Opinion
No. 40915.
07-31-2015
Suzanne BARNER, Individually and Administrator of the Estate of John M. Barner, Deceased, Plaintiff, v. Christopher R. DEPNER, M.D., The Memorial Hospital of William F. and Gertrude F. Jones, Inc. d/b/a Jones Memorial Hospital; Nancy H. Alt, R.D.M.S, R.D.C.S., R.T.; Altrasound Services Inc. ; The University of Rochester; and Barbara J. Kircher, M.D., Defendants.
Porter Nordby Howe LLP (Eric C. Nordby, Esq., of counsel), for plaintiff. Colucci & Gallaher P.C. (Marylou K. Roshia, Esq., of counsel), for defendants Depner and Jones Memorial Hospital. Osbord Reed & Burke LLP (Christian C. Casini, Esq., of counsel), for defendants Kircher and University of Rochester.
Porter Nordby Howe LLP (Eric C. Nordby, Esq., of counsel), for plaintiff.
Colucci & Gallaher P.C. (Marylou K. Roshia, Esq., of counsel), for defendants Depner and Jones Memorial Hospital.
Osbord Reed & Burke LLP (Christian C. Casini, Esq., of counsel), for defendants Kircher and University of Rochester.
THOMAS P. BROWN, J.
Decision and Order
Plaintiff's complaint alleges that on November 8, 2010 at about 12:26 p.m., John Barner, a stonemason by trade, was standing atop a scaffolding and repairing a chimney when he suffered a heart attack and fell to the ground twenty feet below. An ambulance took him to defendant Jones Memorial Hospital (JMH) in Wellsville NY, where he was pronounced dead at 1:47 p.m. The death certificate listed the cause of death as "acute pulmonary emboli."
Plaintiff's First Amended Complaint, p. 6 and Verified Bill of Particulars to Defendant Depner, p. 3.
Affirmation of Michael S. Porter, Esq., affirmed March 23, 2015, p. 7.
It is undisputed that earlier that day, starting at approximately 8:45 a.m., an echocardiogram had been performed on Mr. Barner by defendant Nancy Alt, a sonographer. The test had been ordered by Mr. Barner's primary care physician, defendant Depner. Upon viewing the echocardiogram, Alt became concerned about what appeared to be an abnormality in Mr. Barner's heart. Her professional corporation, Altrasound Services Inc. (Altrasound), had a contract with defendant University of Rochester (U of R) to have its cardiologists read and interpret echocardiograms and report the results. Defendant Kircher was a physician employed by the U of R who was assigned to perform that task. She read the echocardiogram and, between 12:30 and 12:35 p.m., telephoned Dr. Depner to report the result. According to Dr. Kircher, Dr. Depner then informed her that Mr. Barner had already "arrested" and was on his way to JMH.
Alt deposition, p. 89.
Affirmation of Michael S. Porter, Esq,, affirmed March 23, 2015, p. 11.
Kircher Deposition, p. 93.
On March 6, 2012, Suzanne Barner, Mr. Barner's widow, filed a lawsuit against defendants Depner, JMH, Alt, Altrasound, Kircher and U of R. Her amended complaint contained four causes of action: wrongful death-medical malpractice, pain and suffering-medical malpractice, wrongful death-lack of informed consent and pain and suffering-lack of informed consent.
On August 29, 2014, defendants Kircher and U of R moved for summary judgment dismissing plaintiff's complaint. In support of their motion, the Court has read the affidavit of Christian C, Casini, Esq., sworn to August 28, 2014 and the reply affidavit of Christian C. Casini, Esq., sworn to April 10, 2015. In opposition to the motion, the Court has read the affirmation of Michael S. Porter, Esq., sworn to March 23, 2015, as well as two expert affirmations dated March 20, 2015.
The experts' unredacted affidavits were submitted to the Court for in camera inspection [Carrasquillo v. Rosencrans, 208 A.D.2d 488, 617 N.Y.S.2d 51 (2nd Dept.1994) ].
