Opinion
21758/2007.
Decided March 30, 2011.
Kelner Kelner, Esqs., New York, New York, Attorney for Plaintiff.
Kaufman, Borgeest Ryan, LLP, Garden City, New York, Attorney for Defendants University Associates in Obstetrics Gynecology, P.C. University Associates in Obstetrics Gynecology, University Faculty Practice Corporation, Sara Petruska, M.D.
State of New York Office of the Attorney General, New York, NY, Attorney for Stony Brook University Medical Center.
Fumuso, Kelly, DeVerna, Snyder, Swart Farrell, LLP, Hauppauge, NY, Attorney for Defendants Brookhaven Memorial Hospital and Alan T. Nemeth, M.D.
Upon the following papers numbered 1 to 54 read upon this motion and cross motion for summary judgment and to preclude the plaintiff: Notice of Motion and supporting papers (001), 1 — 11; Notice of cross motion and supporting papers (002), 12 — 16; (003) 17 — 19; (004) 20 — 34; Answering Affidavits and supporting papers, 35 — 47; Replying Affidavits and supporting papers, 48 — 49; 50 — 54.
The complaint of this action sets forth causes of action for medical malpractice and lack of informed consent. It is claimed in the plaintiff's verified bill of particulars that the defendants Sara Petruska, M.D. (Dr. Petruska), University Associates in Obstetrics Gynecology (University Associates), Brookhaven Memorial Hospital Medical Center (BMHMC) and Alan I. Nemeth, M.D. (Dr. Nemeth) were negligent and otherwise departed from the accepted standards in rendering care and treatment to the plaintiff. On or about January 31, 2005 through April 2005, the plaintiff came under the care and treatment of Sara Petruska, M.D. and University Associates for a tubal ligation and, during the course of the procedure, the plaintiff allegedly sustained a perforation of her bowel. It is further claimed that Sara Petruska, M.D. and University Associates failed to diagnose such perforation intra-operatively and post-operatively; failed to timely and appropriately diagnose and treat the plaintiff's condition; failed to repair the perforation in a timely manner; failed to obtain a proper informed consent; and failed to obtain proper and appropriate consultations and caused the plaintiff to sustain permanent bowel dysfunction. It is claimed that the plaintiff came under the care and treatment of the defendants Dr. Nemeth and BMHMC on January 31, 2005 through February 1, 2005 and that they failed to properly diagnose and treat the plaintiff's condition; failed to call appropriate consultations; failed to heed the plaintiff's relevant history of a laparoscopic procedure; failed to admit the plaintiff to the hospital to diagnose and treat her condition; and discharged the plaintiff without a proper diagnosis having been made, proper testing having been done and proper treatment being provided to her.
In cross motions (002) and (003), University Associates in Obstetrics Gynecology, P.C., University Associates, University Faculty Practice Corporation, Sara Petruska, M.D., Brookhaven Memorial Hospital Medical Center and Alan I. Nemeth, M.D., seek an order pursuant to CPLR § 3121(b), 22 NYCRR 202.17 and 202.21(e) vacating the note of issue and striking this action from the trial calendar and precluding the plaintiff from offering any testimony in this action for the failure to serve medical reports.
22 NYCRR § 202.21(e), in pertinent part, provides that within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to vacate the note of issue, upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect, or that the certificate of readiness fails to comply with the requirements of this section in some material respect. New York Courts have repeatedly held that a note of issue should be vacated when it is based upon a certificate of readiness that contains erroneous facts, including an incorrect statement that all discovery proceedings have been completed or waived ( see, Ortiz v. Arias, 285 AD2d 390 [1st Dept., 2001]).
Cross motion (002) was served August 3, 2010 and cross motion (003) was served August 16, 2010. CPLR § 2103(2) adds an additional five days to serve this motion if the note of issue was served by regular first class mail. The moving parties have not provided this Court with a copy of the note of issue and certificate of readiness which they seek to vacate. This Court cannot determine when service of the note of issue and certificate of readiness were made and whether the moving parties filed their respective motions within 20 days of service of the same. Therefore, it cannot be determined whether the within motions were timely made ( see, Audiovox Corporation v. Benyamini, 265 AD2d 135 [2nd Dept., 2000]; Jenny Oil Corp. v. Petro Prods. Distribs., 121 AD2d 687 [2nd Dept., 1986]).
