Merry v Edwards

[*1] Merry v Edwards 2019 NY Slip Op 52188(U) Decided on January 31, 2019 Supreme Court, Allegany County Brown, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 31, 2019
Supreme Court, Allegany County

Bryan Merry, As Administrator of the Estate of Nancy Merry, Deceased, Plaintiff,

against

Frank J. Edwards, M.D.; Delphi Healthcare, PLLC; Alicia S. Calagiovanni, as Public Administratrix of the Estate of Donald L. Jackson, M.D., and the Memorial Hospital of William F. and Gertrude F. Jones, Inc., Defendants.



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Richard P. Valentine, Esq. for plaintiff

Hirsch & Tubiolo (Nicholas Reeder, Esq., of counsel) for defendants Edwards and Delphi

Colucci & Gallaher (Marylou K. Roshia, Esq., of counsel) for defendants Jackson and JMH
Thomas P. Brown, J.

Decision and Order

In this action for medical malpractice, all the parties have moved for summary judgment.

In support of plaintiff's motion, and in opposition to defendants' motions, the Court has read the the affidavit of Richard P. Valentine, Esq., dated September 10, 2018, the affidavit of Ronald Paynter, M.D., dated September 7, 2018, the affidavit of Ronald Paynter, M.D., dated November 5, 2018, the affidavit of Darryl Conley, dated December 26, 2017, the affidavit of Richard P. Valentine, Esq., dated November 7, 2018 and the affidavit of Richard P. Valentine, Esq., dated November 7, 2018.

In support of Dr. Edwards' and Delphi's motion for summary judgment, and in opposition to the plaintiff's motion, the Court has read the affirmation of Nicholas J. Reeder, Esq., dated June 1, 2018, the affidavit of Mervyn R. Whelan, M.D., dated May 17, 2018 and the reply affirmation of Nicholas J. Reeder, Esq., dated November 12, 2018.

In support of Dr. Jackson's and Jones Memorial Hospital's motion, and in opposition to plaintiff's motion, the Court has read the affidavit of Marylou K. Roshia, Esq., dated September 6, 2018, the affirmation of Frank M. Lee, M.D., and the affidavit of Marylou K. Roshia, Esq., dated November 5, 2018.

The Court heard oral argument on November 14, 2018 and reserved decision.

Factual Background:

Certain facts are not in dispute. On September 12, 2010, Nancy Merry was startled by a mouse while she was at her mother's house. The shock caused her to experience sharp chest pains. Her boyfriend Darryl Conley agreed to drive her to the emergency room of Jones Memorial Hospital (JMH) in Wellsville, New York. While the time of her arrival there is very much in dispute, that she arrived there and waited for some period of time is not. She was eventually seen by a registered nurse who took note of her symptoms and connected her to a heart monitor. After several minutes, it was determined that she should have an electrocardiogram (EKG). Between the time she was disconnected from the monitor and the time the EKG became available, she was observed to be non-responsive, and was diagnosed with ventricular fibrillation. Defendant Franklin Edwards, M.D. responded to the emergency room and performed CPR and two defibrillations. Defendant Donald Jackson, M.D. then joined him in the emergency room and attempted to administer intravenous medications. Medications were successfully administered after Ms. Merry was intubated. Despite these measures, her heart rate could not be stabilized and, most unfortunately, at 9:04 p.m., she was declared dead of cardiopulmonary arrest.

Plaintiff's Motion for Summary Judgment:

Plaintiff has moved for summary judgment on the complaint's ninth and tenth causes of action. There are the causes of action against JHM for violations of the Emergency Medical Treatment and Active Labor Act (EMTALA)[FN1] .

In order to state a claim under EMTALA, a plaintiff must allege that he went to the emergency room of a participating hospital seeking treatment for a medical condition, and that the hospital did not appropriately screen him to determine whether he had an emergency medical condition, or discharged or transferred him before such a condition had been stabilized [Cygan v. Kaleida Health, 51 AD3d 1373 (4th Dept.. 2008); Jones v. Beth Israel Hospital, — F. Supp. &mdash, 2018 WL 1779344 (S.D.NY 2018)].

