Chowdhury v Bellevue Hosp. Ctr.

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Chowdhury v Bellevue Hosp. Ctr. 2019 NY Slip Op 33527(U) November 22, 2019 Supreme Court, New York County Docket Number: 805470/2016 Judge: George J. Silver 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. [*FILED: 1] NEW YORK COUNTY CLERK 11/25/2019 02:52 PM NYSCEF DOC. NO. 65 INDEX NO. 805470/2016 RECEIVED NYSCEF: 11/25/2019 Index N!!. 805470/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK, PART 10 ------------~--------------~-------------------------------------}( AMIRUL CHOWDHURY AND SULTANA BEGUM Index N2. 805470/2016 Plaintiffs -againstBELLEVUE HOSPITAL CENTER and NEW YORK CITY HEALTH+ HOSPITALS CORPORATION, Defendants -------------------------------------------------------------------}( HON. GEORGE J. SILVER: In this medical malpractice action, defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION ("defendant") moves, pursuant to CPLR §3212, for summary judgment and an order dismissing the complaint of plaintiff AMIRUL CHOWDHURY ("plaintiff') as against it. Plaintiff opposes defendant's application. BACKGROUND AND ARGUMENTS The crux of plaintiffs claim in this lawsuit is that the medical staff at Bellevue Medical Center ("Bellevue"), one of defendant's facilities, failed to timely administer tPA, a thrombolytic protein involved in the breakdown of blood clots, while plaintiff was a patient in the emergency department on October 1, 2015, when he presented with symptoms of a stroke. To be sure, on October 1, 2015, at approximately 1:00 a.m., plaintiff presented to Bellevue's emergency department with stroke-like symptoms, with a reported onset of 12:00 a.m. A head CT scan, performed within fifteen (15) minutes of arrival, ruled out a brain bleed. At 1:25 a.m., less than an hour and a half after the initial onset of symptoms, hospital staff determined that plaintiff was a candidate for tPA, and, over the course of the next hour, advised him of the benefits, risks, and alternatives of treatment. The medical records reveal that Bellevue staff subsequently explained to plaintiff that tP A is a thrombolytic that can reduce the neurological deficits caused by a stroke, but only under specific circumstances. At the time of the alleged malpractice, defendant contends that it was accepted within the medical community that tPA could only be used within 4.5 hours from the onset of stroke symptoms. Indeed, defendant argues that tPA is contraindicated where the patient has had hemorrhaging or is at risk of bleeding. Further, the use oftPA, even when indicated, carries serious risks, including internal bleeding and death. Following an informed consent discussion, plaintiff contends that plaintiff consented to the administration of tPA. Defendant challenges plaintiffs position, arguing that plaintiff orally declined the 2 2 of 7 [*FILED: 2] NEW YORK COUNTY CLERK 11/25/2019 02:52 PM NYSCEF DOC. NO. 65 INDEX NO. 805470/2016 RECEIVED NYSCEF: 11/25/2019 Index N2. 805470/2016 administration of tPA. Defendant further states that plaintiff argain declined tPA after an MRI, again within the 4.5-hour window. Based on the foregoing, defendant argues that there is nothing within the record to indicate that defendant, or any staff at Bellevue, committed malpractice by failing to administer tP A to plaintiff. In support of its position that plaintiffs claims are not supported by the evidence, defendant cites to deposition testimony as well as the expert affirmation of board-certified neurologist Stanley Tuhrim, MD ("Dr. Tuhrim") , who opines that the care and treatment rendered by defendant was at all times in accordance with good and accepted medical practice and that nothing that defendant or its staff did, or did not do, was the proximate cause of plaintiffs alleged injuries. Specifically, Dr. Tuhrim explains that to be a candidate for tPA, several criteria must be met, as there are absolute contraindications to its use. Dr. Tuhrim states that in 2015, the window for the administration of tPA was accepted to be 4.5 hours from the onset of symptoms or the last known time when the patient was symptom-free. For this reason, in 2015, Dr. Tuhrim opines that it was accepted in the medical community that tP A could be administered, assuming no other contraindications were present, up to 4.5 hours of the onset of symptoms. Dr. Tuhrim states that as soon as the Bellevue staff determined that a stroke, and more specifically an ischemic stroke involving the narrowing of the arteries of the brain, may have been the cause of plaintiffs symptoms, the standard of care was to perform an immediate CT scan to rule out an intracranial hemorrhage, which is a contraindication to tP A due to the risk of increased bleeding. Dr. Tuhrim further explains that the well-known risks of tPA include, intracerebral hemorrhage, worsening of neurological deficits, and, in some cases, death. To be sure, Dr. Tuhrim opines that the risks may outweigh the possible gains from treatment with tP A for patients with only minimal presenting symptoms. In this case, Dr. Tuhrim highlights that plaintiff was taken for a CT scan within