The moving parties claim that they served demands upon the plaintiff for the exchange of medical reports, but they have not submitted copies of the demands for this Court to review as well, nor have they provided a copy of a preliminary conference order providing for the same. The moving parties do not set forth the names of the providers from whom they seek reports. They have not established that there were providers other than the defendants who treated the plaintiff and from whom they seek reports. Further, on June 2, 2010, counsel for all parties signed the Compliance Conference Order with the certification that all discovery is complete and further certified the readiness of this matter for trial. It was agreed that the note of issue be served by July 14, 2010. It is determined that there was ample time for the moving defendants to serve demands for copies of the medical reports they now seek prior to the filing of the note of issue and certificate of readiness, or to move to compel disclosure.
"All parties and their counsel have an obligation to make good faith efforts to fulfill their discovery and disclosure obligations and to resolve all discovery and disclosure disputes before seeking judicial intervention. Dilatory tactics, evasive conduct, and/or a pattern of non-compliance with discovery and disclosure obligations may give rise to an inference of willful and contumacious conduct, and may result in severe adverse consequences and sanctions" ( Miller v. City of New York, 15 Misc 3d 1127A, 841 NYS2d 219 [Sup. Ct. New York, Bronx County, 2007]). The moving parties have not established that the plaintiff engaged in dilatory tactics, evasive conduct, or a pattern of non-compliance in providing discovery. As set forth in Maio v. Vero, 2010 NY Slip Op 33173U [Sup. Ct. Suffolk County], a lack of diligence in seeking discovery does not warrant post-note of issue disclosure. Rather, the moving defendants have not been diligent in demanding the discovery they now seek or in supporting this motion.
The moving parties have failed to provide this Court with a copy of the preliminary conference order, the demands for the reports they claim to have served, or a copy of the note of issue and certificate of readiness which they seek to vacate. Likewise, they have failed to move to compel discovery prior to the filing of the note of issue and certificate of readiness. Accordingly, it is determined that the moving defendants have failed to establish their entitlement to an order vacating the note of issue and precluding the plaintiff from testifying at trial.
In motion (001), University Associates in Obstetrics Gynecology, P.C., University Associates in Obstetrics Gynecology, University Faculty Practice Corporation, and Sara Petruska, M.D. seek summary judgment dismissing the complaint asserted against them on the asserted basis that they did not depart from the accepted standards in the care and treatment of the plaintiff.
In cross motion (004), Brookhaven Memorial Hospital Medical Center and Dr. Alan Nemeth seek summary judgment dismissing the complaint on the basis they bear no liability in this action.
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 eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( see, Sillman v. Twentieth Century-Fox Film Corporation, 3 NY2d 395). The movant has the initial burden of proving entitlement to summary judgment ( see, Winegrad v. N.Y.U. Medical Center, 64 NY2d 851; Alvarez v. Prospect Hosp., 68 NY2d 320). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( see, Winegrad v. N.Y.U. Medical Center, 64 NY2d 851). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" (CPLR § 3212[b]; see, Zuckerman v. City of New York, 49 NY2d 557). The opposing party must present facts sufficient to require a trial of any issue of fact by producing evidentiary proof in admissible form ( see, Joseph P. Day Realty Corp. v. Aeroxon Prods., 148 AD2d 499 [2nd Dept., 1989]), and must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( see, Castro v. Liberty Bus Co., 79 AD2d 1014 [2nd Dept., 1981]. Summary judgment shall only be granted when there are no issues of material fact and the evidence requires the Court to direct a judgment in favor of the movant as a matter of law ( see, Friends of Animals v. Associated Fur Mfrs., 46 NY2d 1065).