On December 8, 2014, defendants Depner and JMH moved for summary judgment dismissing plaintiff's complaint. In support of their motion, the Court has read the affidavit of Marylou K. Roshia, Esq., sworn to December 3, 2014 and the affirmation of Fredric Hirsh, M.D., affirmed December 29, 2014. In opposition to the motion, the Court has read the affirmation of Michael S. Porter, Esq., sworn to March 23, 2015, as well as two expert affirmations dated March 20, 2015.
Id.
The Court heard oral argument on both motions on April 27, 2015 and reserved decision.
On this date, plaintiff's counsel stated they did not oppose the motion for summary judgment that had been previously filed by defendants Alt and Altrasound, and so the Court did not hear oral argument on that motion.
Motion by Defendants Kircher and University of Rochester
Contentions of the parties:
Defendants Kircher and the University of Rochester have moved for summary judgment on the grounds that John Barner was not their patient. Because they owed no duty of care to someone who was not their patient, they argue, they cannot be held liable for medical malpractice or lack of informed consent.
In support of their motion, these defendants offer the depositions of Dr. Kircher, Dr. Depner, and sonographer Nancy Alt. These three defendants all agree that John Barner first presented to Dr. Depner on November 3, 2010, complaining of shortness of breath. Dr. Depner ordered several tests, including a stress test and chest X-rays to be performed by JMH and an echocardiogram from Defendant Alt. As previously noted, defendant Alt began to administer the echocardiogram to Mr. Barner at 8:45 a.m. on the morning of November 8, 2010. At 9:35, she finished the echocardiogram and told Mr. Barner he could leave. She called Dr. Kircher at 9:45 a.m., left a message and Dr. Kircher called her back "within just a few minutes." Alt told Dr. Kircher that she "saw something in [Mr. Barner's] right ventricle" and "didn't know what it was." She asked Dr. Kircher to read it and report the results to Dr. Depner. Dr. Kircher asked her "if the patient was short of breath or in distress" and she replied "no." She then arranged to have a CD of the test driven over to Dr. Kircher's office. According to defendant Alt, Dr. Kircher agreed to look at the CD as soon as she could, and to call Dr. Depner with the results.
Affidavit of Christian C. Casini, Esq., sworn to August 28, 2014, p. 3.
Id. At pp. 4–5.
Alt deposition, p. 90.
Alt deposition, p. 126.
Id. At p. 127.
Alt deposition, p. 126.
At her deposition, Dr. Kircher recalls that she received a call from defendant Alt on November 8, 2010 between 9:30 and 9:45 a.m. Alt told her that the echocardiogram"showed some sort of mass" in the right side of Mr. Barner's heart, and that she wanted her to review it. She also told her that the patient was not in distress and had already left her office. Dr. Kircher testified that she told Alt she would "look at it as soon as she got a break [ ... ] I didn't say when [ ... ] I just acquiesced that I would, you know, read the echo."
Kircher deposition, p. 42.
Id., pp. 42–3, 617 N.Y.S.2d 51.
Id., p. 44, 617 N.Y.S.2d 51.
While viewing the CD of the echocardiogram, sometime between 12:00 and 12:30 p.m. on November 8, Dr. Kircher observed what she thought could be a thrombus in the right ventricle of Mr. Barner's heart. According to Dr. Kircher, she called Dr. Depner immediately after viewing it, between 12:20 and 12:35 p.m., with the intention of advising him that Mr. Barner should be hospitalized. According to Dr. Kircher, Dr. Depner advised her that Mr. Barner was "arresting" and already in or on his way to the emergency room.
Id., p. 69, p. 81, 617 N.Y.S.2d 51.
Id. p. 89, 617 N.Y.S.2d 51.
Id. p. 94, 617 N.Y.S.2d 51.
In his deposition, Dr. Depner testified that during the midmorning of November 8, he took a phone call from defendant Alt, who conveyed her concerns about Mr. Barner's condition. He testified that he told Alt they should wait to hear from Dr. Kircher. He recalled that Dr. Kircher called him sometime after noon and before 1 p.m. on November 8 and advised him that Mr. Barner's right ventricle was not functioning well and that there could be a clot. He testified that immediately after hearing from Dr. Kircher, he called the Barner home and was informed that Mr. Barner was already in the hospital .
Depner deposition, p. 231.
Depner deposition, p. 238–240.
