Burrell v New York City Health & Hosps. Corp.

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Burrell v New York City Health & Hosps. Corp. 2021 NY Slip Op 30978(U) March 29, 2021 Supreme Court, Kings County Docket Number: 523591/2018 Judge: Pamela L. Fisher 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] KINGS COUNTY CLERK 03/29/2021 12:25 PM INDEX NO. 523591/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/29/2021 At an IAS Term, Part MMESP-7 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse located at 360 Adams Street, Brooklyn, New York, on this 29 day of March 2021 P R E S E N T: HON. PAMELA L. FISHER, J.S.C. ---------------------------------------------------------------------x CRYSTAL BURRELL Plaintiff, -and- DECISION/ORDER Index No. 523591/2018 THE NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, KINGS COUNTY HOSPITAL CENTER, CAROL JOHNSON-MENDOZA, CNM, AMMAR MAHMOUD, MD And DANIEL MARTINEZ, MD Defendants. ---------------------------------------------------------------------x Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed___________________ 20-38________ Opposing Affidavits (Affirmations)__________________ 40-43________ Reply Affidavits (Affirmations)_____________________ 44-47________ Upon the foregoing papers in this medical malpractice action, defendants New York City Health and Hospitals Corporation S/H/A The New York City Health and Hospitals Corporation and Kings County Hospital, Carol Johnson-Mendoza, CNM, Ammar Mahmoud, MD and Daniel Martinez, MD move in motion sequence 1 pursuant to CPLR 3212, for summary judgment, dismissing plaintiff complaint against them in its entirety. Plaintiff commenced this action by filing a summons and complaint on or about November 21, 2018. Issue was joined as to HHC and all remaining defendants on December 12, 2018 and April 4, 2019, respectively. On January 22, 2019, Plaintiff served a bill of particulars on HHC and on June 6, 2019, a supplemental bill of particulars was served on the remaining defendants. On September 2, 2020, a first supplemental bill of particulars and a second supplemental bill of particulars was served on HHC and the remaining defendants. Plaintiff filed her Note of Issue on July 17, 2020. In her complaint and bill of particulars, plaintiff alleges that defendants negligently and improperly failed to diagnose and treat P a condition: 3rd degree perineum and sulcus lacerations; in failing to consider episiotomy; and in failing to properly supervise medical treatment rendered (D da c 1, E b D: P a Bill of Particulars ¶ 3). The following facts are not in dispute: On October 30, 2017, Plaintiff, then forty-one (41) weeks a a (D c da A d, d A a K C 6a dE H a C ( HHC ) d abd a b H: Kings County Medical Records). Pain level was 1 1 of 5 [*FILED: 2] KINGS COUNTY CLERK 03/29/2021 12:25 PM INDEX NO. 523591/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/29/2021 noted as a nine (9) out of ten (10) and upon request, an epidural was administered for pain relief on October 31, 2017 at approximately 6:50A.M. (Id. ¶ 6-7). A healthy live male baby was born at 10:51 P.M on October 31, 2017 after a spontaneous vaginal delivery (Id. ¶ 10). The baby was delivered by defendant Carol JohnsonM d a, CNM ( M d M d a ) (Id.). D d ,Pa a da and a perineal laceration (Id. ¶ 11). After the delivery, Midwif M d a c c d and sought the assistance of defendant Ammar Mahmoud, MD ( Dr. Ma Da Ma , MD ( Dr. Ma c ac a Pa ac a d ), attending physician and ), resident physician (Id. ¶ 13). The repair a da c and Dr. Mahmoud and Dr. Martinez noted they both encountered friable tissue (Id.). After the repair, Plaintiff was transferred to a recovery room for monitoring where she began to complain of rectal pain and pressure and inability to put pressure on her glutes (Id. ¶ 14). An examination at bedside showed no notable abnormalities or b ca Pa c a a d a Pa a a a examination under anesthesia for suspicion of possible vaginal hematoma (Id. ¶ 15). On November 1, 2017 an examination under anesthesia was performed by Dr. Mahmoud and two additional non-party doctors (Id. ¶ 16). The procedure required opening the previous repair for full examination of anatomy and upon examination a second-degree laceration extending to the sulcus was observed as well as friable tissue (Id.). The laceration was repaired, and the Plaintiff was returned to the recovery room with vaginal packing in place (Id. ¶ 17). In recovery, Plaintiff continued to complain of rectal pain and pressure, which subsided slightly after the vaginal packing was removed, and gluteal soreness and discomfort with ambulation, which was alleviated with rest and pain medications. (Id. ¶ 18). Plaintiff was discharged home on November 3, 2017 with a discharge summary that notes Plaintiff had a third degree and bilateral periureteral lacerations (Id ¶ 19). On December 8, 2017, Plaintiff was seen in the Obstetrics Post-Partum clinic by Midwife Mendoza and complained of pain radiating to the back since the delivery. Plaintiff also complained of difficulty ambulating to a standing position and on examination, Midwife