The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage ( see, Holton v. Sprain Brook Manor Nursing Home, 253 AD2d 852 [2nd Dept., 1998], app denied 92 NY2d 818). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury ( see, Derdiarian v. Felix Contr. Corp., 51 NY2d 308; Prete v. Rafla-Demetrious, 224 AD2d 674 [2nd Dept., 1996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury, ( see, Fiore v. Galang, 64 NY2d 999; Lyons v. McCauley, 252 AD2d 516 [2nd Dept., 1998], app denied 92 NY2d 814; Bloom v. City of New York, 202 AD2d 465 [2nd Dept., 1994]).
To rebut a prima facie showing of entitlement to an order granting summary judgment by defendants, plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendants' acts or omissions were a competent producing cause of the injuries of the plaintiff ( see, Lifshitz v. Beth Israel Med. Ctr-Kings Highway Div. , 7 AD3d 759 [2nd Dept., 2004]; Domaradzki v. Glen Cove OB/GYN Assocs., 242 AD2d 282 [2nd Dept., 1997]).
In support of motion (001), movants University Associates in Obstetrics Gynecology, P.C., University Associates in Obstetrics Gynecology, University Faculty Practice Corporation, and Sara Petruska, M.D. have submitted, inter alia, an attorney's affirmation; the affidavit of Sara Petruska, M.D., copies of the summons and complaint, their answer, and discovery demands served on behalf of Sara Petruska, M.D. and University Associates in Obstetrics Gynecology, P.C.; a copy of the plaintiff's verified bill of particulars; and uncertified copies of the plaintiff's medical records which are not in admissible form pursuant to CPLR § 3212 and are therefore not considered.
An expert's opinion must be based on facts in evidence ( see, Hunting Ridge Motor Sports v. County of Westchester, 2011 NY Slip Op 189 [Sup. Ct. App. Div. 2nd Dept]). Dr. Petruska and University Associates in Obstetrics Gynecology, P.C. have not provided complete or certified copies of the plaintiff's medical records upon which Dr. Petruska bases her opinions concerning the care and treatment she rendered to the plaintiff; and neither are those medical records in admissible form. Rather than submit an expert affirmation from another physician, Dr. Petruska submits her own affidavit in support of her motion. Having considered Dr. Petruska's affidavit, it is determined that she has failed to demonstrate entitlement to summary judgment dismissing the complaint as there are factual issues left unaddressed in her affidavit. It is further determined that the plaintiff has raised factual issues in the opposing papers to preclude summary judgment.
Dr. Petruska set forth in her affidavit that she was an employee of University Associates in Obstetrics Gynecology, P.C. in 2004, is licensed to practice medicine in the State of New York since 1986 and is board certified in obstetrics and gynecology. However, she continues that she received her medical degree from the University of Florida, College of Medicine in 2000 and completed her residency in obstetrics and gynecology in 2004. Therefore, there is a discrepancy between the date of 1986 which she states she became licensed to practice medicine in the State of New York, and 2000, the date she states she received her medical degree.
Dr. Petruska states she first saw Lynn Garrett, described as an obese woman, on November 16, 2004 at her office at which time the plaintiff stated she was having prolonged, excessive uterine bleeding which began about four months prior. Upon examination, her initial impression was that the IUD placement had caused heavy bleeding. She stated that she doubted Ms. Garrett had infection, although it was her differential diagnosis. She states she offered the plaintiff the available options and on November 30, 2004, the plaintiff advised her that she wished to have a tubal ligation. Dr. Petruska continues that she advised Ms. Garrett of the risks of an ectopic pregnancy after a tubal ligation and that she understood "the risks of damage to the bowel, bladder, ovaries, ureters, vessels," and that Ms. Garrett signed the consent for the tubal ligation procedure at the Ambulatory Care Center.