Id., pp. 246–7, 617 N.Y.S.2d 51.
In their motion, Dr. Kircher and the U of R argue that the record is clear and undisputed that Dr. Kircher offered no advice to defendant Alt, and that "as no advice was provided and none communicated to the patient, there could obviously be no reliance upon the advice of Dr. Kircher by the decedent." Absent such advice, they contend, no physician-patient relationship can be implied and no liability for medical malpractice can result.
In opposition to the motion, plaintiff responds that an implied physician-patient relationship can arise when a physician gives advice to a patient, even if that advice is communicated through another health care professional. Plaintiff argues that medical malpractice can occur by act, omission or failure, and here consisted of a failure to give advice. Specifically, plaintiff argues, after defendant Alt alerted her to the possible presence of a life-threatening blood clot in Mr. Barner's heart, Dr. Kircher failed to advise defendant Alt to detain him, and failed to immediately notify Dr. Depner and Mr. Barner of this threat. Plaintiff further alleges that Dr. Kircher failed to instruct her staff to immediately notify her when the CD arrived in her office, which delayed her reading of the CD. Plaintiff also alleges that Dr. Kircher failed to review the CD on a "stat" basis, choosing instead to continue seeing her patients.
Plaintiff's cardiology expert opines that Dr. Kircher assumed a duty to interpret a patient's test results and that her failure to promptly review and interpret Mr. Barner's test results constituted a deviation from the applicable standard of care. He also opines that Mr. Barner's death was avoidable if Dr. Kircher had responded in a timely manner to the medical information reported to her by defendant Alt. He specifically alleges that Dr. Kircher's doing nothing until 12:00 or 12:30 p.m. was a "a deviation (by omission) of the applicable standards of care."
Analysis:
Motions for summary judgment require the Court to search the record and determine whether it presents triable issues of material fact [Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498, 144 N.E.2d 387 (1957) ]. The evidence must be construed in a light most favorable to the non-moving party [see, David D. Siegel, New York Practice, Section 281 (Thomson/West 2005) citing Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 (3rd Dept.1964) ]. Once the party moving for summary judgment has met its prima facie burden of showing an absence of issues of material fact [Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986) ], the non-moving party must then point to triable issues of material fact in order to stave off summary judgment.
Motions for summary judgment are supposed to be supported by affidavits from individuals having personal knowledge of the material facts. Here, the parties have submitted the affidavits of their attorneys. But because they incorporate deposition testimony from individuals having personal knowledge, as well as other relevant proofs in admissible form, these attorney affidavits are not deficient [see, CPLR section 3212(b) ; Woods v. Zik Realty Corp. ., 172 A.D.2d 606, 568 N.Y.S.2d 146 (2nd Dept.1991) ].
The issue presented by this motion is whether, and if so, when, a physician-patient relationship existed between Mr. Barner and Dr. Kircher. "Such a relationship is created when the professional services of a physician are rendered to and accepted by another person for the purposes of medical or surgical treatment" [Garofalo v. State of New York, 17 A.D.3d 1109, 794 N.Y.S.2d 269 (4th Dept.2005) (internal quotations marks omitted) ]. Defendants are correct that in the absence of such a relationship, they cannot be held liable for medical malpractice [Gedon v. Bry–Lin Hosps., 286 A.D.2d 892, 730 N.Y.S.2d 641 (4th Dept.2001) ]. Plaintiff is correct that such a relationship need not arise out of a patient's formal consultation with a physician. It may be implied when a physician gives advice to a patient, even if that advice is communicated through another health care professional [Campbell v. Haber, 274 A.D.2d 946, 710 N.Y.S.2d 495 (4th Dept.2000) ]. Whether a physician's giving of advice furnishes a sufficient basis upon which to conclude that an implied physician-patient relationship had arisen is ordinarily a question of fact for the jury [Id. ].
Plaintiff claims these defendants are not entitled to summary judgment because they have not met their initial burden of showing there was no physician-patient relationship. Specifically, plaintiff alleges that defendants cannot carry this burden without submitting an affidavit from Dr. Kircher demonstrating that there are no issues of fact in that regard. However, in Cygan v. Kaleida Health, 51 A.D.3d 1373, 857 N.Y.S.2d 869 (4th Dept.2008), a physician's deposition testimony was found to be sufficient for that purpose.
