Opinion
Index 2018-50451
03-05-2021
SHARI CIORCIARI, as Executrix of the Estate of RHODA WEISS, Deceased, Plaintiff, v. ELANT AT FISHKILL, INC., d/b/a ELANT AT WAPPINGERS FALLS; VASSAR BROTHERS HOSPITAL; HUDSON VALLEY HEMATOLOGY-ONCOLOGY ASSOCIATES RELP, d/b/a HUDSON VALLEY CANCER CENTER; JULIA SCI IAEFER-CUTIELO, M.D.; JASON E. KUBERT, M.D., and PONCIANO L. REYES, JR., M.D., Defendants. Motion Seq. Nos. 1, 2, 3
Unpublished Opinion
DECISION AND ORDER
MCLOUGHLIN, J., Acting Supreme Court Justice
The following papers were read and considered in deciding the motions for summary' judgment filed by Defendants Hudson Valley Hematology-Oncology Associates RLLP, d/b/a Hudson Valley Cancer Center (hereinafter "HVHOA"), Julia Schaefer-Cutillo, M.D. ("Dr. Schaefer-Cutillo"), and Ponciano L. Reyes, Jr., M.D. ("Dr. Reyes") (occasionally referred to collectively as "the HVHOA Defendants") [Sequence No. 1], Defendant Vassar Brothers Hospital ("VBH") [Sequence No. 2], and Defendant Jason E. Kubert, M.D. ("Dr. Kubert") [Sequence No. 3]:
NYSCEF Docket Numbers
Motion Sequence No. 1
55-77, 146-154-157
Motion Sequence No. 2
78-94, 116-122, 136-144, 158
Motion Sequence No. 3
95-115, 128-134, 159-169
Plaintiff commenced this action sounding in medical malpractice with the filing of a summons and verified complaint on February 20, 2018. Thereafter, on July 24, 2018. Plaintiff filed an amended summons and amended verified complaint [see NYSCEF Docket Nos. 20-21]. With regard to defendants Schaefer-Cutillo and HVHOA, Plaintiff claims that the failure to properly diagnose and treat Rhoda Weiss' multiple myeloma led to the progression of the disease, causing extensive myelomatous lesions throughout Ms. Weiss' spine, hip, femur, and pelvis. Plaintiff claims that defendants VBH. Dr. Kubert, and Dr. Reyes were negligent during Ms. Weiss' presentation to VBH on September 8, 2016, resulting in her suffering a right femur fracture requiring surgical fixation and in-patient rehabilitation.
Following joinder of issue and the completion of discovery, the Defendants moved for summary judgment. Plaintiff opposed each of the motions. For the reasons set forth herein, defendants 11VI1OA and Julia Schaefer-Cutillo's motion is granted in part and denied in part, defendant Reyes' motion is granted, defendant VBH's motion is granted, and defendant Kubert's motion is granted.
Rhoda Weiss passed away on October 22, 2016. On December 18, 2017, the Dutchess County Surrogate's Court (Hon. James D. Pagones) issued Letters Testamentary to Shari Ciorciari, Decedent' daughter and the executrix other estate.
All defendants except Elant at Fishkill, Inc. filed motions for summary' judgment.
FACTUAL BACKGROUND
Rhoda Weiss (hereinafter "Decedent") began treating with Dr. Schaefer-Cutillo at HVHOA on September 5, 2014. She had been referred by her then primary care physician. Dr. Cormier, based upon a finding of an elevated protein level (M-spike of 2.1 g/dl) in routine blood work. At the time of the referral, Decedent was 79 years-old with a documented history of smoking 1-2 packs of cigarettes per day, chronic COPD, pancreatic insufficiency, and other comorbidities. During this initial visit. Dr. Schaefer-Cutillo ordered a comprehensive work-up, including a bone marrow biopsy, skeletal survey, and blood tests [see HVHOA Records, NYSCEF Docket No. 73; Care Mount Medical Records, NYSCEF Docket No. 74],
Decedent returned to Dr. Schaefer-Cutillo on September 19, 2014 for a bone marrow biopsy and skeletal survey. The bone marrow biopsy showed malignant plasma cells in her bone marrow were 1520% and the skeletal survey was negative. Dr. Schacfer-CutiIio's differential diagnosis was monoclonal gammopathy of undetermined significance (MGUS) v. smoldering multiple myeloma (SMM) v. lymphoma [HVHOA Records, NYSCEF Docket No. 73].
On October 3, 2014, a repeat CBC panel showed a slight increase in Decedent' M-spike (from 2.1 to 2.3). Dr. Schaefer-Cutillo, noting these lab results, the absence of renal failure, elevated calcium, bone lesions and/or end organ damage, diagnosed Decedent with smoldering multiple myeloma ("SMM") [id. ]. During the October 3 visit, Dr. Schaefer-Cutillo discussed the SMM diagnosis with Decedent, including possible treatment options in the event the disease progressed to full-blown multiple myeloma [Schaeffer-Cutillo Dep. Tr., NYSCEF Docket No. 69, pp 66-67], She also informed Decedent that she would need to be continually monitored, involving an office visit and blood work every three months and scans approximately every six months [id. at p 71]. Dr. Schaefer-Cutillo ordered a PE 1 C 1 and MR1 of the spine and pelvis and a follow-up visit in three months [HVHOA Records, NYSCEF Docket No. 73], A pelvic/spine MRI was performed on October 30, 2014, which did not show any bone lesions consistent with multiple myeloma. A PET/CT scan was conducted on November 4, 2014. This scan was also negative for bone lesions [W.].