Dr. Petruska continues that on January 10, 2005, Ms. Garrett presented to the emergency room at Brookhaven Memorial Hospital as she was experiencing pain in her right side. A CT scan revealed a cyst on the right ovary. She saw Ms. Garrett on January 13, 2005, and did not schedule an ultrasound to further evaluate the ovarian cyst suspected on the CT scan as she states she planned to evaluate that ovary during the planned laparoscopic bilateral tubal ligation then performed on January 13, 2005. Dr. Petruska states that she performed the surgery, assisted by the resident at Stony Brook University Hospital, Dr. Van den Heuvel. She stated that an intraumbilical incision was made with the scalpel, and the peritoneal cavity was inflated with carbon dioxide gas to elevate the anterior abdominal wall above the bowel and pelvic organs. This was done, she stated, by inserting a Veress needle, described as a blunt-tipped metal cannula, through the skin incision, and as soon as the peritoneum was penetrated, the blunt shaft was propelled forward by the spring loaded mechanism beyond the sharp tip. The vibrations or "pops" are counted as the Veress needle passes through the fascial layer and through the peritoneum, and then it is confirmed that the tip of the needle is in the peritoneal cavity by applying a droplet of water to the external end of the Veress needle and observing it run through into the peritoneal cavity.
Dr. Petruska testified that the Veress needle has two working parts: an outer needle with a sharp beveled edge; and an inner, spring loaded, retractable blunt shaft that extends beyond the end of the needle point.
Dr. Petruska continued that Dr. Van den Huevel advanced the Veress needle until she felt two "pops" suggesting appropriate placement of the tip, but the droplet test indicated that the Veress needle was not in the correct position, so Dr. van den Heuvel then removed the Veress needle and against attempted placement at a slightly steeper angle, under her supervision. Again, the droplet test did not indicate proper placement, so the Veress needle was removed. Dr. Petruska avers that she herself took the Veress needle and advanced it through the skin incision until she thought she had proper placement, and this time the droplet did run in; however, when the carbon dioxide was connected, the opening pressure was too high to confirm intraperitoneal placement of the Veress needle. In view thereof, she states she, therefore, converted the procedure to an "open laparatomy" wherein a skin incision is made and the layers of the abdominal wall are dissected under direct visualization until the peritoneum is identified, at which time a sleeve called a trocar was utilized through the incision into the peritoneal cavity. She avers that the trocar was held correctly to prevent the sharp trocar tip from thrusting too deeply and described the angles in which it was inserted. She further avers that it was then rotated in a semicircular fashion with its long axis controlled, and firm, downward pressure was applied. After the carbon dioxide gas was connected and pneumoperitoneum was attained, she noted that there were gas bubbles in the preperitoneal space, showing that on her attempt with the Veress needle when the gas was connected, the tip of the needle was in the fatty layer of the anterior abdominal wall.
After surveying the pelvic and abdominal anatomy, a second incision was made 2cm above the symphysis pubis, and a 5 mm trocar and sleeve were inserted into the abdomen under direct laparoscopic visualization without complication, states Dr. Petruska. Thereafter, three consecutive applications of the instrument were made to cauterize a 3 cm segment of the tube on the left side, and the procedure was repeated on the right side. Closure of the wound was thereafter effectuated and anesthesia was discontinued. During recovery, however, Ms. Garrett's oxygen saturation level became low and she required suctioning. Thereafter, upon recovery, Ms. Garrett was discharged.
At about 8:38 p.m., Ms. Garrett reached the answering service complaining of a pulling, spasm sensation in her abdomen. Dr. Petruska states Dr. Lochner, who was the doctor on call, spoke to Ms. Garrett and, inter alia, advised her to take two Vicodin and 800 mg. of Motrin. At 12:10 a.m., on February 1, 2005, Ms. Garret's boyfriend called Dr. Lochner again, advising that Ms. Garrett's pain was much worse. He was told by Dr. Lochner to take her to the emergency room at Stony Brook Hospital, however, Ms. Garrett went to Brookhaven Memorial Hospital Medical Center (BMHMC) where she was seen by Dr. Ehlers. Dr. Petruska continues that Dr. Ehlers called her, advising her that the CT scan conducted there demonstrated free intra-abdominal air, which she stated is not an unexpected finding one day after laparoscopy. She continued that, otherwise, Ms. Garrett's evaluation was normal; however, she does not set forth the nature of the evaluation. Ms. Garrett was discharged to her home from BMHMC, but later that day presented to the Stony Brook Hospital emergency department with shortness of breath and worsening abdominal pain. Dr. Petruska states she was unavailable to see Ms. Garrett as she was seeing patients elsewhere, and that the attending physician in the emergency department planned on obtaining another CT scan and a surgical consultation due to the possibility of a bowel injury. She states that the surgery team did not feel that Ms. Garrett's presentation was suspicious for a bowel injury; however, Ms. Garrett's respiratory status declined and she required intubation. She states Ms. Garrett's lactic acid level was elevated, indicating sepsis. Dr. Petruska arrived at the emergency department and discussed the CT, which she states the emergency department attending physician felt was not suspicious for a bowel injury or other intra-abdominal process. She stated she felt it showed evidence of an aspiration pneumonia. Ms. Garrett was admitted to the medical intensive care unit.