Potential issues of fact as to whether Dr. Kircher had a physician-patient relationship with Mr. Barner are limited to Dr. Kircher's two consultations on November 8, 2010 with the two health care professionals who had treated Mr. Barner–Dr. Depner, his primary care physician, and Nancy Alt, the sonographer who performed his echocardiogram. The depositions of defendants Alt and Kircher agree that Dr. Kircher was consulted by defendant Alt between 9:30 and 9:45 a.m. and that Kircher at that time did nothing more than ask whether Mr. Barner exhibited certain symptoms and agree to review his echocardiogram. The depositions of defendants Kircher and Depner agree that Dr. Kircher did not offer advice, communicate a diagnosis or recommend treatment until sometime between noon and 1 p.m when she spoke to Dr. Depner, by which time, according to both of their depositions, Mr. Barner had already "arrested" and was in or on his way to JMH.
Because the depositions are unanimous that Dr. Kircher did not render advice or treatment to Mr. Barner, either directly or to another health care professional, until her telephone call to Dr. Depner on November 8, defendants have met their initial burden of showing that there are no triable issues of fact whether a physician-patient relationship existed prior to that time.
In response to defendants' motion, plaintiff's cardiology expert states in his affidavit that Dr.Kircher assumed a physician's duty to Mr. Barner when she agreed to Nancy Alt's request that she review his echocardiogram. However, caselaw is clear that something more than a physician's examination, or agreement to examine, is required before a physician-patient relationship can be implied [Gedon v. Bry–Lin Hosps., 286 A.D.2d 892, 730 N.Y.S.2d 641 (4th Dept.2001) (examination of patient alone, without recommendations, advice or treatment, did not raise issue of fact as to existence of physician-patient relationship); Garofalo v. State of New York, 17 A.D.3d 1109, 794 N.Y.S.2d 269 (4th Dept.2005) (physician's scheduling of appointment with patient did not establish physician-patient relationship]. That plaintiff's medical expert opines to the contrary is unavailing. The issue of whether a duty is owed by a consulting physician to a physician and ultimately, his patient, is a question of law, not medicine; the expert's proffered opinion on that issue "transcends the bounds of his competence and intrudes upon the exclusive prerogative of the court" [Sawh v. Schoen, 215 A.D.2d 291, 627 N.Y.S.2d 7 (1st Dept.1995) ].
Plaintiff relies on the cases of Campbell v. Haber, supra, and Rogers v. Maloney, 77 A.D.3d 1427, 909 N.Y.S.2d 592 (4th Dept.2010) in support of her contention that there are issues of fact whether there is a physician-patient relationship. But those cases are distinguishable in that there was some proof in each case that the consulting physician offered an opinion to the treating physician. Here, the depositions are unanimous that Dr. Kircher, the consulting physician, offered no opinion, advice or recommendation to Nancy Alt or Dr. Depner until she read the echocardiogram and called Dr. Depner.
In sum, plaintiff is unable to point to a triable issue of fact as to the existence of a physician-patient relationship prior to Dr. Kircher's telephone call to Dr. Depner, and consequently as to defendants' liability for medical malpractice during that time. Since plaintiff's "lack of informed consent" causes of action also fall under the rubric of medical malpractice [Spinosa v. Weinstein, 168 A.D.2d 32, 571 N.Y.S.2d 747 (2nd Dept.1991) ], neither can these defendants be found liable on that theory for that period of time.
Clearly, there are triable issues of fact whether a physician-patient relationship was created when Dr. Kircher telephoned Dr. Depner and conveyed her diagnosis and recommendation for treatment. But the gravamen of plaintiff's complaint against Dr. Kircher was not that she failed to act competently at that time, but that she failed to act before that, in time to prevent Mr. Barner's heart attack. In plaintiff's bill of particulars against Dr. Kircher and the U of R , plaintiff alleges that "On November 8, 2010 at approximately 12:25 p.m., Mr. Barner fell from scaffolding, having suffered a heart attack as a direct and proximate result of defendants' failure to timely diagnose and treat his acute pulmonary emboli." Plaintiff alleges that Dr. Kircher's malpractice occurred before that time: "The dates and time period of the negligent acts and omissions of defendants Kircher and U of R were alleged to be on November 8, 2010 from approximately 10:00 a.m. to 12:25 p.m. Plaintiff's expert affidavit complains of Dr. Kircher and Dr. Depner was that "there was never any mention by Dr. Depner or Dr. Kircher of the risk of PE (pulmonary embolism ) [ ... ] until it was too late."