Decedent had her next office visit with Dr. Schaefer-Cutillo on February 20, 2015. A CBC panel showed a decreased level of hemoglobin (down to 9.3 from 11.8 in November of 2014). Based on the decreased hemoglobin level, Dr. Schaeffer-Cutillo ordered a follow-up CBC be done in one month. Decedent returned to HVHOA on March 20, 2015 for further blood tests. The CBC results from this visit showed an improved hemoglobin level (up to 10.3 from 9.3) [Id.]- A CBC panel from June 12, 2015 showed that Decedent' hemoglobin level had stabilized. Dr. Schaefer-Cutillo recommended a follow- up PET scan which Decedent never had performed [Schaeffer-Cutillo Dep. Tr., NYSCEF Docket No. 69, pp 118-120].
Decedent returned to Dr. Schaefer-Cutillo on October 23, 2015. She reported pain lasting for two weeks but that the pain had resolved, and she had been pain-free for two months. Dr. Schaefer-Cutillo noted that Decedent's M-spike had increased and recommended a repeat skeletal survey, mammogram, and colonoscopy. However, according to the HVHOA notes, Decedent refused to undergo any of the recommended tests [HVHOA Records, NYSCEF Docket No. 73]. Dr. Schaefer-Cutillo also noted possible renal insufficiency but bloodwork from October 23, 2015 indicated a normal creatinine level of 1.1 [M.]. A urinalysis performed on or about October 28, 2015 indicated that the total protein and M-spike were high [id.; Schaefer-Cutillo Dep. Tr., NYSCEF Docket No. 69, pp 123-124]. A report from a November 24, 2015 ultrasound of Decedent's kidneys indicated a clinical history of renal failure [HVHOA records, NYSCEF Docket No. 73, pp 128-129] and on December 15, 2015, Dr. Cormier diagnosed renal insufficiency [Care Mount Medical records, NYSCEF Docket No. 74, p 51], Dr. Schaefer-Cutillo next saw Decedent on February 17, 2016. She reviewed the results of a urine test and ultrasound that had been ordered and noted a hemoglobin level of 11.1 and the increasing trend of the M-spike [id.]. She discussed with Decedent and her daughter the need for further imaging and noted that Decedent would most likely need to commence Velcade [id.].
Decedent began the course of Velcade chemotherapy on April 28, 2016. From that date through September 14, 2016, she was on Velcade with Decadron IV weekly for three weeks with one week off [id.], From April through July, Decedent's M-spike was decreasing [id.], On September 6, 2016, Decedent underwent an MRI of the pelvis at DRA Imaging upon referral from Dr. Schaeffer-Cutillo. The MRI was interpreted by radiologist Philip Amatulle, M.D., as revealing extensive, new, myelomatous involvement throughout the pelvis, right proximal femur, and lower lumbar spine, including a new large 5x5 cm mass in the right iliac crest, complete replacement of the normal bone marrow signal of the right femur shaft extending over a region that measures approximately 7 cm long by the width of the femur, a left sacrum lesion, and innumerable other low signal bone marrow replacing lesions throughout the pelvis and lumbar spine [see Diagnostic Report, NYSCEF Docket No. 93], On September 8, 2016, Decedent underwent MRIs of the lumbar, thoracic, and cervical spine at DRA Imaging. These MRIs were also interpreted by Dr. Amatulle. The studies revealed new, extensive, myelomatous involvement of the spine with almost every level of the spine involved. Dr. Amatulle noted near complete replacement of T5 with significant amounts of tumor extending out of the posterior margin of the vertebral body to encase the cord and occupy the spinal canal. T1 was moderately compressed and almost completely replaced by tumor with compression fractures. Additional lesions of the right upper chest wall, right clavicle, and cervical spine at C5 were also noted [see Diagnostic Report, NYSCEF Docket No. 94], At 6:54 p.m. on September 8, 2016, Dr. Amatulle called defendant Ponciano Reyes, M.D., the on-call physician for HVHOA, to provide a "wet read" (an unofficial report of the MRI) as there was a "critical value" on the MRI of the spine [Reyes Dep. Tr., NYSCEF Docket No. 68, pp 37-40], In this case, the critical value - a finding on a diagnostic study that need to be addressed immediately - was the tumor encasing the thoracic spine at the T5 level causing spinal cord compression [id. at pp 51-52], There is no indication in the record that Dr. Amatulle and Dr. Reyes discussed the findings from the September 6, 2016 MRI. After being informed of the MRI results by Dr. Amatulle, Dr. Reyes called Decedent and directed her to immediately go to the Emergency Department at VBH to be admitted for further workup and evaluation [id. at pp 67-68], Decedent arrived at VBH Emergency Department at approximately 8:00 p.m. on September 8. 2016. Plaintiff Shari Ciorciari, who had driven Decedent to VBH, testified at her deposition that Decedent was able to walk independently from the parking lot, across the street, and into VBH without any assistance [see S. Ciorciari Dep. Fr., NYSCEF Docket Nos. 103-104, pp 270-271, 305], At the time Decedent presented to VBH, she lived alone, was able to ambulate independently without the need for an assistive device such as a walker or cane, and was able to drive, make her own meals, and shop independently [id. at pp 197-199, 201; see also D. Ciorciari Dep. Tr., NYSCEF Docket No. 91, pp 19, 40-41], VBH Nursing staff conducted a fall risk assessment. As a result of that assessment, Decedent was given a Morse Fall Risk Assessment Scale of 15, based upon her steady gait and no history of falls in the preceding three months. Decedent was described as "not at risk for falls" [VBH Records, NYSCEF Docket No. 106, pp 78-82].
