Opinion
104237/02.
Decided July 1, 2005.
Defendants move for summary judgment.
Plaintiff Sondra Applebaum presented to the emergency room of the defendant Mount Sinai Medical Center with complaints of sustained chest pressure radiating to the left arm, associated with shortness of breath worsening for a few days (discharge summary, Ex J to motion). She was admitted to the hospital and she underwent a left heart catherization on December 10, 1999, utilizing a right femoral artery approach. She was awake during the procedure. Defendant Dr. Sharma was the attending during the procedure and defendant Nurse Practitioner Mary Duffy was the assistant. The procedure was performed in the premises of defendant Mount Sinai Hospital. The angiogram revealed non-obstructive coronary artery disease and a normal left ventricle, so no intervention was performed.
After the procedure Ms. Applebaum "was returned to the Emergency Department's Clinical Decision Unit, where she began to complain of positional dizziness and nausea. She vomited several times and began to complain of right ear pain. Bloody drainage was expressed from the right ear and some cerumen was removed" (Affirmation of Dr. Slater, ¶ 7).
Dr. Slater submitted an affirmation in support of defendants' motion in which he asserts that there was no error by Dr. Sharma in advancing the catheter wire since the catherization was successful and "without any undue complications, and the patient did not suffer any injury or insult from the performance of the procedure" (Id, ¶ 8). He adds that although the procedure is sometimes performed by two attending physicians, it was not a departure to perform the procedure with a trained nurse practitioner whose only role was to make the incision and insert the wires into the artery so that Dr. Sharma could advance the wires.
He also adds that cardiac catherization is very common but that hearing loss is not a known complication so that there is no medical basis to include hearing loss in an informed consent.
Dr. Salter opines, to a reasonable degree of medical certainty, that arterial plaque could not be dislodged, "travel up the arterial system and impact only the extremely small internal auditory artery, as alleged. . . . (Also), if a plaque were dislodged that had the impact alleged by Mrs. Applebaum, there would be objective evidence of brain infarction, and there is no such evidence for Mrs. Applebaum" (Id, ¶ 12).
Dr. Slater's review of the medical literature did not unearth "a single reported instance of a cardiac catherization procedure resulting in blockage to the internal auditory artery. . . . Hearing loss has never been known to result from plaque dislocation during a cardiac catherization procedure" (Id, ¶ 13). Finally, he states that "(d)islocation of arterial plaque is a known risk of cardiac catherization, and injury resulting from dislodged plaque restricting arterial blood flow is a known risk of cardiac catherization. Therefore, even if a plaque dislodged during the procedure was proven to have insulted the internal auditory artery, this would not establish a deviation from the standard of care" (Id, ¶ 14).
Dr. Slater's affirmation establishes prima facie entitlement of the defendants to summary judgment. The burden accordingly shifts to plaintiffs to adduce evidence establishing the existence of a genuine issue of material fact. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Winegrad v. New York University Medical Center, 64 NY2d 851 (1985).
Plaintiffs, opposing the motion for summary judgment, have elected not to submit the affidavit of a physician as to either negligence or proximate cause. Rather, plaintiffs' counsel relies upon the doctrine of res ipsa loquitur to establish both. He particularly relies upon Kambat v. St. Francis Hosp., 89 NY2d 489 (1997), in which the Court of Appeals said:
"Once a plaintiff's proof establishes the following three conditions, a prima facie case of negligence exists and plaintiff is entitled to have res ipsa loquitur charged to the jury. First, the event must be of a kind that ordinarily does not occur in the absence of someone's negligence; second, it must be caused by an agency or instrumentality within the exclusive control of the defendant; and third, it must not have been due to any voluntary action or contribution on the part of the plaintiff.
To rely on res ipsa loquitur a plaintiff need not conclusively eliminate the possibility of all other causes of the injury. It is enough that the evidence supporting the three conditions afford a rational basis for concluding that `it is more likely than not' that the injury was caused by defendant's negligence. . . . Res ipsa loquitur thus involves little more than application of the ordinary rules of circumstantial evidence to unusual events, and it is appropriately charged when, `upon a commonsense appraise of the probative value' of the circumstantial evidence . . . (the) inference of negligence is justified" (Id, 89 NY2d at 494-495) (citations omitted).
"Widespread consensus exists, however, that a narrow category of factually simple medical malpractice cases requires no expert to enable the jury reasonably to conclude that the accident would not happen without negligence. Not surprisingly, the oft-cited example is where a surgeon leaves a sponge or foreign object inside the plaintiff's body" (Id, 89 NY2d at 496) (citations omitted).
Thus, the Court of Appeals held that expert testimony was not required to conclude that an 18-by-18 inch laparotomy pad is not usually discovered inside a patient's abdomen after a hysterectomy absent negligence. The defendants' alternative theory that the patient swallowed the pad did not bar the applicability of res ipsa loquitur.
Plaintiff relies upon two other cases. In Schmidt v. Buffalo General Hospital, 278 AD2d 827 (4th Dept, 2000), the Court held that in a multiple defendant action in which plaintiff relies upon res ipsa loquitur, the plaintiff does not have to identify the negligent actor. That rule is especially appropriate where the plaintiff has been rendered unconscious to undergo surgical treatment by a team and manifestly cannot identify the negligent actor.
In Thomas v. New York University Medical Center, 283 AD2d 316 (1st Dept, 2000), the Court held that res ipsa loquitur applies when the plaintiff, unconscious from anesthesia, fell off the operating table. "Here, it can hardly be debated that anesthetized patients do not fall from operating table in the absence of negligence." Id, 283 AD2d at 317.