See pp. 3 and 7 of Exhibit J. to affidavit of Christian C. Casini, Esq., sworn to August 28, 2014.
Id. p. 7, 617 N.Y.S.2d 51.
See pp. 14–15 of plaintiff's cardiology expert dated March 20, 2015.
By the same reasoning, if Dr. Kircher assumed a duty to act when she telephoned Dr. Depner, a breach of that duty could not have been the proximate cause of the injury to Mr. Barner, because it is undisputed that her phone call came too late, and that he had already suffered the heart attack by that time. In other words, if Dr. Kircher did not have a physician's duty to act prior to calling Dr. Depner, she could not have committed malpractice, and if she assumed a physician's duty to act when she called Dr. Depner and committed malpractice, it could not have caused plaintiff's injury.
Defendants have thus shown that they are entitled to summary judgment dismissing plaintiff's complaint.
Motions by Defendants Depner and Jones Memorial Hospital
Defendant Depner has moved for summary judgment on the grounds that he did not deviate from the applicable standard of care in his treatment of Mr. Barner, and that nothing he did or did not do contributed to Mr. Barner's demise. Plaintiff has opposed the motion.
Defendant Jones Memorial Hospital (JMH) has moved for summary judgment on the grounds that it has no vicarious liability for Dr. Depner's conduct because Dr. Depner was not its employee. In further support of its motion, JMH alleges that plaintiff's bill of particulars fails to assert any affirmative acts of negligence by the hospital, and therefore JMH cannot be held liable for its own negligence. In plaintiff's answering papers, her counsel states that plaintiff does not oppose JMH's motion for summary judgment.
Contentions of the Parties:
In her bill of particulars, plantiff alleges that Dr. Depner's negligent acts or omissions occurred from November 3, 2010 to November 8, 2010. Specifically, plaintiff alleges that Dr. Depner failed to diagnose Mr. Barner's pulmonary embolism (PE) on November 5, 2010 even though he presented with shortness of breath and showed significant abnormalities following an EKG and stress test. Plaintiff also alleges that Dr. Depner failed to diagnose PE on November 8, 2010 after Nancy Alt disclosed to him the significantly abnormal results of Mr. Barner's echocardiogram. As a result of Dr. Depner's failure to diagnose, plaintiff alleges, Mr. Barner was never advised that he had this life threatening condition and never received recommendations for its treatment, which included hospitalization, bed rest and anticoagulant therapies, all of which caused him to suffer a pulmonary embolism on November 8, 2010 at 12:25 p.m. and then, tragically, to die at 1:47 p.m.
In support of his own motion, Dr. Depner offers the affirmation of Fredric Hirsh M.D., a board certified family practice physician with thirty-eight years of family practice experience, who states that Dr. Depner's care of Mr. Barner was "at all times appropriate and consistent with the applicable standard of care."
Affidavit of Fredric Hirsh, affirmed December 29, 2014, p. 4.
Dr. Hirsh notes that upon first presenting to Dr. Depner on November 3, Mr. Barner did not complain of chest pains and showed a near normal EKG and oxygen saturation level. The diagnostic possibility of PE was discounted, consistent with the applicable standard of care, according to Dr. Hirsh, because Mr. Barner did not show significant oxygen desaturation following exercise and did not have chest pains.
Dr. Hirsh notes that Dr. Depner ordered the proper tests, and that in the absence of an apparent medical emergency, their performance on November 5, 2010 was within the applicable standard of care. The tests included a chest X-ray, a stress test, a second EKG and a pulmonary function test, to be performed at JMH, and an echocardiogram, to be performed at Nancy Alt's clinic. Dr. Hirsh states that the chest X-ray and pulmonary function tests were essentially normal, but that the stress test showed a significant decrease in Mr. Barner's functional capacity, with his oxygen saturation falling to 88%, as well as an abnormal bundle branch block. According to Dr. Hirsh, these developments were not a "real indication" of PE and did not require Mr. Barner to be hospitalized, referred to a specialist or undergo additional tests.