Dr. Petruska states she was unable to rule out a bowel injury as the cause of her sepsis at that time as an operative evaluation is required to do so. She states that taking Ms. Garrett to surgery posed an unjustifiable risk in her critically ill state in light of the surgical consult's opinion. Dr. Petruska states that her plan to closely observe Ms. Garrett rather than to take her to surgery was the proper exercise of medical judgment, so she started her on fluids, antibiotics and continued ventilatory support. After consulting with several other physicians, Paul Richmond, M.D. the MICU attending; Martyn Burk, M.D., the attending surgeon on call; and Dr. Moore, the on call radiologist, she claims that she doubted that Ms. Garrett needed to be taken to the operating room; however, Ms. Garrett's lactic acid levels continued to elevate despite treatment, suggesting that aspiration pneumonia may not have been the correct diagnosis. Thereafter, interval CT scans of the chest, abdomen and pelvis were obtained. Ms. Garrett failed to show any improvement, so an exploratory laparotomy or a laparoscopy were considered wherein the bowel could be "run" to evaluate it for injury. Therefore, Dr. Petruska states she started to perform a laparoscopy, but upon encountering a large amount of free fluid with fibrinous debris in the peritoneal cavity, the procedure was converted to an exploratory laparotomy wherein a 3 mm defect, which appeared to be consistent with a puncture, was noted in the small bowel and was repaired with a stapler.
In conclusion, Dr. Petruska avers that the puncture in the small bowel was likely caused by the insertion of the Veress needle, by nature, a blind procedure, and was not due to any departure from accepted medical practice on either her part or on the part of Dr. Van den Heuvel. In retrospect, she thinks, possibly the bowel had been adhered to the abdominal wall, such that the entrance of the Veress needle into the peritoneal cavity both punctured the bowel and freed it from the anterior abdominal wall. Dr. Petruska opines that: she obtained proper informed consent and Ms. Garrett was apprised during conversation and that, upon presenting the consent forms to her, bowel perforation was a possible complication; the puncture was a complication and not a departure as the procedure was done in accordance with accepted medical practice; that accepted practice is to examine the tissue underlying the point of insertion of the Veress needle and trocar when the laparoscope is first inserted into the peritoneal cavity, and this precaution was taken, no trauma was noted. She further stated that it is not the standard of care for a gynecologist to run the bowel laparoscopically, which is what would have been necessary to locate the injury; there was no basis not to discharge Ms. Garrett after the first procedure; eventually, the second laparoscopy was performed and the perforation of the bowel was diagnosed and repaired; she did not fail to heed Ms. Garrett's complaints; there were no diagnostic tests required after the procedure prior to discharge after the first procedure; and she called the proper consults and spoke with the consultants to obtain their input.
In opposition, the plaintiff has submitted the affirmation of her expert, who affirms to being licensed to practice medicine and board certified in obstetrics and gynecology. The expert sets forth the materials reviewed and renders opinions based upon a reasonable degree of medical certainty. It is the plaintiff's expert's opinion that Dr. Petruska departed from good and accepted standards in rendering treatment to Ms. Garrett, causing and substantially contributing to the injuries she sustained relating to the laparoscopy performed on January 21, 2005. The plaintiff's expert states that Dr. Petruska concedes, and the records reflect, that a small bowel injury occurred during one of the multiple failed attempts at properly placing the Veress needle to achieve pneumoperitoneum. The plaintiff's expert adds that the insertion of the Veress needle is a blind procedure which poses serious risk to the life of patients and that the creation of the pneumoperitoneum is the first and most critical step of a laparoscopic procedure because of the significant risk of vascular and bowel injury which can lead to peritonitis, septicemia and death.