Plaintiff claims that JMH's treatment of Nancy Merry violated EMTALA because she was not given a prompt medical screening examination. Plaintiff claims she was ignored for 45 to 60 minutes after she arrived at the emergency room. The affidavit of Darryl Conley states that he and Nancy Merry arrived at JMH's emergency room at "approximately 6:15" on September 12, 2010. According to Conley, no JMH employee was present in the waiting area of the emergency room when they arrived. Conley claims he announced to ER personnel three times that Nancy Merry was having chest pain before she was taken by wheelchair out of the waiting area for treatment. Medical records show that Peter Maslona, R.N. then performed a triage at 7:35 p.m. Plaintiff argues that from the time of her arrival to the time the attempts to resuscitate her began, Nancy Merry was never given an appropriate medical screening examination. Plaintiff claims that the deposition testimony of Bryan Merry, Nancy Merry's son, supplies further proof of JMH's violations of EMTALA.

Defendant JMH argues that, as a matter of law, there could be no EMTALA violation, because Nancy Merry was never transferred or discharged from JMH. EMTALA, according to defendant, imposes liability on a hospital only if it discharges or transfers a patient before [*2]administering a medical screening examination and, if necessary, stabilizing an emergency condition.

JMH also argues that the deposition testimony of Bryan Merry concerning events at JMH is inadmissible hearsay because he was not present when Nancy Merry arrived and was treated at the hospital.

JMH further argues that Nancy Merry was covered under both Medicare and Medicaid, and therefore that JMH would not deny or delay her treatment because she was uninsured.

EMTALA requires an "appropriate" medical screening examination [FN2] . Under EMTALA, "a medical screening examination is the process required to reach, with reasonable clinical confidence, the point at which it can be determined whether the individual has an Emergency Medical Condition or not [. . . ] It is an ongoing process that begins, but typically does not end, with triage [. . . ] EMTALA does not specify what is to be included in screening procedures. Nor does it require that hospitals provide all necessary emergency treatment. Most courts hold that only if there is a discrepancy in treatment, or a lack of uniformity in treatment, can a charge of an inappropriate MSE be successful."[FN3]

The Court finds that plaintiff has not met his initial burden to obtain summary judgment on his EMTALA claims. None of the papers before the Court indicate that Nancy Merry was refused a medical screening examination at JMH. None of the papers before the court demonstrate that Nancy Merry was discharged or transferred before being examined by JMH. Plaintiff claims that Nancy Merry was not timely treated; indeed this is the gravamen of the entire complaint, but EMTALA does not impose a time limit within which a patient must receive a medical screening examination. EMTALA does not create a federal cause of action for medical malpractice [Jones v. Beth Israel Hospital, — F. Supp. &mdash, 2018 WL 1779344 (S.D.NY 2018)].

Plaintiff argues that Dr. Edward's deposition testimony established that, under its own policies, JMH should have treated Nancy Merry within ten minutes of her arrival there, because she presented with chest pain, or at least a history of chest pain. However, EMTALA does not require a certain timing or quality of screening, or even that a hospital follow its own policies to ensure a certain timing or quality of screening. [Nolen v. Boca Raton Community Hospital Inc., 373 F.3d 1151 (11th Cir. 2004)]. EMTALA requires only that a patient is screened in a manner consistent with the screening that any other patient with similar symptoms would have received [Id.]. EMTALA is not concerned with faulty screening or treatment, but rather with disparate screening or treatment. [ Chipley v. Stephenson, 72 AD3d 1548 (4th Dept. 2010); Lidge v. Niagara Falls Medical Center, 17 AD3d 1033 (4th Dept. 2005)]. Thus, in order to meet the initial burden on summary judgment, plaintiff would have to demonstrate by proofs in admissible form that JMH delayed or denied Nancy Merry's medical screening examination compared with other patients who presented with the same symptoms. This plaintiff has failed to do.

Defendants Jackson's and Jones Memorial Hospital's Motion for Summary Judgment:

These defendants have moved for summary judgment "dismissing plaintiff's claims, on [*3]the merits and with prejudice."

