Heafy v Gutman

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Heafy v Gutman 2021 NY Slip Op 33624(U) January 20, 2021 Supreme Court, Suffolk County Docket Number: Index No. 617201/2016 Judge: William G. Ford 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. INDEX NO. 617201/2016 FILED: SUFFOLK COUNTY CLERK 01/25/2021 03:43 PM NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 01/25/2021 SHORT FORM ORDER INDEX No. 61720U2016 CAL. No. 201902048MM SUPREME COURT - STATE OFNEWYORK I.A.S. PART 38 - SUFFOLK COUNTY PRESENT: Hon. MOTIONDATE WILLIAM G. F'ORI) 3/16/20 (002 & 003) ADJ, DATE tu5t20 Mot. Seq. # 002 MotD Mot. Seq. # 003 MD Justice of the Supreme Court X DAVIS & FERBER, LLP Attorney for Plaintiff 1345 Motor Parkway Islandia, New York 1 1749 NANCYHEAF'Y, Plaintiff, FUMUSO KELLY SWART FARRELL, LLP Attorney for Defendant - Gulman 1 10 Marcus Blvd., Suite 500 Hauppauge, New York 11788 -against- BARBIERO, BISCH & O'COIINOR, LLP Attorney for Defendants - ll'est and Stony Brook Univ. Radiologt Faculty Practice Corp. I.REDERICK GUTMAN, M.D., STEVEN WEST, M.D., and STOIYY BROOK UNIVERSITY RADIOLOGY FACULTY PRACTICE CORPORATION, 320 Carleton Avenue, Suite 7500 Central Islip, New York I 1722 Defendants. x Upon the following e-filed papers read on these motions for summarv iudsment: Notice of Motion and supporting papers dated F Facul D and Ston fendants S Notice of Motion and supporting papers bv defendant Frederick Gutman, M.D.. dated Februarv 20. 2020; Answering Affidavits and supporting papers bv plaintiff. dated September 21. 2020; Replying Affidavis and supporting papers by!9&!d4$!Sl9.y9! D.O and supporting papers nlversr N vember Practice November 5 Frederick 3 2 ; Replying Affrdavits it is, ONDERED that the motion (seq. 002) by deiendants Steven West, D.O., and Stony Brook University Radiology Faculty Practice Corporation, and the motion (seq. 003) by defendant Frederick Gutman, M.D., are consolidated for purposes of this determination; and it is [* 1] 1 of 7 FILED: SUFFOLK COUNTY CLERK 01/25/2021 03:43 PM NYSCEF DOC. NO. 104 INDEX NO. 617201/2016 RECEIVED NYSCEF: 01/25/2021 HeaS v Gutman Index No. 61720112016 Page 2 ORDERED that the motion by defendants Steven West, D.O., and Stony Brook University Radiology Faculty Practice Corporation, for summary judgment dismissing the complaint against them is granted solely to the extent provided herein, and is otherwise denied; and it is further ORDERED that the motion defendant Frederick Gutman, M.D., for summary i udgment dismissing the complaint against him is denied. This action was commenced by plaintiffNancy Heaff to recover damages for injuries she allegedly sustained from August 24,2015 through September 15,2015, due to the medical malpractice of defendants, while a patient at Stony Brook University Hospital Medical Center in Stony Brook, New York. By her bill of particulars, plaintiff alleges, as to defendant Steven West, D.O., and, vicariously, defendant Stony Brook University Radiology Faculty Practice Corporation, that they misinterpreted plaintiff s MRI scans, and failed to diagnose plaintiff s pre-existing hemonhagic infarcts, which led to her receiving unnecessary treatment for leptomeningeal cancer. As to defendant Frederick Gutman, M.D., plaintiff alleges that he, inter alia, administered unnecessary treatment, performed unnecessary surgery, failed to diagnose her pre-existing hemorrhagic infarcts, and improperly placed an Ommaya reservoir. Plaintiff also asserts causes ofaction for lack of informed consent. Defendants Steven West, D.O., and Stony Brook University Radiology Faculty Practice Corporation, (collectively, the West defendants) now move for summary judgment in their favor, arguing that their treatment ofplaintiff was at all times within the standard ofcare, that their acts or omissions were not a proximate cause of plaintiff s alleged injuries, and that a claim for lack of informed consent is not appropriate in these circumstances. In support oftheir motion, the West defendants submit, among