Nolin-Strassburg v Bashant

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[*1] Nolin-Strassburg v Bashant 2018 NY Slip Op 51843(U) Decided on December 14, 2018 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 14, 2018
Supreme Court, Warren County

Corina J. Nolin-Strassburg and Fred Strassburg, Plaintiffs,


Jennifer Bashant, M.D., Kathryn O'Keefe, M.D. and Womens Care in Obstetrics and Gynecology, P.C., Defendants.


LaFave, Wein & Frament, PLLC, Guilderland (Cynthia S. LaFave of counsel), for plaintiffs.

Maguire Cardona, P.C., Albany (Amanda Kuryluk of counsel), for defendants.
Robert J. Muller, J.

Defendant physicians and their professional practice move for summary judgment dismissing the complaint in this medical malpractice action. In general defendants argue that they are entitled to summary judgment because the evidence shows that the treatment provided complied with the relevant standards of care and that they did not negligently cause injuries to plaintiff Corina J. Nolin-Strassburg (hereinafter plaintiff). The motion is supported with plaintiff's medical records, the depositions of parties and certain non- parties, and by affidavits of defendants Jennifer Bashant, M.D. and Kathryn O'Keefe, M.D., with each offering expert opinions outlining the relevant standards of care and the precise manners in which neither deviated from those standards. In substance, plaintiff in global fashion alleges defendants deviated from the relevant standards of care by failing to appropriately examine, diagnose and treat her medical conditions, which included recurrent dysfunctional uterine bleeding, failed to obtain informed consent prior to proceeding with a laparoscopic-assisted vaginal hysterectomy, failed to warn of the risks and complications of the procedure, which included the risk of injury to the rectum, failed to refer plaintiff to a specialist for the hysterectomy, perforated the rectum during surgery, and failed to have a colo-rectal or general surgeon present to assist. Plaintiff also asserts in her bill of particulars that defendants failed to timely diagnose the injury to plaintiff's rectum.

The " 'essential elements of medical malpractice are (1) a deviation or departure from [*2]accepted medical practice, and (2) evidence that such departure was a proximate cause of injury' " (Howard v Stanger, 122 AD3d 1121 [2014], lv dismissed 24 NY3d 1210 [2015], quoting Wexelbaum v Jean, 80 AD3d 756, 757 [2011] [internal quotation marks and citations omitted]). In moving for summary judgment, defendants must make a prima facie showing that they "did not depart from good and accepted medical practice or that any departure did not proximately cause plaintiff's injuries" (Ducasse v New York City Health & Hosps. Corp., 148 AD3d 434, 435 [2017]). In order to rebut this showing and survive summary judgment, a plaintiff "must submit evidentiary facts or materials" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), typically through expert testimony, and "demonstrate the existence of a triable issue of fact" (id.). Plaintiff's expert testimony must rebut the prima facie showing made by defendants and "must demonstrate 'the requisite nexus between the malpractice allegedly committed' and the harm suffered" (Dallas-Stephenson v Waisman, 39 AD3d 303, 307 [2007], quoting Ferrara v South Shore Orthopedic Assoc., 178 AD2d 364, 366 [1991]; accord Anyie B. v Bronx Lebanon Hosp., 128 AD3d 1, 2 [2015]; see Stukas v Streiter, 83 AD3d 18, 30 [2011]).

Defendants have elected to meet their burden on this motion by submitting their own affidavits describing the facts in specific detail and opining that the care provided did not deviate from the described applicable standards of care (see Cole v Champlain Valley Physicians' Hospital Medical Ctr., 116 AD3d 1283, 1285 [2014]; LaFountain v Champlain Val. Physicians Hosp. Med. Ctr., 97 AD3d 1060, 1061, [2012]; Martino v Miller, 97 AD3d 1009, 1009-1010 [2012]). The affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific, and factual in nature and does not simply assert in conclusory form that the physician acted within the accepted standards of medical care (see Webb v Scanlon, 133 AD3d 1385, 1386 [2015]; Sloane v Repsher, 263 AD2d 906, 908 [1999]; Machac v Anderson, 261 AD2d 811, 812 [1999]; Kelly v St. Peter's Hospice, 160 AD2d 1123, 1124 [1990]). Such affidavits must "address each of the specific factual claims of negligence raised in [the] plaintiff's bill of particulars" (Webb v Scanlon, 133 AD3d at 1386, quoting Wulbrecht v Jehle, 89 AD3d 1470, 1471 [2011]).