At 9:05 p.m. on September 8, Decedent was seen and evaluated by the Emergency Department attending physician, defendant Jason E. Kubert, M.D. Decedent reported a history of chronic back pain and occasional right leg weakness when walking, but denied any pain at that time [id. at p 82; see also Kubert Dep. Tr., NYSCEF Docket No. 87, p 20], Dr. Kubert performed a physical examination which was unremarkable and specifically did not reveal any neurologic deficits such as weakness, numbness, or tingling of the lower extremities [id. at pp 82-84]. Dr. Kubert was not concerned about Decedent' ability to ambulate in the Emergency Department because she was independent in ambulation at the time of her arrival to VBH [Kubert Dep. Tr., NYSCEF Docket No. 87, pp 65-66].
At approximately 9:22 p.m., after performing his evaluation, Dr. Kubert called Dr. Reyes. Dr. Reyes recommended Decadron steroids 6 mg every six hours to relieve swelling to stop the compression of the spinal cord and admission to the oncology unit for a consult with a radiation oncologist for potential radiation therapy [VBH Records, NYSCEF Docket No. 106, p 87]. At approximately 10:50 p.m., Decedent was transferred to the oncology unit. Al 11:17 p.m., Decedent was evaluated by Nurse Karen Becker. Nurse Becker performed a Fall Risk Assessment, documenting that Decedent had no history of falls in the preceding three months and was oriented to her own ability, and assigned a Morse Fall Risk score of 15, indicating she was "not at risk for falls" [id. at pp 913-914],
On September 9, 2016, just prior to 1:42 a.m., Decedent was walking to the bathroom with Nurse Becker's assistance. Decedent denied any pain in her right leg. When Decedent lowered herself onto the toilet seat (while Nurse Becker held Decedent' right arm), Nurse Becker heard a "pop" in Decedent' right hip [id. at p 1038; Becker Dep Tr, NYSCEF Docket Nos. 89-90, pp 90, 207-208]. An x-ray performed later that day revealed a mildly displaced right proximal femoral shaft fracture [id. at p 583], On September 10, 2016, Decedent underwent an open right internal fixation of the right femur fracture at VBH I id. at p 62].
On September 22, 2016, Decedent was discharged from VBH and transferred to co-defendant Elant at Fishkill, Inc. for rehabilitation. On October 13, 2016, Decedent was transferred back to VBH from Elant at Fishkill, Inc. due to, inter alia, a large decubitus ulcer and respiratory failure [VBH Records, NYSCEF Docket No. 116], Decedent passed away on October 22, 2016. The cause of death was listed as cardiopulmonary arrest, Escherichia sepsis, and multiple myeloma [NYSCEF Docket No. 154].
DISCUSSION
Because summary judgment "deprives the litigant of its day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" [Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974)]. "But when there is no genuine issue to be resolved at trial, the case should be summarily decided" [id.], "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact" [Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 (1986)]. "Once this showing has been made ... the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" [Alvarez, supra, at 324],
"In a medical malpractice action, a defendant moving for summary judgment has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby" [Bacalan v. St. Vincents Catholic Medical Centers of New York, 179 A.D.3d 989, 991 (2d Dept. 2020) (internal quotation marks and citations omitted); see also Anonymous v. Gleason, 175 A.D.3d 614, 616-617 (2d Dept. 2019) quoting Schwartzherg v. Huntington Hosp., 163 A.D.3d 736 (2d Dept. 2018)]. "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiff's bill of particulars [Bacalan, 179 A.D.3d at 991-992; Anonymous, 175 A.D.3d at 617].
I. HVHOA Defendants (Sequence No. 1)
In her amended bill of particulars [.see NYSCEF Docket No. 63], Plaintiff claims the following acts and/or omissions of defendants Schaefer-Cutillo and HVHOA constitute malpractice: (1) the failure to prescribe, initiate or counsel Decedent to try a course of Revlimid in October 2014, February 2015, March 2015 and/or August 2015; (2) failure to timely initiate treatment on October 23, 2015 office visit or soon thereafter with symptoms of back pain, anemia, renal insufficiency and abnormal blood and urine tests; (3) failure to order and/or obtain skeletal survey and/or MRI and/or bone marrow biopsy every six months; (4) failure to order MRI until October 2015; (5) failure to repeat bone marrow biopsy; (6) failure to properly treat an uncooperative patient; (7) failure to properly communicate the need for an MRI or other scans; (8) failure of HVHOA office staff to follow-up with Decedent regarding MRIs or other scans; (9) delay in initiating Velcade treatment; (10) failure to initiate radiation therapy; (11) delay in diagnosis of bone metastasis; (12) failure to initiate treatment after "abnormal" lab results on February 24, 2015; (13) failure to perform any radiological study from November, 2014 to September. 2016; (14) failure to advise Decedent of worsening lab results; (15) failure to advise Decedent' primarycare physician of worsening lab results and provide him with medical records; (16) failure to advise Decedent of the option of joining a clinical trial; and (17) failure to review and recognize blood tests indicating that Decedent' smoldering myeloma was causing symptoms.
In her second amended bill of particulars [see NYSCEF Docket No. 66], Plaintiff claims the following acts and/or omissions of defendant Ponciano L. Reyes, Jr. M.D. on September 8, 2016. constitute malpractice: (1) failure to follow VBH policy that the admitting physician must prepare an ongoing order within two hours of a patient's arrival to a unit; (2) failure to order toileting to be done bedside with a one or two person assist; (3) failure to properly assess Decedent' risk of falls or fractures; (4) failure to take appropriate preventive measures to prevent falls or fractures; (5) failure to appreciate and treat mass on Decedent' right iliac crest, as shown in September 6, 2016 MRI; and (6) failure to order "bed rest."