The plaintiff's expert sets forth that Dr. Petruska permitted a relatively inexperienced intern, Dr. Van der Huevel, to insert the Veress needle unsuccessfully at least twice before Dr. Petruska did so herself also unsuccessfully, before changing the procedure to an open laparoscopic procedure. The plaintiff's expert opines that while Veress needle bowel injury is a risk of the procedure, the risk is increased when the practitioner attempts to enter the peritoneum at too vertical an angle causing the needle to enter too deeply into the body which is an improper technique. To appropriately place the needle, the plaintiff's expert states, the practitioner must have the anterior abdominal wall elevated, and that inadequate elevations will hasten the risk of injury. The plaintiff's expert opines that with each attempt to insert the Veress needle, the angle of entry was made steeper by moving toward the vertical, increasing the risk of injury. The plaintiff's expert further opines that injury is rare absent improper surgical technique or when adhesions are present, which were not seen in this case. Thus, the plaintiff's expert states that the bowel injury caused by the Veress needle was, more likely than not, the product of a deviation from good and accepted medical practice. The plaintiff's expert also opines that Dr. Petruska further breached proper standards of care by not properly examining the bowel with the laparoscope and locating the injury during the surgical procedure itself and, had she done this, the repair could have and would have been done before any of the serious injuries occurred. The plaintiff's expert asserts that there is no basis for the argument proffered by Dr. Petruska that the only methodology for locating the injury would be to run the bowel, as it should have been properly examined with the laparoscope.
The plaintiff's expert further states that Dr. Petruska deviated from good and accepted medical practice post-operatively in not having in place a system whereby the patient was informed as to how to contact her directly if complications were to arise. The plaintiff's expert continues that this is especially true under circumstances where a surgeon knows that there were numerous failed attempts at Veress needle insertion with a concomitant increase in the risk of injury. Dr. Lochner, the resident responsible for advising the plaintiff when she called complaining about abdominal pain, was apparently unaware of the nature of the procedure and failed to recognize that the patient's abdominal pain was increasing. The plaintiff's expert states that Dr. Petruska testified that she advised all who would listen that there were no complications in performing the surgery, including Dr. Ehlers at Brookhaven Memorial Hospital, and the surgical consultants. Since Dr. Petruska was forced to change the operative plan during the procedure, predicated upon the inability to insert the Veress needle and obtain proper pneumoperitoneum, Dr. Petruska was obligated to advise Dr. Lochner, the emergency room physicians, and the later surgical consultants of this fact.
The plaintiff's expert further sets forth that Dr. Petruska departed from accepted standards of care and treatment in not directing the emergency room physician at Brookhaven Memorial Hospital, Dr. Ehlers, as to the care and treatment of the patient. The plaintiff's experts further states that Dr. Petruska delayed in diagnosing the perforated bowel despite the fact that there was an elevated white blood cell count and free air in the abdomen which showed up on the CT scan at Brookhaven Memorial Hospital, which finding the radiologist warned could be evidence of a perforated bowel. According to plaintiff's expert, Dr. Petruska ignored these findings. Additionally, opines the plaintiff's expert, the patient's abdominal pain was increasing and there were elevated lactate levels, a finding more common in the presence of a catastrophic abdominal event than in acute aspiration pneumonia. There were also findings of tachycardia, tachypnea, hypoactive bowel sounds, and diffuse abdominal tenderness, states the plaintiff's expert, which were not considered by Dr. Petruska. The plaintiff's expert concludes that the delay in treating and testing for a perforated bowel due to the diagnosis of aspiration pneumonia constituted a deviation from good and accepted medical practice. The plaintiff's expert also concludes that the delays in diagnosing and treating, and the delay in surgical exploration, resulted in the delay in making the diagnosis of bowel perforation, thus causing an increased contamination of the peritoneum, development of purulent exudate, sepsis, metabolic acidosis, hemodynamic instability, respiratory compromise, and caused the patient to be at an increased risk for abdominal adhesions, future hernia formation and recurrent intestinal obstruction, conditions for which she has since been hospitalized on two occasions.