Bashant opines that the standard of care to properly diagnose and treat plaintiff's medical conditions required a thorough physical examination followed by a transvaginal and transabdominal pelvic ultrasound, labs, and a scheduled return following the results of that ultrasound which ultimately demonstrated an 8 centimeter uterine fibroid. This led to discussions with plaintiff, another standard of care, relative to several treatment options including a uterine artery embolization, a medication trial, as well as the possibility of a hysterectomy—the latter as a definitive management for her uterine fibroid. Bashant opines that these identified standards of care were met.

Plaintiff opted for surgery and signed a consent for medical and, or, surgical care, with written acknowledgment that she had been advised of the risks, benefits, and alternatives of the procedure. The consent which carries plaintiff's signature recites potential complications including bowel injuries which could lead to the need of a colostomy—as happened here. Throughout the surgery Bashant was the lead surgeon and O'Keefe assisted. During surgery Bashant describes attempting to enter the posterior cul de sac of the peritoneum vaginally and encountering difficulty which prevented her from sufficiently visualizing the peritoneal cavity with the laparoscope due to a bulky uterus. At this point Bashant converted the surgery from a [*3]laparoscopy to an open laparotomy. With the abdomen now open there was still some difficulty visualizing the posterior cul de sac requiring Bashant to lift the uterus out of the pelvis for better visualization and finding what she describes as "an anatomic abnormality" with the rectum pulled up out of its normal position and attached by an extensive, dense adhesion to the posterior cul de sac of the peritoneum and part of the lower cervix and upper vagina. At this point the bulk of the fibroid uterus was removed although the cervix remained.

Following removal of the fallopian tubes and uterus Bashant, while she could not see a perforation of the bowel at that time, questioned whether plaintiff had sustained a tear of the rectum. This was inconclusively pursued with O'Keefe performing a rigid proctoscopy to determine whether or not there was a tear. In light of the suspicion of injury a general surgeon was called to the operating room. With the general surgeon present Bashant completed removing the cervix and closed the vaginal cuff. With the cervix gone the surgeon was able to identify a tear in the anterior rectum. After confirming the tear a colo-rectal surgeon was also summoned intraoperatively and recommended the dissection of the rectum down to the level of the injury and performing an end colostomy, allowing for a subsequent repair of the rectal tear. Following the colostomy Bashant assisted the general surgeon with the closure of plaintiff's abdomen.

Bashant adequately describes the standards of care applicable to these procedures, the manner in which she adhered to those standards, and sufficiently references her extensive operative notes which thoroughly describe the surgery and its complications.

Insofar as O'Keefe is concerned there are no facts in the record indicating she participated in any aspect of the pre-operative care provided to the plaintiff, that she played any role in the decision to proceed with a laparoscopic-assisted vaginal hysterectomy nor the decision to convert it to an open laparotomy. The medical records do not indicate that O'Keefe performed any of the surgical processes.

Plaintiff nevertheless argues that O'Keefe deviated from the standards of care by improperly performing the laparoscopic-assisted vaginal hysterectomy, by causing plaintiff to suffer from a perforated rectum, by failing to examine the site for plaintiff's hysterectomy, by failing to identify all anatomy around the site of the hysterectomy, by failing to identify that the rectum was extensively enlarged up to the uterus, by taking an improper approach to surgical dissection of the colon where it was adherent to the posterior aspect of the uterus and vagina, by performing a sharp dissection in the area of the cul de sac without being able to see where dissection was being done, by failing to obtain adequate and appropriate exposure of the surgical site before dissecting the cul de sac, by failing to use blunt dissection to lyse the adhesions, by using surgical scissors for dissection and lysis of adhesions when the area of the surgery could not be visualized directly, and by undertaking a surgical approach that was inappropriate and unreasonably risky for complications, including a bowel perforation.

I find that defendants have made a prima facie showing sufficiently so that the burden shifts to plaintiff to prove by admissible evidence—including expert medical proof—that there is a material, triable issue of fact (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Giambona v Stein, 265 AD2d 775, 776 [1999]). Defendants have met their initial burden of establishing entitlement to summary judgment by presenting, in admissible form, factual and evidentiary support for their medical opinions. This factual proof consists of their affidavits, deposition testimony, and medical records sufficient to rebut the claim of [*4]malpractice and establish that they complied with the accepted standards of care (see Suib v Keller, 6 AD3d 805, 806, [2004]). Their evidence also establishes that a bowel injury, as occurred here, is a known complication of the procedure that plaintiff underwent and that defendants timely and properly suspected, investigated, diagnosed and—with the assistance of a general surgeon—treated the injury to plaintiff's bowel (see Martino v Miller, 97 AD3d 1009, 1010 [2012]; Derusha v Sellig, 92 AD3d 1193, 1194 [2012]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Menard v Feinberg, 60 AD3d 1135, 1137 [2009]).