The HVHOA defendants established their prima facie entitlement to judgment as a matter of law through the submission of, inter alia, an affirmation from Reed E. Phillips, M.D., an expert in the fields of Oncology and Hematology, deposition transcripts, and Decedent' medical records from HVHOA, Caremount Medical, and Vassar Brothers Hospital. Dr. Phillips is licensed to practice medicine in New-York and is board certified in the fields of Hematology and Oncology. Dr. Phillips is familiar with the standards of care of an oncologist and hematologist caring for patients with multiple myeloma and for admitting patients with multiple myeloma to a hospital [.see Phillips Aff., NYSCEF Docket No. 76, ¶¶ 1-2]. After reviewing the pleadings, medical records, and deposition transcripts, Dr. Phillips opined, to a reasonable degree of medical certainly, that the care and treatment rendered by the HVHOA defendants was in conformity with good and accepted oncologic and hematologic practice and did not result in the death of, or injury to, Decedent. Dr. Phillips' opinion "had a factual foundation in the record, and adequately addressed the allegations of the plaintiff's bill of particulars" [McGuigan v. Centereach Management Group, Inc., 94 A.D.3d 955, 956 (2d Dept. 2012), quoting Roca v. Perel, 51 A.D.3d 757. 759 (2d Dept. 2008); Chance v. Felder, 33 A.D.3d 645, 646 (2d Dept. 2006)].
The HVHOA and Vassar records submitted by the HVHOA defendants in support of their motion were not certified. However, as the plaintiff did not challenge the accuracy or veracity of the uncertified records, and relied upon them in opposing the HVHOA defendants' motion, the uncertified records are admissible and may be considered by the Court in determining the motion [Benedetto v. Tannenbaum, 186 A.D.3d 1596 (2d Dept. 2020); Tomeo v. Beccia, 127 A.D.3d 1071 (2d Dept. 2015)].
Dr. Phillips stated that the standard of care for treating patients with smoldering multiple myeloma (SMM) required the oncologist to monitor the patient's condition. The applicable standard of oncological care did not require ordering radiological studies (such as a skeletal survey, MRI. and/or CT Pet Scan) over a specific period of time. In Dr. Phillips' opinion, Dr. Schaefer-Cutillo's usual practice -employed during her care of Decedent - of ordering repeat radiological studies for patients with SMM every six months was well beyond the standard of care [id. at ¶¶ 37-39].
Dr. Phillips opined that there was no clinical indication for Decedent to undergo any form of chemotherapy in October 2014, February 2015, March 2015, August 2015, and/or October of 2015, as alleged by Plaintiff. He claims that there was no competent medical evidence to suggest that Decedent's condition had progressed to multiple myeloma until well after October of 2015. In support of this assertion, he noted that, as of October of 2015:
(i) There were no signs of end organ damage; (ii) the only complaint of pain made by Decedent lasted two weeks and resolved on its own (two months before her October 2015 visit with Dr. Schaefer-Cutillo); (iii) the slight anemia noted by Dr. Schaefer-Cutillo stabilized on its own; and (iv) all of the relevant findings on the CBC and urine tests taken as of October of 2015 were consistent with SMM and not MM [id. at ¶35].
Additionally, as of October of 2015, all radiological tests were "essentially negative and showed no sign of end organ damage or anything else consistent with MM" [id. at ¶38].
Dr. Phillips noted that the HVHOA records indicated that Decedent was non-compliant with orders for radiological testing and continuously refused to undergo tests ordered by Dr. Schaefer-Cutillo. He opined that Dr. Schaefer-Cutillo "went above and beyond in her efforts to continually urge Decedent to undergo repeat radiological studies on each of her visits in October 2015, February 2016, May 2016, June 2016, July 2016, and August 2016" [id. at ¶40]. Dr. Phillips also opined that neither Dr. Schaefer-Cutillo or the staff at HVHOA had an independent duty to follow up with Decedent and urge her to undergo the radiological tests ordered by Dr. Schaefer-Cutillo [id. at ¶42].
Dr. Phillips opined that Dr. Schaefer-Cutillo prudently recommended that Decedent commence chemotherapy in February of 2016 [id. at ¶43] but under the applicable standard of care she could have waited until September of 2016 before commencing chemotherapy [id. at ¶45|. Moreover, even if Dr. Schaefer-Cutillo had begun chemotherapy in September of 2014 (which, according to Dr. Phillips, was not indicated), the clinical course of the disease would not have changed [id. at ¶48]. Dr. Phillips also stated that Dr. Schaefer-Cutillo's decision to begin Decedent on Velcade, as opposed to Revlimid, was completely appropriate and within the standard of oncological care [id. at ¶52].
Dr. Phillips also opined that the care and treatment rendered by Dr, Reyes on September 8, 2016 comported with the applicable standard of oncological and hematological care. Dr. Phillips attested that the obligation to perform a fall-risk assessment upon admission to a hospital, as well as the determination of which fall prevention protocols are put in place, is that of the hospital nursing staff and not the admitting physician [id. at ¶58], He further opined that nothing about Decedent' presentation or condition at the time she presented to VBH on September 8. 2016. justified the nursing staff or anyone else (including Dr. Reyes) ordering bed-rest and/or non-weight bearing fall prevention measures. Decedent was appropriately scored 15 points on two separate MORSE fall risk assessments conducted by the VBH nursing staff and was thus appropriately classified as a standard or low fall risk [id. at ¶57 ].
Dr. Phillips also explained that it was not a departure from the applicable standard of care for Dr. Reyes to have failed to treat Decedent for the mass on her right iliac crest, as shown on the September 6, 2016 MRI. First, Dr. Phillips noted that the VBH medical records and Dr. Reyes' deposition testimony established that Dr, Reyes was only informed of the September 8th MRI findings, and not the findings of the September 6th pelvic MRI. Second, Dr. Reyes' role, as the admitting physician, was limited to rendering treatment for the emergent condition for which Decedent presented to VBH: the cord compression at T5, as shown on the September 8th MRI. Dr. Phillips opined that, as the admitting physician, Dr. Reyes' duty was limited to rendering care for the cord compression at T5 [id. at ¶¶63-65].