They first address plaintiff's claims against JMH and defendant Donald Jackson, M.D. under EMTALA.

Plaintiff argues first, that no EMTALA cause of action against Dr. Jackson is pled in plaintiff's complaint, and therefore that any allegations that Dr. Jackson violated EMTALA in the bill of particulars should be disregarded. Second, these defendants argue that any such claims that could be pled are improperly pled as against defendant Donald Jackson, M.D.[FN4]

Regarding plaintiff's EMTALA claim, JMH claims it is entitled to summary judgment because it followed its own policies and procedures in treating Nancy Merry. In his expert affirmation, Frank M. Lee, M.D., states that JMH had an EMTALA compliance policy and procedure in effect at the relevant times. The procedure included triage, cardiac monitoring and a code for implementing CPR . Dr. Lee states that these policies and procedures were implemented in JMH's treatment of Nancy Merry, and that in his opinion, there was no EMTALA violation.

Defendants also argue that there was no violation of EMTALA because JMH never transferred or discharged Nancy Merry from its emergency room, a fact that they describe as a "fatal flaw" to plaintiff's claim under EMTALA.

Regarding plaintiff's claims for negligence and medical malpractice, JMH argues that plaintiff has failed to assert any claim against it except to say that it is vicariously liable for Dr. Jackson's negligence. JMH argues that plaintiff, in his complaint or bill of particulars, has failed to identify even a single act or omission by JMH that would constitute negligence or medical malpractice, and has not identified even a single employee or agent of JMH for whose conduct JMH could be held vicariously liable. Consequently, JMH argues that all of plaintiff's concurrent claims against it for medical malpractice and negligence should be dismissed, citing Suits v, Wyckoff Hghts. Med. Ctr., 84 AD3d 487 (1st Dept. 2011).

Regarding plaintiff's claims for medical malpractice against defendant Donald Jackson, M.D., defendants again offer the expert affidavit of Dr. Frank Lee, a board certified emergency medicine physician. Dr. Lee opines that Dr. Jackson and his staff at JMH acted within the applicable standard of care in their diagnosis and treatment of Nancy Merry. Specifically, Dr. Lee states that a registered nurse took triage notes from Nancy Merry at 7:35 p.m., within 8 minutes of her arrival at JMH's emergency room at 7:27 p.m., and then, after placing her on a cardiac monitor, proceeded to retrieve an EKG machine to administer the indicated electrocardiogram. According to Dr. Lee, when the nurse returned at 7:45 p.m., he found Nancy Merry to be unresponsive. Dr. Lee states that she was then immediately transferred to the trauma room to be treated by Dr. Edwards, who performed CPR and administered two defibrillations, after which Dr. Jackson ordered atropine and epinephrine to be administered through an endotracheal tube. According to Dr. Lee, none of the actions by Dr. Jackson or JMH caused or contributed to the injuries asserted in plaintiff's bill of particulars, and all of their actions were within the applicable standard of care.

Defendant Jackson also points out that JMH's medical records indicate that Nancy Merry [*4]did not present to the emergency room with active chest pain, but with chest pain which had resolved.

In response, plaintiff claims that these defendants improperly shielded Dr. Lee from the deposition testimony of Nancy Merry's son, Bryan Merry. This testimony related Daryl Conley's account that he and Nancy Merry were forced to wait for treatment for an unreasonably long time despite his repeated complaints that she was having chest pain. Plaintiff argues that Dr. Lee's opinion would have changed if he was not "shielded" from this information, because neither Dr, Jackson nor Dr. Edwards knew how long Nancy Merry had been waiting.

Plaintiff also argues that, based on the expert affidavits of Dr. Paynter, the applicable standard of care called for an EKG to be performed within 10 minutes of a patient who presented with chest pain. Thus, plaintiff argues that, even using JMH's own records, the fact that an EKG was not made available until 7:45 p.m., 18 minutes after Nancy Merry presented with chest pains at 7:27 p.m., was a deviation from the applicable standard of care. Plaintiff also argues that these defendants submitted no proofs as to when Dr. Jackson actually arrived for his ER shift on September 12, 2010 , and that there was circumstantial evidence he arrived earlier than 7:30 and was therefore in a position to respond and treat Nancy Merry so as to prevent her cardiac arrest, but did not.