fifteen (15) minutes of his presentation to Bellevue. The CT scan was completed by 1:25 a.m., less than thirty (30) minutes from his presentation to the emergency department. The findings were discussed between Doria Gold, MD ("Dr. Gold") and the radiologist while the study was being performed. Upon plaintiffs return from the CT scan, he was noted to have increased symptoms. At that point, Dr. Tuhrim explains that the record shows that plaintiff was appropriately found to be a candidate for tP A, as the contraindications had been ruled out. Thereafter, Dr. Tuhrim posits that the record showed that the risks, benefits, and alternatives of tP A were discussed with plaintiff. Dr. Tuhrim states, in his medical opinion, that the timing of offering tPA-that is, immediately following the CT scan -was entirely within the standard of care. Despite the fact that plaintiff was offered tPA as soon as treatment was found to be indicated, and well within the 4.5 hour window, Dr. Tuhrim points to indications within that record that plaintiff did not consent to its administration. As such, Dr. Tuhrim concludes that the Bellevue chart unequivocally shows that plaintiff was repeatedly offered tPA, and that the treatment was not given only because plaintiff did not consent. As such, defendant argues that the proof annexed to its motion establishes that plaintiff was timely offered tPA, but that the medication was 3 3 of 7 [*FILED: 3] NEW YORK COUNTY CLERK 11/25/2019 02:52 PM NYSCEF DOC. NO. 65 INDEX NO. 805470/2016 RECEIVED NYSCEF: 11/25/2019 Index NQ. 805470/2016 not administered solely because plaintiff did not consent. As such, defendant states that plaintiffs central claim of negligence is unsupported by the record, thereby warranting dismissal of plaintiffs lawsuit. In opposition, plaintiff contends that defendant's characterization of the hospital records is inaccurate. According to plaintiff, a note by one of defendant's resident physicians indicating that plaintiff did not consent to the administration of tPA is contradicted by plaintiffs sworn deposition testimony that he did consent to the administration of tP A following his discussion with defendant's resident physician. Moreover, plaintiff annexes the expert affirmation of an emergency room physician who opines, based on a review of the medical records and plaintiffs relevant testimony, that plaintiff consented to the administration of tPA, and that defendant and its staff deviated from accepted standards of medical care by failing to treat plaintiffs stroke symptoms with tP A. Plaintiffs expert further states that as a result of the failure to administer tPA, plaintiffs stroke symptoms were permitted to progress, causing him permanent neurological damage in the form of memory loss and right-sided weakness. Defendant's failure, plaintiff argues, deprived plaintiff of a chance and opportunity to minimize the long-term side effects of his stroke. In plaintiffs view, from the time plaintiffs symptoms began at 12:15 A.M., the window to administer tPA was open until 4:45 A.M. Plaintiffs expert disagrees with the conclusions of Dr. Tuhrim, and opines that defendant failed to take advantage of this window even though plaintiff was almost immediately a proper candidate for the administration of tP A. Plaintiff states that defendant's physicians only conversation with plaintiff concerning the administration of tP A occurred after the CT-scan, as the window oftime for effective administration was closing. Accordingly, plaintiff concludes that issues of fact exist to preclude a finding of summary judgment in defendant's favor. In reply, defendant challenge plaintiffs expert affirmation and the conclusions drawn therefrom. To be sure, defendant contends that plaintiffs expert's affirmation is redacted and contains several speculative statements that do not take into consideration the entirety of the record, and plaintiffs purported failure to give consent to the administration of tP A. Defendant's further challenge plaintiffs testimony indicating that plaintiff consented to the administration of tP A by arguing that such testimony is self-serving and specifically tailored to avoid the consequences of judgment in defendant's favor. For these reasons and more, defendant restates its position that it is entitled to judgment in its favor. DISCUSSION In an action premised upon medical malpractice, a defendant doctor or hospital establishes prima facie entitlement to summary judgment when he or she establishes that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not the proximate cause of the injuries alleged (Roques v. Noble, 73 AD3d 204, 206 [1st Dept 2010]; Thurston v Interfaith Med. Ctr., 66 AD3d 999, 1001 [2d Dept. 2009]; Myers v Ferrara, 56 AD3d 78, 83 [2d Dept. 2008]; Germaine v Yu, 49 AD3d 685 [2d Dept 2008]; Rebozo v Wilen, 41AD3d457, 458 [2d Dept 2007]; Williams v Sahay, 12 AD3d 366, 368 [2d Dept 2004]). In claiming that treatment did not depart from accepted standards, the movant must provide an expert opinion that is detailed, specific and factual in nature (see e.g., Joyner-Pack v. Sykes, 54 AD3d 727, 729 [2d Dept2008]). The opinion must be based on facts within the record or personally known to the expert (Roques, 73 AD3d at 207, supra). Indeed, it is well settled that expert testimony must 4 4 of 7 [*FILED: 4] NEW YORK COUNTY CLERK 11/25/2019 02:52 PM NYSCEF DOC. NO. 65 INDEX NO. 805470/2016 RECEIVED NYSCEF: 11/25/2019 Index N!1. 