In opposition, Plaintiff offered, inter alia, the expert affirmation of Andrew Eisenberger, M.D. Dr. Eisenberger is licensed to practice medicine in New York and is presently an Associate Professor of Clinical Medicine and the Director of Benign Hematology at Columbia University Irving Medical Center. He is board certified in the field of Hematology and was board certified in oncology from 2009 through 2019 [see Eisenberger Aff, NYSCEF Docket No. 147, ¶ 1 ].
a. Treatment rendered by Dr. Schaefer-Cutillo
Dr. Eisenberger's affirmation identified three departures by Dr. Schaefer-Cutillo that Plaintiff argued create triable issues fact: (i) Dr. Schaefer-Cutillo failed to commence treatment with Velcade sooner than April 28, 2016; (ii) Dr. Schaefer-Cutillo failed to order skeletal imaging every six months; and (iii) Dr. Schaefer-Cutillo and HVHOA staff failed to follow up with Decedent to ensure that she underwent the radiological scans ordered by Dr. Schaefer-Cutillo.
Because Plaintiff did not address defendant Schaefer-Cutillo and HVHOA's prima facie showing as to the other alleged departures set forth in Plaintiff's amended bill of particulars, the motion for summary judgment is granted as to those claimed departures [see 114 Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 178 A.D.3d 757, 761-762 (2d Dept. 2019) ("Where a party fails to oppose some or all matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers may be deemed admitted as there is, in effect, a concession that no question of fact exists")].
However, with regard to the claims that Dr. Schaefer-Cutillo should have commenced treatment with Velcade sooner than April 28, 2016 and failed to perform skeletal imagining every' six months, the affirmation of Dr. Eisenberger raised triable issues of fact which must be resolved at a trial. Dr. Eisenberger opined, based upon his review of Decedent' medical records and deposition transcripts, and his experience and medical background, that Dr. Schaefer-Cutillo departed from good and accepted medical practice in failing to commence treatment with Velcade sooner than April 28, 2016 [id. at ¶ 19]. Contrary' to the HVHOA defendants' assertion, this opinion is supported by citations to the record and is more than a conclusory statement that Dr. Schacffer-Cutillo should have done something differently.
In support of his conclusion, Dr. Eisenberg stated:
"There is evidence in Dr. Cutillo's records, the records of Dr. Cormier, and in the deposition of Dr. Cutillo, that treatment should have been initiated as early as February 24, 2015, based upon the blood work from HVHOA that showed hemoglobin below 10, which meant [Decedent] was anemic. Even though the hemoglobin increased above 10 in subsequent visits the finding of progressive anemia should have prompted additional testing such as skeletal imaging or repeat bone marrow biopsy"
Moreover, Dr. Eisenberger noted "ample evidence of possible disease progression to warrant earlier treatment'' [id. at ¶20], A report from the November 24, 2015 ultrasound of Decedent's kidneys indicated a clinical history of renal failure [id.; see also HVHOA records, NYSCEF Docket No. 73, pp 128-129] and on December 15, 2015, Dr. Cormier diagnosed renal insufficiency [id.; see also Care Mount Medical records, NYSCEF Docket No. 74, p 51]. Dr. Eisenberger opined that these findings can be considered evidence of end organ damage, an indication that the SMM may have progressed to multiple myeloma.
Given the conflicting medical expert opinions, the motion for summary judgment filed by HVHOA and Dr. Schaefer-Cutillo is denied as to this claimed departure by Dr. Schaefer-Cutillo [Gentile v. Malihan, 179 A.D.3d 902 (2d Dept. 2020); Kovacic v Griffin, 170 A.D.3d 1143 (2d Dept. 2019)].
The Court also finds that the parties' submissions establish the existence of a triable issue of fact as to whether Dr. Schaefer-Cutillo ordered a scan within six months of the October 30, 2014 pelvic/spine MRI. Dr. Phillips and Dr. Eisenberger agreed that the standard of care for treatment of SMM includes conducting radiological scans no less than every six months. Contrary to Plaintiff's assertion, the HVHOA records clearly establish that a PET scan was conducted on November 4, 2014, which was negative for bone lesions [HVI1OA records, NYSCEF Docket No. 73, p 142]. However, there is a dispute as to when the next scan was ordered by Dr. Schaefer-Cutillo. The HVHOA defendants assert that Dr. Schaefer-Cutillo ordered a follow-up PET scan on June 12, 2015, but there arc no prescriptions or orders in the HVHOA records to support this, nor does the progress note from June 12, 2015 reflect that the scan was ordered. Moreover, the standard of care required that after the November 14, 2014 PET scan, the next scan should be ordered no later than May of 2015. There is no indication in the record, including the HVHOA medical records, why Decedent returned to see Dr. Schaefer-Cutillo in June (as opposed to May) of 2015, or whether Decedent was advised by Dr. Schaefer-Cutillo of the importance of having a follow-up scan no later than May. The Court is unable to resolve the dispute over this claimed departure - which necessarily involves a credibility determination - on a motion for summary judgment [Ruggiero v. DePalo, 153 A.D.3d 870, 872 (2d Dept. 2017) (a motion for summary judgment should not be granted where conflicting inferences may be drawn from the evidence or where there arc issues of credibility)].