In opposition plaintiff submits an affidavit from a physician board-certified in obstetrics and gynecology who opines based upon some of the same admissible evidence relied upon by defendants that when Bashant encountered an enlarged uterus with dense adhesions it was a deviation from the standard of care to have continued vaginally. Stated otherwise, it was a direct violation of the standard of care for Bashant, with knowledge of the adhesion and the enlarged uterus, to proceed to attempt to perform the vaginal portion of the procedure without adequate visualization of the area she was dissecting, and that this proximately caused the negligent perforation of plaintiff's rectum requiring a colostomy and subsequent rectal resection. The expert fails to rebut defendants' assertion that a bowel injury is a known complication. The plaintiff's expert opines that the injury to the bowel had occurred during the vaginal portion of the surgery as there was "a mild amount of erythema right where the adhesion was connected to the peritoneum." The opinion is that the observable presence of an erythema is evidence that this tear had to have occurred during the vaginal portion of the surgery. This opinion, however, is not otherwise corroborated although "opinion evidence must be based on facts in the record" - or personal (in this case expert) knowledge that presence of an erythema is a well recognized harbinger of a bowel injury (Hambsch v. New York City Tr. Auth., 63 NY2d 723, 725, [1984] [internal quotation marks omitted]; see Sample v. Yokel, 94 AD3d 1413, 1414 [4th Dept. 2012]). I am more persuaded that the expert's failure to rebut or comment upon Bashant's affirmative factual testimony on this motion that "[a]t no point was stool seen coming out of the vagina during the vaginal portion of the case" demonstrates the injury did not occur at this earlier point. Then again, the timing is irrelevant in any event since the unrebutted proof is that such injuries are a known and disclosed complication that can occur in the absence of negligence in the course of this particular surgery.

With specific reference to O'Keefe this expert concludes that having "assisted in this procedure [she] shares responsibility in this case." Plaintiff's expert offers no basis for this opinion. Viewing the evidence in the light most favorable to plaintiff and affording her the benefit of every favorable inference there is no competent, nonspeculative expert evidence that O'Keefe, who was the assistant surgeon and played no direct role in plaintiff's preoperative or surgical care, committed any departures from accepted medical practice or could have prevented the alleged departures committed by Bashant. There is no evidence that O'Keefe exercised any control over Bashant and no evidence tending to show that O'Keefe caused any injury to plaintiff (see Kavanaugh v Nussbaum, 71 NY2d 535, 546-547 [1988]; Pol v Our Lady of Mercy Med. Ctr., 51 AD3d 430, 431 [2008]).

Defendants have also made a prima facie showing that they did not fail to obtain plaintiff's informed consent to the surgery. Bashant explained the risks and complications associated with the surgery to plaintiff and she signed a written consent form which stated, inter [*5]alia, that she had been fully informed of the expected benefits and potential complications of the procedure, as well as the alternatives thereto (see Vodos v Coopersmith, 85 AD3d 909, 910 [2011]; Johnson v Staten Is. Med. Group, 82 AD3d 708, 709 [2011]; Etminan v Sasson, 51 AD3d 623, 623-624 [2008]; Ortaglia v Scanlon, 35 AD3d 421, 421 [2006]). Plaintiff has failed to raise a triable issue of fact in opposition (see Public Health Law § 2805-d; see Schel v Roth, 242 AD2d 697, 698 [1997]).

Finally, the fact that plaintiff sustained an injury is not evidence of a departure from accepted medical practices (see Johnson v St. Barnabas Hosp., 52 AD3d 286, 288 [2008], lv denied 11 NY3d 705 [2008]).

Therefore, having considered the Affidavit of Amanda Kuryluk, Esq. sworn to September 27, 2018, together with exhibits "A" through "O" attached thereto and a Memorandum of Law; the Affidavit of Jennifer Bashant, M.D. sworn to September 24, 2018; the Affidavit of Kathryn O'Keefe, M.D. sworn to September 20, 2018, the opposing Affirmation of Cynthia S. LaFave, Esq. dated November 7, 2018 and Memorandum of Law; the opposing expert Affidavit sworn to November 7, 2018 with exhibit "A" attached thereto; and the reply Affidavit of Amanda Kuryluk, Esq. sworn to November 15, 2018, and oral argument having been heard on December 14, 2018 with plaintiffs on submission and Maguire Cardona, P.C., Amanda Kuryluk of counsel Esq. appearing on behalf of defendants, it is hereby

ORDERED that defendants' motion for summary judgment is granted in its entirety and the complaint dismissed; and it is further

ORDERED that any relief not specifically granted has nonetheless been considered and is denied.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated September 21, 2018 and the redacted Affidavit with exhibit. Counsel for defendants are directed to obtain a filed copy of the Decision and Order for service with notice of entry in accordance with CPLR 5513.

Dated: December 14, 2018

Lake George, New York