805470/2016 be based on facts in the record or personally known to the witness, and that an expert cannot reach a conclusion by assuming material facts not supported by record evidence (Cassano v Hagstrom, 5 NY2d 643, 646 [1959]; Gomez v New York City Haus. Auth., 217 AD2d 110, 117 [1st Dept 1995]; Matter ofAetna Cas. & Sur. Co. v Barile, 86 AD2d 362, 364-365 [1st Dept 1982]). Thus, a defendant in a medical malpractice action who, in support of a motion for summary judgment, submits conclusory medical affidavits or affirmations, fails to establish prima facie entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Cregan v Sachs, 65 AD3d 101, 108 [1st Dept 2009]; Wasserman v Carella, 307 AD2d 225, 226 [1st Dept 2003]). Further, medical expert affidavits or affirmations, submitted by a defendant, which fail to address the essential factual allegations in the plaintiffs complaint or bill of particulars do not establish prima facie entitlement to summary judgment as a matter of law (Cregan, 65 AD3d at 108, supra; Wasserman, 307 AD2d at 226, supra). To be sure, the defense expert's opinion should state "in what way" a patient's treatment was proper and explain the standard of care (Ocasio-Gary v. Lawrence Hosp., 69 AD3d 403, 404 [1st Dept 2010]). Further, it must "explain 'what defendant did and why"' (id. quoting Wasserman v. Carella, 307 AD2d 225, 226 [1st Dept 2003]). Once the defendant meets its burden of establishing prima facie entitlement to summary judgment, it is incumbent on the plaintiff, if summary judgment is to be averted, to rebut the defendant's prima facie showing (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The plaintiff must rebut defendant's prima facie showing without "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence" (id. at 325). Specifically, to avert summary judgment, the plaintiff must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of the plaintiffs injuries (Coronelv New York City Health and Hosp. Corp., 47 AD3d 456 [1st Dept. 2008]; Koeppel v Park, 228 AD2d 288, 289 [1st Dept. 1996]). To meet the required burden, the plaintiff must submit an affidavit from a medical doctor attesting that the defendant departed from accepted medical practice and that the departure was the proximate cause of the injuries alleged (Thurston, 66 AD3d at 1001, supra; Myers, 56 AD3d at 84, supra; Rebozo, 41 AD3d at 458, supra). Here, defendant's submission of deposition transcripts, medical records and Dr. Tuhrim's affirmation, based upon the same, established a prima facie defense entitling defendant to summary judgment (Balza/av Giese, 107 AD3d 587 [1st Dept 2013]). To be sure, Dr. Tuhrim opines that the care and treatment rendered by defendant was in accordance with good and accepted medical practice and that nothing that defendant or its staff did, or did not do, was the proximate cause of plaintiffs alleged injuries. Specifically, Dr. Tuhrim opines that at the time of the alleged malpractice, it was accepted within the medical community that tPA could only be used within 4.5 hours from the onset of stroke symptoms. Dr. Tuhrim further highlights, based on notations within the record, that tP A was contraindicated during the time when plaintiff was still hemorrhaging or at risk of bleeding. Further, the use of tPA, even when indicated, carries serious risks, including internal bleeding and death. Accordingly, Dr. Tuhrim opines that it was appropriate for defendant to perform an immediate CT scan to rule out intracranial hemorrhaging, which would have contraindicated the administration of tPA due to the risk of increased bleeding. Dr. Tuhrim explains that defendant performed a CT scan without delay, and that plaintiff subsequently discussed the benefits and risks oftPA administration with members of defendant's staff. Dr. Tuhrim, referring to the medical records, then 5 5 of 7 [*FILED: 5] NEW YORK COUNTY CLERK 11/25/2019 02:52 PM NYSCEF DOC. NO. 65 INDEX NO. 805470/2016 RECEIVED NYSCEF: 11/25/2019 Index N2. 805470/2016 submits that following those discussions, plaintiff did not consent to the administration of tP A. As such, defendant argues that the proof annexed to its motion establishes that plaintiff was timely offered tP A, but that the medication was not administered solely because plaintiff did not consent. As defendant's submission and expert affirmation are detailed and predicated upon ample support within the record, defendant has shown that plaintiff was treated in full accord with good and accepted standards of medical care, and that no actions on its part proximately caused plaintiffs alleged injuries. In opposition to defendant's prima facie showing, plaintiff raises triable issues of fact to preclude summary judgment. Indeed, plaintiff cites to his own testimony as evidence that he did, in fact, consent to the administration of