Finally, Plaintiff failed to raise a triable issue of fact in opposition to the HVHOA defendants' prima facie showing that neither Dr. Schaefer-Cutillo or the staff at HVHOA had an independent duty to follow' up with Decedent and urge her to undergo the radiological tests ordered by Dr. Schaefer-Cutillo. Dr. Eisenberger asserted that Dr. Schaefer-Cutillo, through HVHOA staff, should have made the radiological appointment for Decedent and/or had office staff follow up with Decedent to ensure that the test was done. However, his conclusion that Decedent would have gone to these appointments if only Dr. Schaefer-Cutillo and/or HVHOA staff had followed up is speculative at best. This is especially so given Decedent's documented history of failing to comply with orders for radiological testing. Dr. Eisenberger's speculative opinion is insufficient to defeat the HVHOA defendants' prima facie showing as to this claimed departure [Schwartz v. Partridge, 79 A.D.3d 963 (2d Dept. 2020); Wagner v. Parker. 172 A.D.3d 954, 955 (2d Dept. 2019)].
The Court, searching the record, notes that VBH's expert orthopedic surgeon, Bruce Seidman [see NYSCEF Docket No.118. ¶16), and Nurse Karen Becker Bee NYSCEF Docket No. 1I7, ¶¶ 10-11] each claim that it was Dr. Reyes' responsibility to issue a bed rest order. This claim is echoed by co-defendant Dr. Kubert [see NYSCEF Docket No. 159].
Based upon the foregoing, the HVHOA defendants' motion for summary judgment dismissing the claims against HVHOA and Dr. Schaefer-Cutillo is denied solely to the extent that Plaintiff has raised triable issues of fact on the alleged departures that Dr. Schaefer-Cutillo should have commenced treatment with Velcade sooner than April 28, 2016 and failed to order skeletal imagining every six months. The motion is in all other respects granted, and the remaining departures of HVHOA and Dr. Schaefer-Cutillo set forth in Plaintiffs amended bill of particulars are dismissed.
b. Treatment rendered by Dr. Reyes on September 8, 2016
In his affirmation in opposition, Dr. Eisenberger identified three claimed departures by Dr. Reyes: (i) he failed to review and appreciate the September 6, 2016 pelvic MRI; (ii) he failed to issue a “bed rest" order upon Decedent' admission to VBH; and (iii) he failed to issue ongoing orders within two hours of Decedent' admission.
Contrary to Dr. Reyes' assertion, the Court is unable to determine as a matter of law that he. as the admitting physician, did not owe a duty to issue an order for bed rest in the event such an order was warranted. Plaintiffs opposition conceded - by not presenting facts or arguments to the contrary that the duty to perform fall risk assessments and to implement fall care plans belongs to hospital nursing staff and not Dr. Reyes. However, based upon Dr. Eisenberger's affirmation and the co-defendants' expert submissions in support of their respective motions for summary judgment, there is a material question of fact as to whether Dr. Reyes had a duty to issue a bed rest order if one was warranted.
Even if Dr. Reyes did owe a duty of care. Plaintiff failed to raise a triable issue of fact in opposition to Dr. Reyes' prima facie showing that a bed rest order was not warranted. On September 8, 2016, Decedent presented to VBH, per Dr. Reyes' instruction, for evaluation and treatment of the recently-discovered tumor at T5 and possible cord compression. Upon arriving at VBH, Decedent was able to walk from the parking lot into the emergency department without assistance. She reported no weakness or pain at that time. Two separate MORSE Fall Risk Assessments conducted by VBH nursing staff scored Decedent a 15 or "not at risk for falls." These scores were based, in part, on Decedent having a normal gait, not having a history' of falls within the preceding three months, no use of ambulatory aids, and oriented mental status.
Dr. Eisenberger did not contest the MORSE scores or the results of the physical examination of Decedent upon her presentment to VBH. Instead, he based his opinion in opposition on the findings from the September 6lh pelvic MRI. He opined that, under the applicable standard of care, the September 6thpelvic MRI, coupled with the multiple myeloma diagnosis, required that a bed rest order be issued. However, the record is clear that Dr. Reyes had not reviewed or been advised of the findings from the September 6111 MRI at the time of Decedent' admission". Dr. Eisenberger asserted that Dr. Reyes had the ability to review the September 6th MRI on his home computer and that his failure to review the MRI findings was a departure. This argument is unavailing.
Dr. Reyes' submissions establish that he was not aware of the findings from the September 6"' MRI when he admitted Decedent [see VBH medical records, NYSCEF Docket No. 75; Reyes Dep. Tr, NYSCEF Docket No. 68. pp 65-67, 85, 94-95]. Plaintiff, in opposition, agrees that Dr. Reyes did not review the MRI on September 8, 2016 [see Eisenberger Aff., NYSCEF Docket No. 147, ¶24].
"Although physicians owe a general duty of care to their patients, that duty may be limited to those medical functions undertaken by the physician and relied upon by the patient" [Matthis v. Hall, 173 A.D.3d 1162, 1163 (2d Dept. 2019); Leigh v. Kyle, 143 A.D.3d 779 (2d Dept. 2016)]. Here. Dr. Reyes, established, through the affirmation of Dr. Phillips, that:
"Dr. Reyes' role, as the admitting physician, was limited to rendering treatment for the emergent and/or urgent condition(s) for which Decedent presented to the Hospital (which, in this case, was the cord compression at T5). His role as admitting physician did not impose a general duty of care to treat conditions that were not emergent or urgent in nature" [Phillips Aff, NYSCEF Docket No. 76, ¶65].
Plaintiffs expert failed to raise a triable issue of fact in opposition to this showing. Dr. Reyes had no duty to review the September 6th MR1 and, therefore, had no obligation to render treatment based upon those MRI findings. Because Dr. Eisenberger's opinion in opposition is premised upon the September 6lh MRI findings - of which Dr. Reyes was unaware - the opinion lacks foundation in the record and is therefore insufficient to raise a triable issue of fact warranting denial of the motion for summary judgment [Schwartz, 179 A.D.3d at 965; Wagner, 172 A.D.3d at 955 ("The expert affidavit proffered by the plaintiff relied, upon facts that were not supported by the record and, thus, was speculative and conclusory and insufficient to defeat the defendants' motion for summary judgment"); Bartolacci-Meir v. Sassoon, 149 A.D.3d 567, 572 (2d Dept. 2017); Kerrins v. South Nassau Communities Hosp., 148 A.D.3d 795, 796 (2d Dept. 2017)].