other things, transcripts ofthe parties' deposition testimony, certified copies ofplaintiff s medical records, and an expert affidavit of Mark Novick, M.D. Defendant Frederick Gutman, M.D., also moves for summary judgment in his favor, arguing that he installed plaintiff s Ommaya reservoir at the request ofher oncological team, that it was not his duty to confirm plaintifls diagnosis prior to surgery, and, thus, he did not deviate from the standard ofcare. In support of his motion, Dr. Gutman submits, among other things, transcripts of the parties' deposition testimony, and certified copies of plaintiffs medical records. It is undisputed that plaintiffwas diagnosed with acute myelocytic leukemia (AML) in December of2014. She had two prior bouts ofcancer approximately 25 years earlier. The first was uterine cancer, which was entirely resolved through the performance of a hysterectomy. Then, approximately seven months later, she was diagnosed with breast cancer, which required a lumpectomy and 28 radiation treatments to resolve. She began treatment for her leukemia in January 2015 with nonparty Michael Schuster, M.D., an oncologist. Dr. Schuster prescribed chemotherapy, which she underwent on an inpatient basis at Stony Brook University Hospital Medical Center (SBUHMC). While undergoing chemotherapy at SBUHMC, she began experiencing irregularities in the vision in both of her eyes. On August 25, 2015, plaintiff underwent an MN examination of her brain, which showed abnormalities. Believing cancer had spread to plaintiffs brain, plaintiff s oncological team requested Dr. Gutrnan place an Ommaya reservoir in her head, which would facilitate the administration of chemotherapy directly to the aflected regions. On August 28,2015, cerebrospinal fluid was extracted from plaintiff for clology [* 2] 2 of 7 FILED: SUFFOLK COUNTY CLERK 01/25/2021 03:43 PM NYSCEF DOC. NO. 104 INDEX NO. 617201/2016 RECEIVED NYSCEF: 01/25/2021 Heafy v Gutman Index No. 617201/2016 Page 3 testing. On August 30, 2015, Dr. Gutman surgically installed an Ommaya reservoir, prior to the results of plaintiff s cyology becoming available. Following the placement of the Ommaya reservoir, plaintiff was administered a chemotherapy via the device on September 6, 2015. However, such treatments were discontinued shortly thereafter, as it was discovered that the cy.tological studies ofher spinal fluid revealed no malignant cells present. She was discharged from SBUMHC on September 12,2015. Dr. Frederick Gutman testified that he is a neurosurgeon licensed to practice in New York, that ce(ified in neurological surgery, and that he is an associate professor of neurosurgery at Stony Brook University. He stated that he is employed by the "Faculty Practice Plan" and the State of New York. Dr. Gutrnan testified that while has little or no independent memory of treating plaintiff, his records indicate that he flrst met her on August2Sor 29,2015, when he was summoned by Dr. Huda Salman from plaintiff s "oncology team" lor a neurosurgery consultation regarding the potential placement of an Ommaya reservoir. Dr. Gutman explained that an Ommaya reservoir is a perforated tube that goes tkough a patient's skull and into a ventricle in his or her brain. Attached to the perforated tube is a reservoir that remains on top ofthe patient's skull, but beneath the scalp. He indicated that the purpose ofan Ommaya reservoir is to provide access to the patient's spinal fluid, so that intrathecal chemotherapy medication can be introduced thereto. Asked to explain what his understanding ofwhy an Ommaya reservoir was requested in plaintiff s case, he testified that plaintiff "was receiving chemotherapy for a diagnosis of intrathecal spread" ofher leukemia. he is board Dr. Gutman testified that prior to performing the surgical placement of the Ommaya reservoir, he would have performed a brief physical examination of plaintiff and reviewed her most MRI report, dated August 25,2015, which was prepared by Dr. Steven West. Asked whether he