Clarke v New York City Health & Hosps.
Annotate this CaseDecided on November 12, 2019
Supreme Court, Kings County
Maria Lewell Clarke and HEGEL JEAN as temporary co-administrators of the Estate of WENDY VAUGHNS-LEWELL, deceased and on behalf of the next-of-kin, Plaintiff,
against
New York City Health and Hospitals, Defendant.
509348/2017
Allan Zelikovic, Esq. from Weitz & Luxenberg, P.C., Attorneys for the Plaintiff
Gina Bernardi DiFolco from McAloon & Friedman, P.C., Attorneys for the Defendant
Marsha L. Steinhardt, J.
The following papers numbered 1 to 4 read herein:
Papers Numbered
Notice of Motion 1
Affirmation in Opposition 2
Reply 3
Upon the foregoing papers, Defendant, New York City Health and Hospitals Corporation (HHC), moves for an Order, pursuant to CPLR § 3212, granting them Summary Judgment. Plaintiffs opposes Defendants motion.
Background
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Plaintiffs, co-administrators, commenced this medical malpractice action on behalf of Plaintiff-decedent against Defendant claiming that they failed to prevent and treat Plaintiff-decedent's pulmonary embolism causing her death.
Notice of Claim was filed on February 23, 2016. This action was commenced by the filing of a Summons and Complaint on May 10, 2017 and issue was joined by Defendant. Plaintiffs served a Verified Bill of Particulars on July 7, 2017.
On January 15, 2016, Plaintiff-decedent received the contraceptive Depo Provera by injection at Woodhull Hospital's OB/GYN clinic. One of the warnings for Depo Provera, as [*2]published by its manufacturer, is Thromboembolic Disorders — The physician should be alert to the earliest manifestations of thrombotic disorder (thrombophlebitis, cerebrovascular disorder, pulmonary embolism, and retinal thrombosis).
On February 3, 2016, Plaintiff-decedent was instructed by her surgeon at Woodhull to stop taking aspirin in anticipation of surgery to remove her gallbladder. On February 12, 2016, Plaintiff-decedent had outpatient surgery at Woodhull to remove her gallbladder. On February 13, 2016, Plaintiff-decedent filled a prescription for Tylenol with Codeine as prescribed by her surgeon. That same day, at 4:22 pm, Plaintiff-decedent called 911. An ambulance responded and the EMT documented that the patient complained of abdominal pains that were exacerbated by inhaling and exhaling. The EMT also noted that the patient was taking analgesics as prescribed. Plaintiff-decedent was transported back to Woodhull by ambulance. In the Emergency Room, it was suspected that she might have a pulmonary embolism. Blood work revealed a positive D-Dimer. No VQ or Doppler or ultrasound studies were ordered. A CT scan was performed in response to the positive D-Dimer, but a complete CT Pulmonary Embolism work-up with run-off was not performed. The CT was interpreted as negative and the Plaintiff-decedent was discharged home.
The next few days, Plaintiff-decedent remained home in bed. On February 21, 2016, an ambulance was called again. Plaintiff-decedent had complaints of difficulty breathing. She was brought to Brookdale Hospital where she expired within moments of her arrival. Plaintiff-decedent died from a pulmonary embolism, the official cause of death being pulmonary thromboemboli following laparoscopic cholecystectomy.
Motion for Summary Judgment
On a motion for summary judgment, the moving party has the initial burden to provide sufficient proof, in admissible form, to enable a court to determine that it is entitled to judgment as a matter of law. If this burden is not met, the court must deny the relief sought (CPLR § 3212; Zuckerman v. City of New York, 49 NY2d 557 [1980]). However, once the movant on a summary judgment motion has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v. Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562).
The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury (see Holbrook v. United Hosp. Med. Ctr., 248 AD2d 358, 359 [2d Dept 1998]). Therefore, on a medical malpractice motion for summary judgment, a moving physician must establish, prima facie, either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of the plaintiff's injuries (Uchitel v. Fleischer, 137 AD3d 1111, 1112 [2d Dept 2016]; Senatore v. Epstein, 128 AD3d 794, 795 [2d Dept 2015]).
To sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars (Wall v. Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1044—1045 [2d Dept 2010]; Grant v. Hudson Val. Hosp. Ctr., 55 AD3d 874, 874 [2d Dept 2008]). Once this showing has been made, the burden shifts to the plaintiff to submit evidentiary facts or materials to rebut the defendant's prima facie showing, but only "as to those elements on which the defendant met the prima facie burden" (Harris v. Saint Joseph's Med. Ctr., 128 AD3d 1010, 1012 [2d Dept 2015]; see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [*3][1986]). "General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment" (DiMitri v. Monsouri, 302 AD2d 420, 421 [2003] [citations omitted]; Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966 [1988]). Further, "[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions . . . [because] such credibility issues can only be resolved by a jury" (Feinberg v. Feit, 23 AD3d 517, 519 [2d Dept 2005] [internal citations omitted]).