In reply, defendants Jackson and JMH respond that the only relevant deposition testimony of Bryan Merry was inadmissible hearsay, and that they were under no obligation to have their expert Dr. Lee review it.Defendants also argue that Darryl Conley's status as a witness was not properly disclosed by plaintiff, and that the Court should not consider his affidavit, nor the portions of Dr. Paynter's affidavits that rely on Conley's statements.

The Court concludes that any non-vicarious EMTALA claims asserted by plaintiff against Dr. Jackson should be dismissed, as EMTALA creates no cause of action against a private physician [Cygan v. Kaleida Health, 51 AD3d 1373 (4th Dept. 2008)].

The Court further concludes that JMH has not met its initial burden to obtain summary judgment on plaintiff's EMTALA claims. JMH has argued that no cause of action can arise under EMTALA unless a patient is discharged or transferred before receiving an appropriate MSE. Hypothetically, this would mean there would be no EMTALA claim for patient who presented to an emergency room and, after having waited an hour, expired, while other patients with the same symptoms received an MSE within five minutes. The Court cannot accept this conclusion.

A defendant seeking summary judgment dismissing EMTALA claims should have to show, by proofs in admissible form, that the plaintiff received the same type of screening that would have been given to any other similarly situated outpatient according to the hospital's policy [Nolen v. Boca Raton Community Hospital Inc., 373 F.3d 1151 (11th Cir. 2004)]. Defendants' proofs tend to establish that Nancy Merry received a MSE, but do not address the issue of how Nancy Merry's MSE compared to that received by other patients who presented with the same symptoms. Dr. Lee's affidavit states that : "there is nothing in the record to indicate that Ms. Merry was treated any differently than any other patient presenting to the Emergency Room." The Court agrees with Dr. Lee, but because it is JMH's burden to show the absence of disparate treatment, it concludes that JMH is not entitled to summary judgment on plaintiff's EMTALA claims.

The Court further concludes that Dr. Jackson and JMH have met their initial burden on their summary judgment motion to dismiss plaintiff's negligence or malpractice claims, but that plaintiff's papers in opposition raise issues of fact that require denial of the motion.

In order to prevail on a motion for summary judgment against a claim of medical malpractice, the movant has the initial burden of establishing the absence of any departure from good and accepted practice, or that the plaintiff was not injured by any departure [Suits v. Wycoff Heights Medical Center, 84 AD3d 487 (1st Dept.. 2011)]. Dr. Lee's affidavit satisfies these requirements. The fact that Dr. Lee did not review Bryan Merry's deposition does not disqualify him from rendering this opinion, because Bryan Merry had no first hand, personal knowledge of the events that took place at JMH on September 12, 2010.

Still, the affidavits of Ronald Paynter, M.D., raise issues of fact as to the applicable standard of care and whether there were departures therefrom. Dr. Paynter maintains that eight minutes elapsed from the time of Nancy Merry's documented intake at 7:27 p.m. until the time of triage at 7:35 p.m. with no action being taken by JMH or Dr. Jackson, who had just started his shift as the emergency room physician. At the time of triage, when it was learned that Nancy Merry had "chest pain of suspected cardiac origin," Dr. Paynter opines that an EKG should have been immediately performed according to JMH's own policies and procedures. Instead, he opines, Nancy Merry was left unattended and unmonitored for at least ten minutes, which he termed "a critical delay" and "a departure from accepted standards of care" that was a substantial factor causing her death. Paynter's affidavits also frame issues of fact regarding JMH's liability inasmuch as they opine that Peter Maslona, R.N., an employee of JMH named in plaintiff's bill of particulars, was not qualified to perform an MSE and unjustifiably failed to immediately notify the attending physician once he learned that Nancy Merry had experienced chest pain of suspected cardiac origin [cf. Brusco v. St. Clare's Hosp. And Health Center, 128 AD2d 390 (1st Dept. 1987)].