reviewed the MRI films of plaintiff s brain upon which the report was based, he stated that "by [his] usual practice, [he] absolutely would have," but does not specifically recall doing that in this case. Dr. Gutman indicated that Dr. West's MRI report recorded that plaintilf had "leptomeningeal enhancement which could imply involvement of tumor." However, Dr. Gutman denied ordering, or reviewing, a cyology report prior to performing surgery. Shown a cytology report, which the Court notes was "reported" September 2,2015, regarding a sample taken August 28,2015, indicating that no malignancy was present in plaintiff s spinal fluid, he testified, in essence, that while that specific specimen was free of malignancy, it would not serve as definitive evidence of a complete lack of malignant cells. Dr. Gutman stated that he relied upon the conclusions of plaintifls oncologists regarding the need for an Ommaya reservoir, and did not independently confirm her diagnosis. However, he conceded that had he known of plaintiff s negative cltology result prior to installing the Ommaya reservoir, he would have "done further revief' with plaintiffs oncology team and, had they discovered that her cancer had not spread to her brain, he would have aborted the procedure. Dr. Gutman testified that on August 29, 2015, prior to her surgery, he performed a cursory examination of plaintiff s mental status and explained the rationale behind placing an Ommaya reservoir, as well as the altematives. He stated that he would have informed plaintiff of the potential risks involved, which included "hemorrhages, brain injury, infection, seizure, as well as the general risks of anesthesia," then obtained her signature on the consent form. Dr. Gutman indicated that plaintifPs Ommaya reservoir placement surgery was performed the following day, and was uneventful, except for "a small amount of bleeding along the catheter track," which was remedied by electrocautery. He also [* 3] 3 of 7 FILED: SUFFOLK COUNTY CLERK 01/25/2021 03:43 PM NYSCEF DOC. NO. 104 INDEX NO. 617201/2016 RECEIVED NYSCEF: 01/25/2021 Heafy v Gutman Index No. 61720112016 Page 4 testified that he took a sample ofplaintiffs spinal fluid during the operation and that later analysis of that sample revealed no malignancy. Dr. Gutman indicated that plaintiff was examined on the night of August 30, 2015, and again on August 31, 2015, at which time plaintiff reported experiencing weakness in her left side and increased sleepiness, which indicated a possible stroke. Dr. Steven West testified that he is a neuroradiologist licensed to practice medicine in New York, and is employed by the State of New York and by "CPMP." He stated that he reviewed MRI films of plaintiffs brain on August 25, 2015 and drafted a report documenting the conclusions he drew therefrom. Dr. West indicated that immediately prior to interpreting her August 25, 2015 MRI films, he reviewed images from an earlier CT scan of plaintiff s brain. He testified that the sho( medical history that accompanied plaintiff s MRI films noted that she had a "[h]istory of AML and symptoms of amaurosis fugax," which is visual phenomenon described by patients "as a shade coming down over the eyes," or transient visual loss. Dr. West stated that plaintiff s MRI films revealed an anomaly in her brain consistent with either a subacute skoke or a neoplasm, which is a tumor, but explained that it is difficult to differentiate the two. He indicated that in an attempt "to make a more accurate diagnosis," he instructed the resident assisting him, Dr. Uzair Sarmast, to place a telephone call to the physician who ordered the MRI scan, Dr. Schuster. Dr. West testified that he witnessed Dr. Sarmast's side of the conversation with Dr. Schuster over the telephone, and that, in sum and substance, Dr. Schuster confirmed that plaintiffhad not experienced any symptoms ofa stroke, such as left-side weakness or sensory deficits, only amaurosis fugax. Based upon Dr. Schuster's representations, plaintiffs history of