Assuming arguendo, that the second and third conditions set forth in Kombat, supra, for the application of res ipsa loquitur have been met, plaintiffs have failed to rebut defendant's prima facie showing of entitlement to summary judgment because they have failed to even raise a genuine issue of fact as to whether the first condition in Kombat has been met.
Plaintiff's counsel declares that "the injury could not have occurred but for the negligence of the defendants . . ." (Opposing Affirmation, ¶ 4). He urges that an expert's affirmation is not needed because the plaintiff's injury was not an inherent risk of the procedure and because the timing of the injury creates a causal connection between the surgery and the deafness, vertigo and dizziness plaintiff sustained (Opposing Affirmation, ¶ 4 D).
He also urges that there is an issue as to whether the procedure was started without Dr. Sharma. He urges, relying on the deposition of Ms. Applebaum, that the procedure was initiated by two nurses, and that Ms. Applebaum immediately at the start of the procedure felt a pain going through her face as the catheter was inserted. She claimed that she screamed and ". . . said your killing me because I felt like I was being electrocuted. Two of them (the nurses) came running over to me" (Sondra Applebaum ebt, pp 184-185 and 187). Counsel adds that Dr. Sharma was asked at his EBT (p. 61) whether Sondra Applebaum complained of pain in any part of her body during the procedure and he answered affirmatively. However, counsel omits that Dr. Sharma testified (EBT, p. 61) that plaintiff said that she was having chest pain. Plaintiff's counsel also states, again relying on Sondra Applebaum's ebt, that sometime after she felt the pain she heard a male voice, presumably Dr. Sharma's, and the male "started to yell at the nurse very loudly and said why did you do that, you did it too fast and didn't they teach you; didn't they show you?" (Applebaum ebt, p. 19)
Plaintiff's counsel notes that at his ebt, Dr. Sharma said that the catherization is performed by the nurse practitioner, with the senior fellow and an attending (Sharma ebt, p. 22, line 12). However, based on Ms. Applebaum's testimony he urges that only a nurse practitioner and a nurse were present at the time of the negligence. He also notes that Dr. Sharma in his ebt said that another doctor, Dr. Pan, was present, but the catherization report does not indicate that Dr. Pan was present. The argument about who performed the procedure is elaborately besides the point in terms of substantive malpractice. Even assuming arguendo, as plaintiff urges, that someone other than Dr. Sharma, whether a nurse practitioner or not, was making the incision and inserting the wires when the incident allegedly occurred, any issue as to who was doing something at the time of the incident does not tell us that there was or was not negligence at the time by the person performing the procedure at that instance. As defendants argue, catherizations are now common. Nonetheless, this injury is simply unknown in the literature and unknown in defendants' expert's experience. This reality distinguishes this case from the three cases cited by plaintiff. This is not the kind of case where we can assume from the happening of the injury that it was caused by negligence. This is not like leaving a laparotomy pad behind in a patient. This is not like having an anesthetized patient fall from a table during a procedure. Those matters obviously involve negligence. Also, here, the patient was manifestly awake during the procedure. Even the conversation she claims occurred in which a male voice, presumably Dr. Sharma, allegedly yelled at a nurse ". . . why did you do that, you did it too fast . . ." does not indicate what was allegedly done too fast, much less that the rapid action caused any injury. Even if the alleged conversation in fact occurred, it does not aid the plaintiff's res ipsa loquitur claim that the ear injury would not have occurred without negligence. Again, an ear injury is evidently unknown in the medical literature as a result of a cardiac catherization. Dr. Stacy, a consultant said in a letter to Dr. Nagler, dated January 24, 2000 (Opposing Affirmation, Ex G) states that "I suspect that the catheter dislodged a plaque or a clot which split into a branch affecting the right lower brain stem sensory pathways and also the right cochleovestibular artery. The latter resulted in a nerve infarction, while the former dissipated completely. I think she has an asymptomatic meningioma" (emphasis added). Even if his letter were in affidavit or affirmation form, which it is not, Dr. Stacy asserts his theory only as a suspicion. Moreover, he does not in any way suggest that the operator of the catheter was negligent. As noted above, defendant's expert, Dr. Slater, states dislodgement of plaque during a catherization is a known risk of cardiac catherization, and injury from dislodged plaque restricting arterial blood flow is also a known risk of that procedure. Consequently, even if plaque was dislodged and caused the ear injury, this does not establish negligence, and it does not establish that the ear injury is an injury that ordinarily does not occur without negligence. ". . . (T)he burden of a party opposing summary judgment is not met . . . by the unsubstantiated assertions or speculations of plaintiff's counsel that a defendant may have breached a possible duty of care . . . ( Alvarez v. Prospect Hosp., supra, at 327). Nor is that burden met by an unverified suspicion of a consultant physician. Plaintiffs accordingly have failed to rebut the prima facie showing of entitlement to summary judgment made by defendants, and summary judgment must therefore be granted to defendants.
The three causes of action set forth in the complaint sound first in malpractice, second in malpractice plus an accusation that the procedure was performed by someone unqualified to perform it, and, third, a derivative claim. There is reference in a bill of particulars to a lack of informed consent, but that does not substitute for, nor is it the equivalent of, a cause of action in the complaint for lack of informed consent.
Settle order granting summary judgment dismissing the entire complaint.