Defendants Edwards' and Delphi's Motion for Summary Judgment:

Regarding plaintiff's EMTALA claims, these defendants argue that they cannot be held liable under EMTALA because EMTALA creates no cause of action against individual doctors or medical groups. Defendants claim that EMTALA applies only to hospitals having emergency departments.

Regarding plaintiff's malpractice claims, defendants rely upon the expert affidavit of Mervyn R. Whelan, M.D., a physician who is licensed in the State of New York and board certified to practice emergency medicine. In it, Dr. Whelan opines that all of Dr. Edwards' actions in treating Nancy Merry were within the applicable standard of care, and that none of his actions could be considered a proximate cause of her death.In particular, Dr. Whelan notes that medical records and depositions show that Dr. Edwards was the attending physician at the emergency room of JMH on the evening of September 12, 2010, when Nancy Merry arrived there. He notes that within 8 minutes of her arrival at 7:27 p.m., she was triaged by a registered nurse, and that telemetry was commenced within 10 minutes of triage. These actions and their timing were reasonable, and well within the applicable standard of care, according to Dr. Whelan. He states that when a code was called, Dr. Edwards responded to the code, even though his shift had ended, and that he ordered and attempted to administer the appropriate medicines. Dr. Whelan concludes that, under the facts and circumstances of her case, Nancy Merry's [*5]respiratory arrest would have been terminal even if "the best cardiologists in the world" were there to treat her.

In opposition to defendants' motion, plaintiff contends that Dr. Whelan's affidavit is deficient for failing to describe what admissible evidence he relied upon to form his opinions. Plaintiff also argues, as he did versus defendants Jackson and JMH, that defendants' expert should have reviewed a transcript of Bryan Merry's deposition testimony, which he describes as "critical evidence," and that his affidavit is deficient for his failure to do so. Plaintiff also points out that Dr. Edward's had no personal recollection of how long Nancy Merry had to wait before being treated by the emergency department. Plaintiff also maintains that, even if Nancy Merry arrived at JMH's emergency department at 7:27, as JMH's records show, Dr. Edwards treatment of her still departed from the applicable standard of care, because she was not connected to an electrocardiogram machine within 10 minutes of her arrival.

The Court concludes that defendants Edwards and Delphi have met their summary judgment burden on plaintiff's EMTALA claims. EMTALA does not create a cause of action against a private physician [Cygan v. Kaleida Health, 51 AD3d 1373 (4th Dept. 2008)], and since Delphi is alleged only to be vicariously liable for Dr. Edward's conduct, neither can Delphi be liable under EMTALA. Plaintiff can raise no issue of fact in opposition to this motion. Vicarious claims against JMH should remain.

The Court also concludes that defendants Edwards and Delphi have met their initial burden for summary judgment dismissing plaintiff's malpractice claims. Dr. Whelan's affidavit is prima facie sufficient to show that these defendants did not depart from the applicable standard of care in their treatment of Nancy Merry. Dr. Whelan's affidavit adequately identified the bases for his opinion, including JMH's medical records and Dr. Edward's deposition. It was not rendered inadequate because he did not review a transcript of Bryan Merry's testimony, which was hearsay, as far as the events at JMH were concerned.

Still, plaintiff has pointed out issues of fact sufficient to stave off summary judgment. Dr. Paynter's affidavit claims that Dr. Whalen's affidavit ignores that JMH's treatment of Nancy Merry violated its own policies and procedures, specifically that ER physicians should have been immediately notified if a patient presented with chest pain of suspected cardiac origin, and that a diagnostic EKG should be performed within ten minutes. Dr. Paynter also opines that the information obtained by the cardiac monitoring at 7:33 p.m. should have triggered immediate action, but instead resulted in the patient being left unattended for ten minutes while the nurse was looking for an EKG machine. These statements raise issues of fact whether these defendants complied with the applicable standard of care.