Id., p. 8, 617 N.Y.S.2d 51.
Dr. Hirsh also states that, after Nancy Alt completed Mr. Barner's echocardiogram"in a timely fashion" on November 8, 2010, she called Dr. Depner, but that he, being a family practitioner, could not and did not read or interpret the echocardiogram. Therefore, according to Dr. Hirsh, he had not yet acquired any additional diagnostic information that would have indicated that Mr. Barner should be hospitalized. Upon learning from Dr. Kircher that Mr. Barner's echocardiogram showed a possible PE, Dr. Depner immediately called Mr. Barner's home and the emergency room at JMH to advise them of the diagnosis.
Id., p. 9, 617 N.Y.S.2d 51.
Dr. Hirsh concludes, to a reasonable degree of medical certainty, that Dr. Depner "properly treated and assessed Mr. Barner given the signs and symptoms present" and "acted at all times reasonably and with the skill expected of a family practitioner"
Id., p. 10, 617 N.Y.S.2d 51.
Plaintiff's experts paint quite a different picture. According to one, a board certified cardiologist, when Dr. Depner first saw Mr. Barner on November 3, 2010, Mr. Barner's EKG showed non-specific changes and his oxygen saturation levels were abnormal. On November 5, he notes, Mr. Barner, during his stress test, developed a "right bundle branch block" and his oxygen saturation fell to 84%. Both these clinical findings are, he opines, "very abnormal" and "suggestive of PE." He further states that Dr. Depner misinterpreted these tests results and that PE should have been "at the top of Dr. Depner's list of differential diagnoses because Dr. Depner's other tests were normal (i.e., chest x-ray, pulmonary function)" and "there was no other good explanation for his shortness of breath." The misinterpretation caused Dr. Depner not to refer Mr. Barner for further testing, which, in the expert's opinion, would "very likely" have resulted in a correct diagnosis of PE and appropriate treatment with anticoagulant therapies on November 5, 2010. Instead, he opines, Dr. Depner permitted Mr. Barner to "simply go home that day" which was "a gross deviation from the applicable standards of care for any doctor, whether he or she is a primary care physician or a cardiologist." and that this and other deviations "were a substantial cause of Mr. Barner's fall and death on 11/08/10."
Plaintiff's cardiologist's affirmation dated March 20, 2015, p .4.
Id. p. 5, 617 N.Y.S.2d 51.
Id.
Id. p. 6, 617 N.Y.S.2d 51.
Even worse, the expert opines, was Dr. Depner's response on the morning of November 8, 2010, after Nancy Alt told him that her echocardiogram of Mr. Barner showed "something in his right ventricle," which was that he "would wait to hear from Dr. Kircher" about the echocardiogram results. The expert states that Dr. Depner should have then asked Dr. Kircher to review the echocardiogram on a "stat" basis and immediately inform Mr. Barner "that he might be suffering from a suddenly fatal condition" and see to it that he was immediately hospitalized. His failure to promptly undertake these actions, he opines, constituted additional, substantial deviations from the applicable standard of care, that were a substantial cause of Mr. Barner's death.
Id. p. 10, 617 N.Y.S.2d 51.
Plaintiff's other expert, a family practice physician, states that, in his opinion, "family practice physicians are not qualified to perform cardiac stress tests" , and that it was a deviation from the applicable standard of care for Dr. Depner to do so on November 5, 2010. His opinion is confirmed, he states, by the fact that Dr. Depner misinterpreted the results and failed to refer Mr. Barner to a hospital's emergency room. He also agrees with plaintiff's cardiologist that on November 8, 2010, Dr. Depner should not have waited to hear from Dr. Kircher after Nancy Alt informed him of the results of her echocardiogram. He opines that these departures from accepted medical practice were a substantial cause of Mr. Barner's death later that day.
Plaintiff's family practice expert's affidavit dated March 20, 2015, p. 2.