As set forth in Feinberg v. Feit , 23 AD3d 517 , 519 [2nd Dept., 2005], "[s]ummary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury." Here, the opinions set forth by Dr. Petruska on her own behalf, and those opinions set forth by the plaintiff's expert relative to the care and treatment provided to the plaintiff by Dr. Petruska, are conflicting and, thus preclude summary judgment.
In support of cross motion (004), Brookhaven Memorial Hospital Medical Center and Dr. Alan Nemeth have submitted, inter alia, an attorney's affirmation; the expert affidavit of Anthony C. Mustallish, M.D.; the affidavit of Sara Petruska, M.D.; copies of the summons and complaint, their answers and various discovery demands and the plaintiff's verified bill of particulars; copies of plaintiff's medical records; unsigned copies of the transcripts of the examinations before trial of Lynn Garrett dated June 17, 2008, Sara Petruska, MD. dated May 22, 2009, and Robert Ehlers, M.D. dated November 18, 2009. The unsigned transcript of the examinations before trial are not in admissible form pursuant to CPLR 3212 nor are they accompanied by affidavits pursuant to CPLR § 3116, and are, therefore, not considered in this motion ( see, Martinez v. 123-16 Liberty Ave. Realty Corp. , 47 AD3d 901[2nd Dept., 2008]; McDonald v. Mauss , 38 AD3d 727 [2nd Dept., 2007]; Pina v. Flik Intl. Corp. , 25 AD3d 772 [2nd Dept., 2006]).
Dr. Anthony C. Mustallish states that he is a physician licensed to practice medicine in the State of New York and is a Fellow with the American College of Emergency Physicians, but does not set forth that he is board certified in any area of medicine. He delineates the materials he reviewed as a basis for his opinions which he asserts with a reasonable degree of medical certainty. He states that he reviewed the care and treatment received by the plaintiff prior to her presentation to Brookhaven Memorial Hospital Center where she was seen and treated by Dr. Nemeth. Dr. Mustallish states that Ms. O'Connell presented to BMHMC on February 1, 2005 at about 00:36 hours with subjective complaints of abdominal pain for six hours following a bilateral tubal ligation one hour prior to the onset of her pain. In addition, she stated she was unable to urinate and felt very uncomfortable. Dr. Nemeth conducted a physical examination at about 1:10 a.m., and noted her pain to be 9 out of 10. Dr. Mustallish states Dr. Nemeth found her abdomen to be soft, with tenderness and guarding and with decreased bowel sounds, which Dr. Mustallish states is consistent with a patient who underwent recent surgery.
Dr. Mustallish sets forth the various blood tests, urinalysis and radiology tests which were ordered by Dr. Nemeth. He states the white blood cell count was elevated to 21.3 and documented, and later repeated. Dilaudid and Phenergan for pain was given throughout the night. Intravenous fluids were given. The CT scan filming was delayed as she was initially unable to stay still. Free air was noted on the flat and upright of the abdomen x-ray. The chest x-ray revealed plate like atelectasis in the right lower lobe, and some lucency in the right cardiophrenic angle, which Dr. Mustallish states corresponds to the free intraperitoneal air seen on the CT scan. Dr. Nemeth finished his shift in the emergency department and was replaced by Dr. Ehlers whom, he states, spoke with Dr. Petruska by phone. She advised him that the tubal ligation was done without complication. The option of transferring Ms. Garrett to Stony Brook University Hospital was discussed and Dr. Petruska agreed to see her in two days as she requested to go home. Dr. Mustallish characterized Ms. Garrett as having "improved" just prior to discharge. She was discharged home with a prescription for an antibiotic in the event she had a respiratory pneumonia or lung involvement. Dr. Mustallish indicates that when the plaintiff presented to Stony Brook University Hospital emergency department, she had a fever of 103.3 as well as shortness of breath and continued pain after her discharge from BMHMC. At Stony Brook, the consulting physicians did not feel her presentation was suspicious for bowel injury. Due to further respiratory distress, however, she was intubated. A repeat CT scan was conducted.