In support of their motion, Defendant submitted expert affirmations from Mark A. Reiner, M.D., a physician Board Certified in General Surgery; Benjamin Bashist, M.D., a physician Board Certified in Diagnostic Radiology; and Mark Silberman, M.D., a physician Board Certified in Internal Medicine, Emergency Medicine, Critical Care Medicine, and Pulmonary Medicine.
Dr. Reiner's opinion is limited to the laparoscopic cholecystectomy and the administration of anticoagulation. Dr. Reiner opines that Plaintiff-decedent was appropriately assessed for the surgery at Woodhull and it was properly performed. Dr. Reiner states that the surgery was clinically indicated, necessary and appropriate given Plaintiff-decedent's 8-year history of painful gallstones in conjunction with an ultrasound finding positive for the formation of gallstones. Regarding the administration of anticoagulation, Dr. Reiner opines, "anticoagulation is not indicated in conjunction with gallbladder removal surgery unless the patient is high risk" and that Plaintiff-decedent "was a decisively low-risk patient" who did not exhibit any of the risk factors: past medical history of PE/DVT, morbid obesity, coagulopathy, and immobility. Dr. Reiner also opines that anticoagulation was not clinically indicated during Plaintiff-decedent's subsequent E.D. visit to Woodhull "because diagnostic testing and workup properly ruled out PE and DVT". Dr. Reiner concludes that the care and treatment provided to Plaintiff-decedent "comported with good and accepted standards of care in the medical community" because the procedure was necessary given the "age and severity of her symptoms . . . and there were no alternative treatments that would have achieved the same results" and Plaintiff-decedent's "medical history demonstrated that she was very low risk for clotting".
Dr. Bashist's opinion is limited to review of the CT angiogram study taken of Plaintiff-decedent. Dr. Bashist performed a "blind" review of the CT angiogram "with no prior knowledge concerning the patient, her condition, or prior workup" and "found no evidence of PE upon review". Then, after a thorough review of the case materials, Dr. Bashist confirmed this finding. Dr. Bashist opines that "the care/treatment provided to decedent by Woodhull at all times comported with good and accepted standards of care in the medical community" because the "CT angiogram study provides no evidence of pulmonary embolism and Dr. Dym's interpretation of the study was accurate".
Dr. Silberman opines that a comprehensive workup, including physical examinations and a CT angiogram, ruled out PE and DVT during Plaintiff-decedent's admission to Woodhull's E.D and that "in the context of her recent surgery, combined with her age and unremarkable medical history, it was fully within the standard of care to discharge her home from the ED". Dr. Silberman explains that Plaintiff-decedent's D-dimer level was mildly elevated and he opines that "was consistent with her having undergone surgery the day prior". Dr. Silberman, like Dr. Reiner, states that Plaintiff-decedent "fit the criteria of being low-risk for thromboembolic disease given the type of minimally invasive surgery that was performed". Dr. Silberman concludes that "it is my opinion that the results of the appropriate and thorough diagnostic [*4]workup in the Woodhull ED . . . clearly indicate that [decedent] developed a pulmonary embolism in the intervening time period between her discharge and her death".
In opposition, Plaintiffs submitted an expert affirmation from a physician who is Board Certified in Emergency Medicine. Plaintiffs' expert rebuts Defendant's experts' opinions that Plaintiff-decedent was low-risk for clotting or PE/DVT. Specifically, Plaintiffs' expert opines that Plaintiff-decedent "had a number of signs, symptoms, risk factors and underlying conditions which should have alerted providers in the ER at Woodhull Hospital that she was at an elevated risk for Pulmonary Embolism (PE): (1) she was on birth control, (2) she was not taking any blood thinners such as aspirin, (3) she had just undergone surgery, (4) she was taking analgesics for pain, (5) she was complaining of pain on inhaling and exhaling, (6) she was complaining of abdominal pain, (7) she had an elevated D-Dimer". Plaintiffs' expert opines that Plaintiff-decedent was at increased risk for clots given all the aforementioned, including that she was sedentary. Plaintiffs' expert opines "good and accepted medical practice required Defendant to order a CT scan with PE protocol including Run-off, a VQ scan, and Doppler to determine the source of the clots which would more likely than not have revealed the presence of a pulmonary embolism and its source". Plaintiffs' expert concludes that Woodhull's policies and procedures in place in cases of suspected DVTs and PEs were not followed and the failure to "follow the policies to test for DVT/PE with doppler, etc and anti-coagulate pursuant to these polices were proximate causes and substantial factors in the death of [decedent]".
The parties clearly present immense conflicting medical expert opinions as to the appropriate care/treatment rendered to Plaintiff-decedent. This Court, therefore, finds that the conflicting expert opinions presented herein sufficiently establish the existence of questions of fact that require a jury's determination.
Accordingly, it is
ORDERED, that Defendant's motion for summary judgment is denied
This constitutes the opinion, decision and Order of this Court.
ENTER,
_________________________________
HON. MARSHA L. STEINHARDT
J.S.C.
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