Plaintiff's cardiologist summarizes these and other alleged missteps in the treatment of Mr. Barner as "a parade of errors (and deviations from the applicable standards of care) that cost him his life."
Plaintiff's cardiology expert's affidavit dated March 20, 2015, p. 15.
Dr. Depner's attorney responds to plaintiff's experts by pointing out that Mr. Barner's chronic shortness of breath was not consistent with acute PE, and that this fact, combined with an absence of chest pain and acceptable oxygen saturation, demonstrates that Dr. Depner's failure to diagnose acute PE was not a deviation from the applicable standard of care, especially since he was not qualified to read and interpret Mr. Barner's echocardiogram.
Analysis:
A prima facie case of medical malpractice is made out when a plaintiff establishes that there was deviation from accepted practice and that the deviation was a proximate cause of injury [Salter v. Deaconess Family Medicine Ctr. 267 A.D.2d 976 (4th Dept .1999) ]. A defendant moving for summary judgment in a medical malpractice case has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby [Sawyer v. Kaleida Health, 112 A.D.3d 1341, 977 N.Y.S.2d 833 (4th Dept.2013) ]. If the burden is met, the plaintiff may then demonstrate that there are triable issues of fact by "submitting an expert affidavit attesting to a departure from accepted practice and containing the attesting expert's opinion that omissions or departures were a competent producing cause of the injury" [Latona v. Roberson, 71 A.D.3d 1498, 897 N.Y.S.2d 378 (4th Dept.2010) (internal quotation marks omitted) (parenthetical material omitted) ], or by relying on medical records submitted by a defendant to raise a triable issue of fact [Sawyer, supra]. An expert affidavit that is speculative or unsupported by medical evidence in the record or other evidentiary foundation has no probative force and is insufficient to withstand summary judgment [Wilk v. James, 108 A.D.3d 1140, 969 N.Y.S.2d 359 (4th Dept.2013) ].
Here, defendant Depner, by submitting the affidavit of Dr. Hirsh, has met his initial burden of showing that Dr. Depner, at every juncture of his treatment of Mr. Barner, did not deviate from what Dr. Hirsh describes as the applicable standard of care. Dr. Hirsh's affidavit establishes that Dr. Depner ordered the appropriate tests given Mr. Barner's condition, made a differential diagnosis that was consistent with Mr. Barner's symptoms and test results, and upon learning the results of the echocardiogram, as interpreted by Dr, Kircher, acted immediately to advise Mr. Barner of his life-threatening condition and refer him to the emergency room at JMH.
Still, in opposing Dr. Depner's motion, plaintiff's expert affidavits point out numerous, triable issues of fact as to whether Dr. Depner's treatment conformed to the applicable standard of care. These include whether Dr. Depner was qualified to perform Mr. Barner's stress test, whether Mr. Barner should have been immediately hospitalized, or referred for more tests or to a specialist following the abnormal results of his November 5, 2010 stress test and EKG, whether on November 8, 2010, following Nancy Alt's discussion with Dr. Depner concerning the echocardiogram, Mr. Barner should have been immediately referred to the emergency room or whether, after that discussion, Dr. Kircher should have been asked to interpret that test on a "stat" basis. Plaintiff's expert affidavits cite to Mr. Barner's medical records and the depositions of the parties, and are not speculative, vague or conclusory.
For these reasons, even though Dr. Depner has met his initial burden on his motion, the Court finds that plaintiff in her answering papers has raised triable issues of fact that require the motion be denied.
Conclusion
Accordingly, for the foregoing reasons and upon the foregoing authorities, it is hereby
ORDERED that Dr. Kircher's and the University of Rochester's motion for summary judgment is hereby granted, and as against these defendants plaintiff's complaint and all cross-claims are dismissed; and it is further
ORDERED that Jones Memorial Hospital's motion for summary judgment is hereby granted, and as against this defendant plaintiff's complaint is dismissed and it is further
ORDERED that Dr. Depner's motion for summary judgment is hereby denied.
The court's clerk is directed to schedule a telephonic conference with counsel for plaintiff and counsel for Dr. Depner.
This Decision shall also constitute the Order of this Court
It is so ORDERED.