Status of Darryl Conley as affiant and witness:

At oral argument, counsel were unable to agree whether plaintiff complied with his obligation to disclose the existence of Darryl Conley as a witness for the plaintiff. Plaintiff's counsel said that he had, because Conley's name had been disclosed in the deposition of Bryan Merry and because Conley was named as a non-party witness at the time of trial in his letter to opposing counsel dated August 17, 2017. Defendants' counsel argued that such alleged disclosures were informal, and that CPLR 3102 required a formal disclosure. Defendants argued that the Court should not consider Conley's affidavit in deciding the summary judgment motions.

The Court has determined that its decision on the summary judgment motions in this case [*6]does not depend on whether it reads the affidavit of Darryl Conley. If it was not considered, the Court would still deny the defendants' motion for summary judgment, because plaintiff's expert Dr. Paynter, opines that it was a departure from the applicable standard of care that Nancy Merry was not administered an EKG within ten minutes of her arrival and this departure was a proximate cause of her death. If it was considered, the Court would still deny plaintiff's motion for summary judgment on the EMTALA claims, because Conley's affidavit does not demonstrate that Nancy Merry was treated differently than other patients who presented with the same symptoms, and even if it did, defendants' papers at the very least create issues of fact whether Nancy Merry received a medical screening examination that was appropriate under the statute.

That being said, it is necessary to clarify Darryl Conley's status as a witness at trial, currently scheduled to commence June 20, 2019.That Conley's name surfaced in a deposition does not satisfy plaintiff's obligation to disclose. [Arpino v. F.J.F. & Sons Elec. Co. Inc., 102 AD3d 201 (2nd Dept. 2012)]. That Conley's name and address was disclosed in a August 17, 2017 letter of enclosure for the note of issue and certificate of readiness does not satisfy plaintiff's obligation to disclose, because such disclosure, to be effective, must allow the opposing parties an opportunity to examine those witnesses, and the filing and service of a note of issue certifies that discovery is complete. Plaintiff's failure to timely and properly disclose the name of this witness can hardly be called a last minute oversight, because Conley's affidavit was sworn to December 27, 2017 and contained highly relevant allegations as to when Nancy Merry arrived at JMH's emergency room, a central issue in this case.

Under these circumstances, in order for Darryl Conley to be available as a trial witness, all possible prejudice that might result to the defendants must be removed, and this means allowing the defendants to prepare a defense responsive to the witness's testimony [Wolodkowicz v. Seewell Corp., 61 AD3d 676 (2nd Dept. 2009)] . Notwithstanding that a note of issue has been filed, the Court will allow the defendants ninety days from the date of this decision and order to obtain disclosure from Darryl Conley.

Accordingly, for the reasons stated and upon the authorities cited, it is hereby

ORDERED that plaintiff's motion for summary judgment on his EMTALA claims is hereby denied; and it is further

ORDERED that defendant JMH's motion for summary judgment dismissing plaintiff's EMTALA claims is hereby denied; and it is further

ORDERED that all other defendants' motions for summary judgment dismissing plaintiff's EMTALA claims are hereby granted, except for vicarious claims against JMH; and it is further

ORDERED that defendants Edwards' and Delphi's motion for summary judgment dismissing plaintiff's non-EMTALA claims is hereby denied; and it is further

ORDERED that defendants Jackson's and JMH's motion for summary judgment dismissing plaintiff's non-EMTALA claims is hereby denied.; and it is further

ORDERED that counsel for defendants shall have ninety (90) days from the date of this order in which to obtain disclosure from Darryl Conley.

This Decision shall also constitute the Order of this Court.

It is so ORDERED.

Dated: January 31, 2019

Belmont NY

HONORABLE THOMAS P. BROWN

ACTING JUSTICE OF THE SUPREME COURT Footnotes

Footnote 1:42 U.S.C. 1395dd et seq.

Footnote 2:42 U.S.C. 1395dd(a)

Footnote 3:Moy, The EMTALA Answer Book, 2-1 to-2-3, Wolters Kluwer (2012)

Footnote 4:Most regrettably, Dr. Jackson passed away during the pendency of this lawsuit and a public administrator has been appointed to represent his estate.