AML, and the inability of the MRI films to provide additional differentiation, Dr. West determined that the observed anomaly in plaintiff s brain was "conceming for leukemic involvement." Dr. Mark Novick submits an affidavit on behalf of the West defendants, wherein he states that he is licensed to practice medicine in Florida, is board certified in radiology, and that he has been a practicing radiologist for more than 30 years. Dr. Novick indicates that in preparation for rendering an opinion in this matter, he reviewed the pleadings, transcripts of the panies' deposition testimony. plaintiff s certified SBUHMC records, and Dr. Gutman's records pertaining to plaintiff. He states that, based upon her medical records and the deposition testimony, plaintiff was administered chemotherapy treatments for her AML between February I 1, 2015, and July 16,2015. In August of 2015, plaintiff complained of vision changes, which prompted Dr. Schuster to order an MRI scan of her brain, with the instruction to "assess Amurosis Fugax." The MRI scan was conducted with, and without, IV contrast on August 25, 2015, and the resultant images were analyzed by Dr. West, who also compared them to images obtained by a CT scan on April 30, 2015. Dr. Novick avers that Dr. West "visualized abnormal enhancements, at the posterior frontal lobe and portions of the parietal and occipital lobes," which supported a differential diagnosis of subacute stroke or, given plaintiffs multiple cancer diagnoses, a tumor. Dr. West sought further information from Dr. Schuster, who denied plaintiff had experienced any signs of stroke which, in relation to the MRI findings, would manifest as left side weakness of left side sensory deficits. Dr. Novick opines, to a reasonable degree of medical and radiologic certainty, that "there were no depfitures from the standard of care" by the West defendants. Specifically, he states that plaintifls August 25, 2015, MRI films were correctly interpreted and that, based upon his own review ofsuch films, there are "three areas of abnormality which resemble leukemic infiltrates." Dr. Novick further [* 4] 4 of 7 FILED: SUFFOLK COUNTY CLERK 01/25/2021 03:43 PM NYSCEF DOC. NO. 104 INDEX NO. 617201/2016 RECEIVED NYSCEF: 01/25/2021 Heaff v Gutman Index No. 61720112016 Page 5 opines that because the areas of abnormality "have good circulation," exhibit a "lack of cerebral edema," and their "infiltrative pattem resembles a leukemic process," they point away from a diagnosis of stroke. He avers that Dr. West's consultation with Dr. Schuster, seeking additional clinical information, was appropriate. Further, he opines that given an absence olstroke symptoms, the next step, prior to the implantation of an Ommaya reservoir, should have been the confirmation, by plaintifls oncological team using cy,tology, of malignant cells in plaintiffs cerebrospinal fluid. In conclusion, Dr. Novick opines that Dr. West's role in plaintifls care ceased upon his drafting of the MRI report, and that it was plaintiffs oncological team, including Dr. Schuster, who determined, based upon its own independent review of the MRI films, plaintiff s treatment plan going forward. A party moving for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence ofany material issues of fact" (Alvarez v Ptospect Hosp.,68 NY2d 320,324,508 NYS2d 923,925 [1986]). Failure to make such showing requires denial ofthe motion, regardless ofthe sufficiency ofthe opposing papers (lVinegrad v New York Univ. Med. Ctr., 64 NY2d 85 l, 853, 487 NYS2d 3 I 6, 3 I 8 [1985]). Ilthe moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues offact which require a trial ofthe action (.ree Vega v Restani Constr. Corp., 18 NY3d 499, 942 NYS2d 13 l20l2l). Mere conclusions, expressions ofhope, or unsubstantiated allegations are insufficient to raise a triable issrrc (see Zuckerman v City of New York, 49 NY2d 557,427 NYS2d 595 [1980]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmovingpafi (see Ortiz v Varsity Holdings, LLC,18 NY3d 335,339, 937NYS2d