Mendoza noted there was tenderness, and was unable to introduce a speculum into the vagina or perform a digital examination (Id. ¶ 22). On December 15, 2017, Midwife Mendoza documented an earlier telephone discussion with Plaintiff during which Plaintiff reported significant pain and unbearable burning with urination (Id. ¶ 23). On December 15, 2017 and December 20, 2017, Plaintiff was seen by non-party doctors at the clinic, and it was again noted that Plaintiff incurred a thirddegree laceration during delivery and antibiotics were prescribed (Id. ¶ 24). On March 12, 2018, Plaintiff presented at HHC where she was seen by Dr. Martinez and during a pelvic exam it was noted that her vaginal laceration had not healed, and she was referred to non-party Dr. Short for a urogynecology evaluation (Id. ¶ 26). On March 22, 2018, Plaintiff was seen by Dr. Short and Dr. Mei, who noted that a pelvic examination revealed polyps in the lateral and posterior walls of the vagina and discussed with Plaintiff the possible revision of vaginal laceration (Id. ¶ 27). Plaintiff agreed to the revision of vaginal laceration but did not schedule the procedure. Thereafter, on May 22, 2018, Plaintiff presented to NYU Langone for a second opinion regarding surgery where it was determined that Plaintiff did not need surgical intervention (Id. ¶ 29). 2 2 of 5 [*FILED: 3] KINGS COUNTY CLERK 03/29/2021 12:25 PM INDEX NO. 523591/2018 NYSCEF DOC. NO. 48 A a RECEIVED NYSCEF: 03/29/2021 d da a d c a d a ac c , a ca she sustained numerous complications, including but not limited to pain, discomfort, mental anguish, improper repair of third-degree lacerations and need for future surgeries, (D da c 1, E b B: P a C a ¶ 40-41). Defendant s Motion for Summary Judgment: In support of its motion for summary judgment, defendants submit the pleadings, deposition transcripts, Kings County medical records and an attorney affirmation. Defendants contend that summary judgment is warranted because the treatment rendered by the defendants was at all times in accordance with the accepted standards of practice a d a sulcus lacerations were properly repaired (D d c b d ab da a c 1, A Pa A a a d a , ¶ 30-31). In further support of their motion, defendants submit an expert affirmation from Dr. Jodi P. Lerner, M.D. a physician board certified in Obstetrics and Gynecology, whose opinion is based on review of the pleadings, deposition transcripts and Kings County medical record (D da c 1, E b O. at ¶ 3). Dr. Lerner concludes that with a reasonable degree of medical certainty, that there were no departures from the standard of care committed by any of the defendants during the deliv Pa bab October 31, 2017, the subsequent hospitalization, including repair of lacerations and clinic visits and that the lacerations Plaintiff sustained during delivery and the injuries claimed by the Plaintiff were not caused by any departure in the standard of care by the defendants (Id. ¶ 4). Dr. Lerner states that injury to the vagina and adjacent areas and structures, particularly to the perineum is an inherent risk of vaginal delivery and vaginal tears-also known as perineal tears- that extend into the perineum below or even to the rectum and anus are common (Id. ¶ 8). Dr. Lerner maintains that the severity of a tear is categorized according to the depth of the tear and the tissues that are affected and sequelae of perineal lacerations include chronic perineal pain, pelvic floor injury, dyspareunia and incontinence that may persist for years after delivery (Id. ¶¶ 9-10). Dr. Lerner opines that in Plaintiff second stage of labor (pushing) was not even a minute long and there was no time to perform perineal massage or to apply warm compresses before delivery and that to a reasonable degree of medical certainty, there is no evidence that the defendants committed any departure from the standard of care d d Pa bab (Id. ¶12). D da a c d-degree perineal laceration and sulcus laceration were the results of a precipitous vaginal delivery and also common in first time vaginal deliveries, that they were an inherent risk of delivery and not caused by the actions, or inactions, taken by the defendants (Id. ¶ 12). Dr. Lerner opines that based upon a review of the records and deposition testimony, defendants used the proper technique for a repair of a second-degree laceration and the repair was proper given the friable tissue the doctors encountered (Id. ¶ 16). Dr. Lerner notes that on October 31, 2017, Plaintiff signed a consent form for prenatal and obstetrical services that permitted, among other things, vaginal delivery and that listed potential risks and complications and on November 1, 2017, Plaintiff 3 3 of 5 [*FILED: 4] KINGS COUNTY CLERK 03/29/2021 12:25 PM INDEX NO. 523591/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/29/2021 signed a consent form permitting Dr. Mahmoud to perform an exam under anesthesia and repair the vaginal laceration that included an explanation of the risks, benefits and alternatives to the procedure (Id. ¶ 24). Based on a review of the consent forms, records and