Astacio v Remy

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[*1] Astacio v Remy 2018 NY Slip Op 51420(U) Decided on October 9, 2018 Supreme Court, Bronx County Capella, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 9, 2018
Supreme Court, Bronx County

Regino Astacio, Plaintiff,




Attorney for Plaintiff:

Irving Gertel, Esq.

Kagan & Gertel, Esqs.

1575 East 19th Street

Brooklyn, New York 11230


Attorney for Dr. Abbas & Bronx-Lebanon:

Danielle M. Alpaugh, Esq.

Heidell, Pittoni, Murphy & Bach, LLP

99 Park Avenue

New York, New York 10016


Attorney for Dr. Remy:


440 Ninth Avenue

New York, New York 10001
Joseph E. Capella, J.

The following papers numbered 1 to 3 read on this motion, noticed on June 21, 2018, and duly submitted August 21, 2018, on the Motion Calendar of __________.






The defendants, Dr. Abbas and Bronx-Lebanon, seek summary judgment (CPLR 3212) and dismissal of this medical malpractice action in which the plaintiff alleges, inter alia, that these defendants were negligent in the performance of a June 2016 colonoscopy by failing to timely diagnose and treat a colon perforation and failing to obtain an informed consent. The plaintiff was admitted to the Gastrointestinal Endoscopy Unit at Bronx Lebanon on June 29, 2016, by his physician, Dr. Prospere Remy. Dr. Abbas, who was in the Gastroenterology Fellowship program, performed the colonoscopy under the direct supervision of Dr. Remy. The procedure's findings were normal perianal and digital rectal examinations, scattered small and large-mouthed diverticula in the sigmoid colon, descending colon, transverse colon and ascending colon, and non-bleeding external and internal small hemorrhoids were found during retroflexion. After the procedure, plaintiff was observed in the recovery room for several hours, where he complained of abdominal pain and discomfort, and a physical exam revealed a soft abdomen and bowel sounds. The recovery room nurse rolled plaintiff back and forth to ensure he was passing gas. The plaintiff did not vomit and had no change in his vital signs. He ate and drank, and eventually discharged later that day.

On July 2, 2016, plaintiff sought follow-up care with his primary care physician, Dr. Diaz, complaining of heartburn, nausea and dyspepsia. The physical exam revealed, inter alia, normal vital signs, and plaintiff was described as alert, pleasant and in no acute distress. He was prescribed an antacid liquid suspension and sent home. Only July 3, 2016, plaintiff presented to New York Presbyterian Hospital where he was diagnosed with a colon perforation and underwent an open right colectomy.

A summary judgment movant must make a prima facie showing of an entitlement to summary judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. (Alvarez v Prospect, 68 NY2d 325 [1986].) Therefore, as the movants, the defendants, Dr. Abbas and Bronx-Lebanon, must provide evidentiary proof in the form of expert opinions and/or factual evidence which establishes that defendants did not deviate from accepted standards of care and practice, and as such, defendants' conduct was not a proximate cause of plaintiff's injuries. (Fileccia v Massapequa, 99 AD2d 796 [2nd Dept 1984]; affirmed 63 NY2d 639 [1984]). If they do, then the burden shifts to plaintiff to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial. (Alvarez, 68 NY2d 325.) General allegations of medical malpractice that are merely conclusory and unsupported by competent evidence are insufficient to establish the essential elements of medical malpractice and thereby create issues of fact (Candia v Estepan, 289 AD2d 38 [1st Dept 2001]).

In support of their motion Dr. Abbas and Bronx-Lebanon include, inter alia, an expert affirmation from Dr. Gorfine, a licensed physician Board Certified in Internal Medicine, and [*3]Colon and Rectal Surgery. Dr. Gorfine opines to a reasonable degree of medical certainty that the colonoscopy performed was indicated for screening purposes and appropriately performed. Proper measures to protect, inspect and avoid injury to the colon during insertion and withdrawal were taken. And discharge was appropriate because plaintiff demonstrated no signs or symptoms of any complications. According to Dr. Gorfine, while perforation is a known risk of a screening colonoscopy, there is no evidence to suggest that one occurred during the procedure or, if it did, that there were signs of a perforation during the procedure. He also opines that nothing done by the defendants during the procedure increased the risk of an injury to the colon. The defendants properly inspected the colon for injury prior to completing the procedure and did not observe any intra-operative injuries, and there was nothing else that should have been done pursuant to good and accepted medical practice to check for injuries. He further opines that a perforation during a colonoscopy in the absence of negligence can and does occur even when a reasonable physician exercises due care, and in and of itself is not evidence of malpractice.