ls7, 1s9 [2011]). A defendant seeking summary judgment in a medical malpractice action "must make a prima facie showing either that there was no departure from the accepted community standards of medical care, or that his or her acts were not a proximate cause of the plaintiffls injuries" (Pinnock v Mercy Med" Ctr., 180 AD3d 1088, I l9 NYS3d 559 [2d Dept 2020]). Once the defendant has made such a showing, "the plaintiff, in opposition, must 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" (Keane v Dayani,178 AD3d 797,798,1 14 NYS3d 93 [2d Dept 2019]). Generally, conflicting expert affirmations require that the ultimate determination ofthe action be by a trier of fact (see LeJkowilz v Kelly,170 AD3d 1 148, 96 NYS3d 642 [2dDept 2019f; Feinbers v Feit,23 AD3d 517, 806 NYS2d 661 [2d Dept 200s1). ofaction to recover damages based on lack of informed consent, a plaintiff must prove (1) that the person providing the professional treatment failed to disclose altematives thereto and failed to inform the patient ofreasonably foreseeable risks associated with the treatment, and the altematives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Gilmore v Mihail,174 AD3d 686, 688, 105 NYS3d 504 [2d Dept 2019] [quotation marks and citations omiuedl). "To establish [* 5] a cause 5 of 7 FILED: SUFFOLK COUNTY CLERK 01/25/2021 03:43 PM NYSCEF DOC. NO. 104 INDEX NO. 617201/2016 RECEIVED NYSCEF: 01/25/2021 Heafo v Gutman Index No. 61720112016 Page 6 The West defendants established a prima facie case of entitlement to summary judgment in their favor (see generally Alvarez v Prospect Hosp., supra). Through the deposition testimony and the expert affirmation submitted, they demonstrated, prima facie, that Dr. West's interpretation of plaintiff s August 25,2015 MRI films was within the standard of care. Dr. West, as well as the West defendants' expert, represented that the abnormalities observed in plaintiff s brain were indicative of two potential conditions. Following consultation with plaintifls treating oncologist, and considering plaintiff s apparent lack of stroke symptoms, Dr. West exercised his professional judgment in raising the "concem" in his MRI report ofpotential spread ofcancer to plaintiffs brain. Further, they established that the reading of MRI films was not a procedure for which informed consent needed to be obtained, as no "affirmative violation ofthe plaintiffs physical integrity" occurred (Samer v Desai, 179 AD3d 860, 864, l16NYS3d 377 l2d Dept 2020l). The burden then shifted to plaintiffto raise a triable issue (see generally Vega v Reslani Conslr. Corp., supra). Dr. Gutman, however, failed to establish a prima facie case of entitlement to summary judgment in his favor. Dr. Gutman's motion, having been made more than 120 days after the filing of the note of issue,isuntimely(seeCPLR3212[a];BrillvCityof NewYork,2NY3d648,781NYS2d261 [2004]). However, assuming, arguendo, that such motion was deemed timely and was determined on its merits in the interest ofjudicial economy, the outcome would be unchanged. Dr. Gutman submitted no expert affirmation in support ofhis arguments, nor by his testimony did he establish that he had no duty to confirm the infiltration ofcancer into plaintifls brain, by obtaining cytology results prior to operating thereupon. Nor did Dr. Gutman demonstrate why he did not delay implantation of the Ommaya reservoir until such time as plaintifls cl.tology and flow c),tometry results were reported on September 2,2015, and September 3, 2015. As to plaintifl s cause of action alleging lack of informed consent, Dr. Gutman failed to establish that plaintifls execution ofa consent form, which plaintiff acknowledged in her testimony, "complied with the prevailing standard for such disclosures applicable to reasonable practitioners performing the same type ofprocedure, and failed to assert that a reasonably prudent person in the plaintiffs position would not have declined to undergo the procedure if he or she had been fully informed" (Kadanoff v lYhitlow, ,2020 