deposition testimony, Dr. Lerner opines that the defendants ba dPa dc (Id. ¶ 24). Dr. Lerner concludes that to a reasonable degree of medical certainty, the defendants met the standard of care in the performance of the vaginal delivery and the repair of lacerations sustained during said delivery and that the injuries claimed including, abnormal healing of vaginal lacerations; infections; dyspareunia; perineal pain; perineal and sulcus tenderness; rectovaginal bleeding; and weak sphincter are all common sequelae of vaginal delivery regardless of whether a patient sustains lacerations (Id. ¶ 28). In opposition, plaintiff submits an expert affirmation from Dr. Martin Gubernik, M.D., a physician board certified in Obstetrics and Gynecology, whose opinion is based upon a review of the pleadings, d a c ,D .L A a a d a a Pa (P a E b A: Expert Affirmation ¶¶ 1-2). Dr. Gubernik opines that upon a review of the records and deposition testimony, Pa ac a a a c ca d a d d a b a db Md M d a Dr. Martinez, and that their efforts which subsequently required the removal of the stitches by Dr. Mahmoud c ca d a a dc b d Pa (Id. 10). Dr. Gubernik further opines that Drs. Mahmoud and Martinez should have examined Plaintiff for a possible hematoma prior to the initial repair of the laceration, and that an examination under anesthesia did not require the re-opening of the prior repair and could have been performed with a scope so that removal of the stitches and repeated stitching would have been unnecessary (Id. ¶ 11). As a result of the suturing completed by the defendants during the initial repair and subsequent repair, Dr. Gubernik opines that Plaintiff developed granulation tissue (thin band of tissue) between her labia and that Plaintiff requires a revision surgery to correct the repair (Id. ¶ 13). Dr. Gubernik states that during his examination of the Plaintiff, he observed scarring on her external perineum, an enlarged vagina and scarring on her anal sphincter which he opines will require surgery and is a direct result of improper repair by the defendants and their failure to diagnose and treat the damage (Id. ¶ 14). Dr. Gubernik concludes that to a reasonable degree of medical certainty, the defendants did not meet the standard of care in a Pa Pa a ac a a, a a d a d b ca a a c a d a and that the damage to b a d d, a a d received proper care (Id. ¶ 16). In reply, defendants maintain that D . G b affirmation contains nothing more than conclusory statements and misconstrues the evidence in the case. Defendants state a D .G b a irmation fails to explicitly address the inherent risks of vaginal delivery. Defendants further state that Dr. Gubernik does not account for the fact that he examined Plaintiff close to eight (8) months after the repair was completed by defendants nor does he state what kind of surgery is required to address the perineal and sphincter scarring or why scarring indicates the need for surgery at all. D da 4 4 of 5 a a D .G b a a a [*FILED: 5] KINGS COUNTY CLERK 03/29/2021 12:25 PM INDEX NO. 523591/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 03/29/2021 show any negligence by the defendants a a Pa a d a ca db any negligence by the defendants. To prevail on a cause of action for medical malpractice, the plaintiff must prove that defendant d a d d a ca d acc dc a a acc d d ,d da d ca ac c a a a c a ac a a d d 2005]). C b da ab a c d a a a a a b a d da d b d a da d a (lulo v. Staten Is. Univ. Hosp., 106 b d , ac b from accepted practice and containing an opinion ca a a . 2013]). O c a d c ac c , a d (Stukas v. Streiter, 83 AD3d 18, 23 [2d. Dept. 2011]). On a motion for AD3d 696, 697 [2d. D d a da d a a da a ad a ac ac (Johnson v. Queens-Long Is. Med. Group, P.C., 23 AD3d 525, 526 [2d. Dept. c a d ca a a a a db c ac c a c d d c a d da d establish the essential ca a d (Deutsch v. Chaglassian, 71 AD3d 718, 719 [2d. Dept. 2010]). Where the parties have submitted conflicting expert reports, summa d d b a d; [ ] c c d b ca b db a (Id.). Here, defendants met their prima facie burden. They submitted the expert affirmation of Dr. Jodi P. Lerner, M.D., who described the standard of care in the performance of a vaginal delivery and laceration repair and affirmed that the treating physicians did not deviate from this standard of care during the delivery or subsequent laceration repairs. T opinions constitute competent evidence, in that they are based on the medical records, bill of particulars, and deposition testimony of the parties. In opposition, Plaintiff produced an expert affirmation, from a physician certified in Obstetrics and Gynecology, attesting to departures from accepted standards of medical practice, and that these departures a a ca Pa .Pa , ba d d ca records, deposition testimony, bill of particulars, and his own examination of the Plaintiff raises triable issues ac . D c c ,d da c (See Deutsch, 71 AD3d at 719). Acc d ,d da denied. This constitutes the decision and order of the Court. ENTER: __________________ J.S.C. HON. PAMELA L. FISHER 5 5 of 5 a d a d d

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