Finally, Dr. Reyes established his prima facie entitlement to judgment as a matter of law dismissing the claim that he failed to issue ongoing orders within two hours of Decedent's admission by submission of the VBH records and his deposition transcript. These records establish that Dr. Reyes issued various admitting orders, including an order for the administration of 6 mg of Decadron every six hours and an order for a radiation oncology consult following admission [.see VBH medical records, NYSCEF Docket No. 75; Reyes Dep Tr, NYSCEF Docket No. 68, pp 71-73, 75-80], Plaintiff failed to raise a triable issue of fact in opposition and failed to identify what orders (other than a bed rest order, as discussed supra) should have been issued by Dr. Reyes but were not.
Based upon the foregoing, Dr. Reyes' motion for summary' judgment dismissing the complaint insofar as asserted against him is granted.
II. Vassar Brothers Hospital (Sequence No. 2)
In her amended bill of particulars [see NYSCEF Docket No. 82], Plaintiff claims the following acts and/or omissions of defendant VBH constitute negligence: (1) failure to appropriately and properly assess Decedent's risk for falls and fractures; (2) failure to recognize that Decedent was admitted with severe back pain and weakness in her right, lower extremity; (3) failure to recognize her right leg pain while walking; (4) failure to recognize that Decedent's MRIs prior to her fall indicated an expansile lesion on her right rib, bony pelvis, right proximal femur, and extensive involvement in her spine, greatest at T5, with almost every level of her spine involved; (5) failure to treat the mass on Decedent's right iliac crest; and (6) failing to take appropriate preventive measures to prevent falls and fractures. Plaintiff also claimed that VBH did not: adhere to the Activities of Daily Living Care Plan; provide a one or two-person assist for toileting; and have a radiologist communicate the findings of the September 6, 2016 MR1 of the pelvis to defendant Dr. Reyes and/or the Emergency Department attending physician.
VBH established its prima facie entitlement to judgment as a matter of law through the submission of, inter alia, an affirmation from Bruce A. Seideman, M.D., an expert in the field of orthopedic surgery, and Decedent's medical records from VBH. Dr. Seideman is licensed to practice medicine in New York and is board certified in orthopedic surgery. He is fully familiar with the standard of care within the field of orthopedic surgery' and with the causes and management of orthopedic injuries, including pathologic fractures [.see Seideman Aff, NYSCEF Docket No. 118, ¶3]. After reviewing the pleadings, medical records from VB11. MR1 films and reports, and deposition transcripts. Dr. Seideman opined to a reasonable degree of medical certainty that nothing the employees of VB11 did or did not do was a proximate cause of any injury' suffered by Decedent but, rather, the fracture at issue was caused solely by Decedent's underlying multiple myeloma [id. at ¶¶4-5]. Dr. Seideman's opinion "had a factual foundation in the record, and adequately addressed the allegations of the plaintiff s bill of particulars" [McGuigan, 94 A.D.3d at 956; Chance, 33 A.D.3d at 646].
Dr. Seideman noted, based upon his review of the pertinent medical records and diagnostic films, that at time of the fracture, Decedent had significant metastatic spread of multiple myeloma. He opined to a reasonable degree of medical certainty, based upon his experience and his review of diagnostic imaging studies and the operative report of the orthopedic surgeon who performed the open reduction and internal fixation, that it was the underlying myeloma that caused the destruction of her femur, which caused Decedent to suffer the fracture at issue Seideman Aff, NYSCEF Docket No. 118, ¶¶26-27]. 1c stated that he had encountered similar situations whereby an underlying cancer destroyed a bone resulting in significant damage to the bone, leading to a pathologic fracture [id. at ¶25]. Thus, Dr. Seideman concluded that the fracture was not caused by any act or omission of Nurse Becker or any other member of the VBH nursing staff but was caused solely by the destruction of the bone by Decedent's underlying multiple myeloma [id. at ¶29]. Dr. Seideman further opined that Decedent would have required surgical fixation of her femur regardless of whether she suffered a fracture. The degree of bony destruction of the femur would have necessitated a prophylactic nailing to prevent a future fracture [id. at ¶28], Finally, VBH established, prima facie, that it was not vicariously liable for any acts or omissions of Dr. Reyes or radiologist Philip Amatulle, M.D., as they were private physicians not employed by VBII who were treating a private patient at the hospital [Hills v. St. Clare's Hosp., 67 N.Y.2d 72 (1986); Giambona v. Hines, 104 A.D.3d 807 (2d Dept. 2013)].
In opposition, Plaintiff failed to raise a triable issue of fact. Plaintiff did not oppose VBH's motion as it pertained to claims for any care and treatment rendered by doctors Reyes and Amatulle. Accordingly, VBH's motion for summary' judgment is granted as to those claimed departures.