NY Slip Op 08052 [2d Dept 2020]). In light of plaintiff s testimony that she met Dr. Gutman for the first time on the moming of her surgery and that he did not inform her ofthe purpose, risks, or altematives to the surgery, a triable issue remains. Accordingly, the motion by defendant Frederick Gutman, M.D., for summary judgment dismissing the complaint against him is denied. _AD3d In opposition, plaintiffs argue that the expe( affidavit submitted on behalfofthe West defendants is speculative because their expe( relied upon incomplete or incorrect information. Specifically, plaintiff avers that Dr. West never personally spoke to Dr. Schuster, and never personally confirmed that plaintiff was not experiencing symptoms of a stroke. Plaintiff further argues that even if the West defendants had confirmed plaintiff was not suffering symptoms of a stroke, the possibility of a stroke being responsible for the abnormality seen in plaintiff s MRI should have been noted in the MRI report. In essence, plaintiff avers that Dr. West acted outside the scope of his role as radiologist by focusing on one diagnosis, ultimately proven wrong, to the exclusion of another. Plaintiff submits, among other things, transcripts of defendants' deposition testimony, an expert affirmation ofJordan Haber, M.D., an expert affirmation of fuchard Lechtenberg, M.D., and various medical records. [* 6] 6 of 7 INDEX NO. 617201/2016 FILED: SUFFOLK COUNTY CLERK 01/25/2021 03:43 PM NYSCEF DOC. NO. 104 RECEIVED NYSCEF: 01/25/2021 Heafy v Gutman Index No. 61720112016 Page 7 In his affirmation, Dr. Jordan Haber states that he is licensed to practice medicine in New York, and that he is board certified in radiology. He opines, based upon his review of, among other things, ptaintiff s CT scans, MRI scans, the transcripts of Dr. West and Dr. Gutman's deposition testimony, and the expert affidavit of Dr. Novick, that while "it is conceivable that changes of the leptomeninges and cortices of [plaintiffs] right frontal parietal and occipital lobes can be affected with leukemic implants . . the possibility exists that the aforesaid changes also may be entirely attributable to multiple ischemic cortical infarctions which should have been further explored." Dr. Haber indicates that Dr. West "departed from good and accepted radiological practice when he specifically excluded the possibility of a hemorrhagic infarction." In conclusion, Dr. Haber opines that Dr. West should have included all possible causes ofthe brain abnormalities he observed, rather than narrowing the focus of his report. He states that Dr. West's omission of possible hemonhagic infarction from his MRI report caused Dr. Gutman to rely on solely on such report and not confirm plaintiff s diagnosis prior to implantation of the Ommaya reservoir. Initially, the Court notes that plaintiff has not submitted arguments or evidence raising a triable issues on her claims regarding the West defendants' alleged failure to obtain informed consent. Accordingly, that cause of action is dismissed as to them. However, through the expert affirmation of Dr. Haber, plaintiff has raised a triable issue as to Dr. West's interpretation of plaintiff s August 25, 2015 MRI films, as well as the manner in which he drafted the MRI report derived therefrom. Specifically, a question of fact remains as to whether Dr. West should have recorded in his MRI report the possibility of subacute infarction, in addition to a possible neoplasm, as explanations ofthe brain abnormalities observed. The Court cannot say at this juncture, as a matter of law, that Dr. West's actions did not contribute to, or serve as a causal link in a chain ofevents resulting in plaintiff s alleged injuries. Accordingly, the West defendants' motion for summary judgment dismissing plaintifls claims of medical malpractice are denied. Dated: January 20,2021 Riverhead, New York 4-D WILLIAM G, FORD, J.S.C. FINAL DISPOSITION [* 7] X 7 of 7 NON.FINAL DISPOSITION

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