tP A. Moreover, plaintiffs expert opines, based on a review of the medical records, that defendant and its staff should have performed the duties required with greater speed, and that defendant's failure to do so narrowed the window for plaintiff to successfully receive tP A, thereby diminishing plaintiffs chance for a better outcome (see King v St. Barnabas Hosp., 87 AD3d 238 [1st Dept 2011}; see also, Hernandez v New York City Health & Hosp. Corp., 129 AD3d 532 [1st Dept 2015]). Plaintiffs expert also opines that while there are numerous notes throughout the record that assert that plaintiff did not consent to the administration of tP A, the record does not include a written refusal for the administration of tP A, which would have been standard hospital practice under the circumstance. Plaintiffs expert's observation on this point is key, as it blunts defendant's argument that plaintiffs own recollection is simply tailored to avoid the consequences of summary judgment (see Phillips v. Bronx Lebanon Hosp., 268 AD2d 318, [1st Dept 2000]). Moreover, defendant's assertion that plaintiffs testimony must be disregarded because of plaintiffs interest in the outcome of this litigation is without merit. Indeed, the Appellate Division, First Department, does not countenance a plaintiff advancing an argument in opposition to a motion for summary judgment that is inconsistent with the plaintiffs earlier deposition testimony, because such a change in position lends credence to the notion that a plaintiff is merely attempting to avoid the consequences of summary judgment (see Perez v. Bronx Park South Associates, 285 AD2d 402 [1st Dept 2001]; see also Beahn v. New York Yankees Partnership, 89 AD3d 589 [lst Dept 2011]). However, where a plaintiff testifies at a deposition in a manner consistently at odds with a defendant's version of events, a trial court may rightfully find that an issue of fact exists (see Lopez v. Bovis Lend Lease LMB, Inc., 26 AD3d 192 [1st Dept 2006]). And that is precisely the case here, where plaintiffs deposition testimony reveals that plaintiff consented to the administration of tPA even though defendant argues to the contrary. Such a factual discrepancy raises a fundamental issue of fact that a jury, rather the court, is charged to reconcile. Beyond that consideration, it is apparent to the court that plaintiffs expert affirmation presents a credible contrast to Dr. Tuhrim's contention that plaintiffs eventual outcome was inevitable following his purported refusal to take tP A. Illustratively, plaintiffs expert surmises that plaintiffs course of treatment could have been handled more aggressively, and that such an approach likely would have led to earlier administration of tP A, and an avoidance of plaintiffs permanent neurological damage in the form of memory loss and right-sided weakness. Importantly, based on the same records that Dr. Tuhrim reviewed, plaintiffs expert reaches a different conclusion regarding whether plaintiffs injuries could have been prevented. Where, as here, the affirmation of defendant's expert is credibly challenged by plaintiffs own expert affirmation, there is iqsufficient evidence to credit the conclusions of one expert over the conclusions of 6 6 of 7 [*FILED: 6] NEW YORK COUNTY CLERK 11/25/2019 02:52 PM NYSCEF DOC. NO. 65 INDEX NO. 805470/2016 RECEIVED NYSCEF: 11/25/2019 Index N!!. 805470/2016 another. Indeed, the weight to afford the respective expert's conclusions is for a jury, not this court, to decide. To be sure, the very fact that plaintiffs expert's opinions differ from those proffered by Dr. Tuhrim illustrates the existence of issues of triable fact. "Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions" (Elmes v. Ye/on, 140 AD3d 1009 [2d Dept 2016] (citations and internal quotation marks omitted]). Instead, the conflicts must be resolved by the fact finder (id.). Finally, plaintiffs failure to reveal the name of plaintiffs expert is not a fatal deficiency to the viability of plaintiffs opposition. Indeed, CPLR §3 lOl(d) has been amended to encourage full disclosure of expert opinion testimony, and the statute provides that in "an action for medical, dental or podiatric malpractice, a party, in responding to a request [for expert disclosure], may omit the names of medical, dental or podiatric experts" to mitigate the concern that "some physicians would attempt to discourage other physicians from testifying against them ifthe witnesses' identities were revealed prior to trial" (see e.g., Pizzi v. Muccia, 127 AD2d 338, 340 [3d Dept 1987]). As such, plaintiff was under no obligation here to reveal the name of plaintiffs expert. Based on the foregoing, it is hereby ORDERED that defendant's motion for summary judgment is denied in its entirety; and it is further ORDERED that the parties are directed to appear for a conference before the court on Tuesday December 17, 2019 at 9:30 AM at the courthouse located at 111 Centre Street, Room 1227 (Part 10), New York, New York. This constitutes the decision and order of the court. Dated: 11-22-19 ~!~ Q&ORGE J. SILVER 7 7 of 7

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