absence of negligence. 'Ibis expert ,: f indicates that Dr. Fielding actually exceeded the standard of care by Inspecting an~ :.; ... palpating the bowel despite a lack of ln1raoperative indications ofa bowel perforati~ He offers that it was not a deviation for Dr. Pioldfng to not discover an injury tO ~ ~ boVlel during a proper inspection as the paforation could have developed later. Based on the foregoing, defendants have made a prima flcie showing oftheir entitlement to summary judgment on the informed consent and mediQ&l malpractice claims. (Anyle B. v Bronx Lebanon Hrup., 128 AD3d I . . .·' Cl" Dept 2015).) The burden now shifts to•plalntiffiJ to come forward with aclm.issible proofto demonstr&t8 that Dr. Fielding did in &Ct commit medical malpractice and that the malpractice was . . the proximate came of plaintifrs injuries (Scalisi v OberlantlR. 96 AD3d 106 [t" Dept 2012)). .. 2 'I" . i ' ... r i ! . : [* 4] In support of their opposition, plafntif& ofter an expert affirmation 1iom a board certified general surgeon. The expert states that based on Mn. Ouido's testimony; Dr. · Fielding departed from what a reasonable medical practitioner would disclose whea he ··• failed to inform Mn. Oufdo that, givai her surgical ldstmy, performing the procedure laparoscopically via the umbilicus placed he.rat an increased risk for bowel perforadon. Additionally, as per Dr. Fielding's deposition, be chose not to inform Mm. Guido tliaf iia. an alternative to doing tho procedure laparoscopically via the umbilicus, the port COutd be inserted at the ninth intercostal space or the surgery could be performed open from the outset. According to the expert, having been informed of all the risb and alternatives, a reasonably prudent penon in Mrs. Guido's position would not have agreed to the procedure laparoscopically via the umbilicus; and Dr. Fielding's &ilure to obtain infonned consent caused Mrs. Guido to undergo the procedme in this manner and suffer the injuries alleged. Given the aforementioned, plaintlfti have raised a question of fact . : .· through their expert's affirmation as to the informed consent claim (Motlchka " 0H9', ' ·:• .. 279 AD2d 310 [111 Dept2001]). . : Next, plaintiftS' expert clahm that during the laparoscopfc approach Dr. Fi~lding • 1 • • perforated Mrs. Guido's bowel, and that Dr. Fielding departed from good and accepted ;:.. .. standards by attempting a laparoscopio approach via the umbWcua on a patient with ..''·a ... biat.ory of prior abdominal surgeries and, therefore, likely dense adhesions. The prcscace • : .• r •• of adhesions requires men force to insert the laparosoopic tools, and blocks a ~·s view ofthe field, thereby increasing the likelihood of camlng an inadvertent injury to the . . bowel. Wb~ as here, C>pJ><Wng experts diaagree on material issues offact, those issues must be resolvecl by the trier of fact, thereby J>fCC?luding summary judsment on the issue of attempting a Iaparoscopic approach via the umbilicus (Frye v MonUjlore, 10 AD3d 1S (Pt Dept 2009]). ,• , I Plaintiffil' expert affirms that Dr. Fielding departed from tho standird ofc8rc by falling to inspect the bowel or, if be did inspect the bowel, properly inspect it, identify the penoration and repair it lntraoperatively. In reply, Dr. Shikora maintains that during 1he · . .· .. ~ 3 .. . [* 5] • E ;. operation there were no signs of a perforation, but dlat Dr. Fielding nonetheless property inspected and palpated the bowel and did not discover any iltjury. Dr. Shikora argues · that plalntlffs' expert failed to offer any evidence to support that tho perforation existed or was even discoverable intraoperatively. Plaintiffs' axpertdocs not address Dr. Shikora's conclusion that Mn. Guido exhibited no symptoms that should have cadscd Or. Fielding to suspect aperforation. (Lbnmer v Ronl(eld, 92 AD3d 609 [I" Dept 2012].) Accordingly, defendants' motion for summary judgment ia granted only to the~ of . dimnissing plaindtfs' cause ofaceion for the failure to diagnose and repair the perrOiatkm ·. intraoperatively on August 17, 2009. Defendants are directed to serve a copy ofthis decision/order with notice ofentry by first class mail upon all parties widlin 30 days of receipt of same. This comtitutes the decision and order ofthis court. December 20. 2018 Dated .: •I • ; •' ... :. .. •. 4 ·.

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