Plaintiffs opposition only addressed the portion of VBH's motion regarding the care and treatment rendered by Nurse Becker and the VBH nursing staff. However, Plaintiffs opposition failed to raise a triable issue of fact in opposition to the prima facie showing that any alleged departure by VBI I did not cause any injury suffered by Decedent. Plaintiff submitted an affirmation from her expert hematologist/oncologist. Dr. Eisenberger. Dr. Eisenberger did not contest Dr. Seideman's opinion that Decedent would have required surgical fixation of her femur. Rather, he opined that Decedent should have undergone the surgery prior to the fracture occurring [Eisenberger Aff., NYSCEF Docket No. 137, ¶¶ 10-11]. However, Dr. Eisenberger's affirmation did not state whether he had any specific training or expertise in orthopedics or orthopedic surgery, or particularized knowledge as to the care and treatment of pathologic fractures or the performance of surgical fixation of same. Moreover, the affirmation did not indicate that Dr. Eisenberger had familiarized himself with the relevant literature or otherwise set forth how he was, or became, familiar with the applicable standards of care. Thus, because Dr. Eisenberger opined outside his area of specialization and did not lay a foundation tending to suggest the reliability of his opinion, his affirmation is of no probative value and is insufficient to defeat VBH's prima facie showing [See Shectman v. Wilson, 68 A.D.3d 848. 850 (2d Dept. 2009); see also Samer v. Desai, 179 A.D.3d 860 (2d Dept. 2020)]. Accordingly, because Plaintiff has failed to raise a triable issue of fact on the issue of causation, VBH's motion for summary judgment dismissing the complaint insofar as asserted against it is granted.
Plaintiff also submitted an affidavit from an expert in the nursing field, Rebecca McCarthy, but she expressed no opinion relevant to the issue of lack of causation.
III. Dr. Kubert (Sequence No. 3)
In her amended bill of particulars [.see NYSCEF Docket No. 101 ], Plaintiff claims the following acts and/or omissions of defendant Jason E. Kubert, M.D. constitute malpractice: (1) failure to follow the policy of VBH that the ER physician needs to prepare an ongoing order within two (2) hours of arrival to the unit; (2) failure to issue an order or address the need for toileting to be done at bedside with a one or two person assist; (3) failure to properly assess the decedent's risk for falls or fractures; and failed to take the proper preventative measures to prevent falls or fractures; (4) failure to review' MRIs of the spine and pelvis; (5) failure to appreciate the findings of the MRI of the spine and pelvis; and (6) failure to issue a "bed rest" and/or non-weight bearing order.
Dr. Mendoza's affirmation also failed to specifically address Dr. Kubert's assertion that it was Dr. Reyes who was responsible for issuing a bed rest order in the event such an order was warranted. In any event, Dr. Mendoza failed to raise a triable issue of fact in opposition to Dr. Kubert's prima facie showing that the failure to issue a bed rest order was not a departure from good and accepted practice. Dr. Mendoza's opinion that a bed rest order was required relied in part on the findings from the September 6th MRI of the pelvis. It is undisputed that Dr. Kubert was not aware of that MRI at the time of his evaluation of Decedent. Dr. Mendoza's statement that the MRI was available for review is speculation and not based facts in the record. For the reasons discussed in the section of this decision and order pertaining to Dr. Reyes' motion, supra, Dr. Kubert had no duty to review the September 6lhMRI, of which he was not aware, prior to evaluating and treating Decedent [Matthis, supra; Leigh, supra]. Dr. Kubert, as the emergency department attending physician, was limited to rendering care for the condition for which Decedent presented to the hospital: the cord compression at T5. Dr. Mendoza's opinion, to the extent it relies upon the September 6th MRI, lacks evidentiary support and, accordingly, is insufficient to raise a triable issue of fact [Schwartz, 179 A.D.3d at 965; Wagner, 172 A.D.3d at 955; Kerrins, 148 A.D.3d at 796], Dr. Mendoza's conclusion that Decedent's legs were severely compromised is contradicted by facts in the record, notably the results of Dr. Kubert's physical examination, the two MORSE Fall Risk assessments, and the fact that Decedent walked from the parking lot into VBH without assistance. Based upon the foregoing, the affirmation of Dr. Mendoza is conclusory, speculative, and contradicted by facts in the record. It is therefore insufficient to raise a triable issue of fact [Schwartz, 179 A.D.3d at 965; Wagner, 172 A.D.3d at 955; Bartolacci-Meir, 149 A.D.3d at 5721.
Finally, Dr. Mendoza opined that Dr. Kubert should have ordered an orthopedic consult and an immediate x-ray of Decedent's leg. However, this is a different theory of liability than those pleaded by Plaintiffs her amended bill of particulars. As such, Dr. Mendoza's opinion in this regard is insufficient to raise an issue of fact because it improperly raised a new theory of liability for the first time in opposition to the motion for summary judgment [Anonymous v. Gleason, 175 A.D.3d 614, 617 (2d Dept. 2019); Marti v. Rana, 173 A.D.3d 576 (1st Dept. 2019), Iv app denied 34 N.Y.3d 906 (2019)].
Based upon the foregoing, it is hereby
ORDERED that the motion for summary judgment filed by defendants Hudson Valley Hematology Oncology Associates RLLP, d/b/a Hudson Valley Cancer Center and Julia Schaefer-Cutillo, M.D. [Motion Sequence No. 1], is granted in part and denied in part; and it is further
ORDERED that the motion for summary judgment filed by defendant Ponciano L. Reyes, Jr., M.D. [Motion Sequence No. 1], is granted and the amended complaint insofar as asserted against him is dismissed; and it is further
ORDERED that the motion for summary judgment filed by defendant Vassar Brothers Hospital [Motion Sequence No. 2] is granted and the amended complaint insofar as asserted against it is dismissed; and it is further
ORDERED that the motion for summary judgment filed by defendant Jason E. Kubert, M.D. [Motion Sequence No. 3] is granted and the amended complaint insofar as asserted against him is dismissed; and it is further
ORDERED that counsel for Plaintiff and for defendants Elant at Fishkill, Inc., Hudson Valley Hematology Oncology Associates RLLP, and Julia Schaefer-Cutillo, M.D., shall appear in this Court for a virtual conference on April 8, 2021 at 9:15 a.m.
The foregoing constitutes the Decision and Order of the Court.