Dr. Gorfine states that the signs and symptoms of a perforation include severe abdominal pain intensified by movement, nausea, vomiting, decreased bowel sounds, fever, chills, fatigue, decrease in passage of urine/stool/gas, shortness of breath, rapid heartbeat and/or dizziness. The plaintiff testified that he felt relief from his post-surgical abdominal pain prior to discharge and did not vomit while at the hospital. The medical reports reveal that plaintiff's vital signs were normal and he did not complain of dizziness, shortness of breath or a decrease in the passage of urine/stool/gas. Dr. Gorfine opines that general complaints of abdominal pain post-colonoscopy are not unusual and would not require any intervention absent additional clinical findings. He further opines to a reasonable degree of medical certainty that there were no signs or symptoms to cause defendants to suspect a perforation, or warrant keeping plaintiff in the hospital to obtain a CT scan of the abdomen prior to discharge, to medicate post-operatively or to call for a consult/specialist. Based on the aforementioned, Dr. Abbas and Bronx-Lebanon have established an entitlement to summary judgment (Zuckerman v City of NY, 49 NY2d 557 [1980]), thereby shifting the burden to plaintiff to show, inter alia, that defendants departed from accepted standards of practice (Kaffka v NY Hospital, 228 AD2d 332 [1st Dept 1996]).

In opposition, the plaintiff submits an expert affirmation from a physician duly licensed to practice in the State of New York.[FN1] Plaintiff's expert agrees that the colonoscopy was indicated for screening purposes, and further agrees that based on the medical charts, there was no indication that a bowel perforation occurred during the colonoscopy. The expert states, however, that a perforation must have occurred during the colonoscopy based on the intra-operative findings of the repair surgery that took place on July 3, 2016. He states that "those findings can only reasonably be explained as being the result of a colonic perforation that had occurred about 4 or 5 [sic] days prior to the repair surgery. No other explanation is reasonable." He also concedes that "colonic perforation during a colonoscopy is a risk of the colonoscopy procedure . . . The fact that a colonic perforation occurred during the June 29, 2016 [sic] colonoscopy is not evident of malpractice in and of itself." Furthermore, the expert acknowledges that assuming the post-colonoscopy entries in the Bronx-Lebanon records are correct, plaintiff was appropriately discharged after surgery. On the other hand, he states that [*4]assuming plaintiff's "deposition testimony regarding his complaints and symptoms while in Bronx-Lebanon after performance of the colonoscopy are true, his discharge from the hospital may not have been appropriate."

The statement by plaintiff's expert that the perforation must have occurred during the colonoscopy based on the intraoperative findings of the repair surgery, without elaboration or any other proof is mere speculation. (Candia v Estepan, 289 AD2d 38). Moreover, plaintiff's expert concedes that perforation is a known risk, and the fact that it may have occurred during the procedure is not evidence of malpractice in and of itself. In addition, this expert relies upon plaintiff's deposition testimony to suggest that the discharge from the hospital may (emphasis added) not have been appropriate. This inconclusive and nebulous statement fails to point out any specific complaints or symptoms that plaintiff testified to at his deposition that would warrant a delay in the discharge and/or the need for any further work-up (Giberson v Panter, 286 AD2d 217 [1st Dept 2001]).

Lastly, as for the alleged lack of informed consent, there is no dispute that plaintiff signed an informed consent form advising him that Dr. Remy would be assisted during the procedure by Dr. Abbas. Plaintiff's expert concedes that it is common knowledge among medical providers that many medical procedures are performed by residents and fellows at teaching hospitals such as Bronx-Lebanon. He goes on to state that although patients are required to sign consent forms pre-operatively, the signature process is perfunctory. Plaintiff's expert further alleges that "although the risks of the procedure may have been explained to plaintiff," Dr. Remy took advantage of plaintiff's lack of knowledge regarding the practice among medical providers to use residents and fellows. As a general rule, a hospital is not liable for the actions of a private physician, such as Dr. Remy, attending his private patient. (Somoza v St. Vincents, 192 AD2d 429 [1st Dept 1993].) In addition, a hospital is generally not vicariously liable for the act(s) of a resident who follows the instructions of said private attending physician. (Orphan v Pilnik, 66 AD3d 543 [1st Dept 2009].) Neither of these general principals come into play because, as previously discussed, plaintiff did not meet his burden of establishing that defendants departed from accepted standards of practice. (Kaffka, 228 AD2d 332.) Moreover, the sole issue raised by the plaintiff is the alleged failure by defendants to inform him that Dr. Abbas wold be performing the procedure in question. In the end, however, it was the duty of plaintiff's physician, Dr. Remy, and not Dr. Abbas and Bronx-Lebanon to obtain plaintiff's informed consent. (Salandy v Bryk, 55 AD3d 147 [2nd Dept 2008].) Therefore, based on the aforementioned, plaintiff has not met his burden of establishing issues of fact to warrant a trial (Alvarez, 68 NY2d 325), and the instant summary judgment motion by Dr. Abbas and Bronx-Lebanon is granted accordingly. The clerk is directed to enter judgment in favor of Dr. Abbas and Bronx-Lebanon, and dismiss this action as against these defendants.

Dr. Abbas and Bronx-Lebanon, are directed to serve a copy of this decision/order with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.

Dated October 9, 2018


Joseph E. Capella, J.S.C. Footnotes

Footnote 1:The name of the physician is omitted pursuant to CPLR § 3101(d)(i).

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