Dr. Mustallish opines that the care and treatment rendered to Lynn Garret in the emergency department at Brookhaven Memorial Hospital at all times conformed to accepted standards of treatment and there was nothing that any of the nurses and/or physicians, including Drs. Nemeth and Ehlers, did or did not do that caused or contributed to the injuries complained of. He states appropriate diagnostic testing was conducted, appropriate history was taken and a physical examination was conducted, the CT scan was interpreted by a qualified radiologist, and Dr. Petruska was contacted, at which time Ms. Garret's condition and test results were discussed. Ms. Garret was given the option of a transfer to Stony Brook or discharge. Dr. Mustallish opines that calling a surgical consult while she was in the emergency department at BMHMC would not have, within a reasonable degree of medical certainty, expedited a diagnosis in this case. He states that when she was later admitted to Stony Brook, that at least two additional surgical evaluations rendered the opinion that her condition was not surgical. Dr. Mustallish additionally opines that there is nothing that Dr. Nemeth or Dr. Ehlers or the staff at BMHMC did that caused the bowel perforation and any delay in diagnosing the same was not attributable to them.
Here, the plaintiff's expert submits conflicting medical opinions. The plaintiff's expert opines that the physicians at BMHMC departed from the standards of care in failing to obtain a gynecologic and surgical consult for a patient who had undergone a surgical procedure earlier in the day and who was continuing to complain of severe abdominal pain, 10/10 on the pain scale, despite the administration of analgesic medications. The plaintiff's expert continues that the BMHMC defendants failed to obtain a complete history from Stony Brook before diagnosing the patient as suffering from a pulmonary problem and aspiration pneumonia; failed to obtain prior blood study results for comparison when she presented with an elevated white blood cell count; failed to call for a surgical consult when the radiologist apprised that the etiology of the free air and fluid on the CT scan includes bowel perforation; and failed to discuss the same with the surgeon. The plaintiff's expert states it was a departure from the standard of care wherein the radiology report for the CT scan at Brookhaven clearly makes reference to a "bowel perforation" in a differential diagnosis and suggests a correlation with surgical history, and despite the same, the physicians at BMHMC failed to properly rule out the suspected bowel perforation and obtain the proper consults. The expert further opines that it is a departure from the standard of care to fail to consider the finding of fluid in the abdomen after a laparoscopic procedure as this is not a normal finding and should raise the index of suspicion for a perforation, which finding is not addressed by the defendants' expert. The plaintiff's expert states that "abdominal pain" is a complaint and not a diagnosis and that the defendants did not confirm any real diagnosis to explain the abdominal pain. That the defendants are now stating that they were concerned with aspiration pneumonia and discharged the plaintiff on antibiotics is belied by the fact that the plaintiff was discharged as no practitioner would discharge a patient with suspected aspiration pneumonia. The plaintiff's expert continues that Dr. Ehlers' and Dr. Nemeth's delay in the proper diagnosis of bowel perforation with increased contamination of the peritoneum, development of purulent exudate, sepsis, metabolic acidosis, hemodynamic instability and respiratory compromise caused Ms. Garret to be at an increased risk for abdominal adhesions, future hernia formation and recurrent intestinal obstructions for which Ms. Garrett has been twice hospitalized since.
Based upon the foregoing, it is determined that the plaintiff has raised factual issues which preclude summary judgment and the conflicting medical experts' opinions raise credibility issues to be determined by the trier of fact ( see, Feinberg v. Feit , 23 AD3d 517 , 519 [2nd Dept., 2005]).
Therefore, it is ORDERED that motion (001) and cross motions (002), (003), and (004) are consolidated for the purpose of determination; and it is
ORDERED that this motion (001) by the defendants University Associates in Obstetrics Gynecology, P.C., University Associates in Obstetrics Gynecology, University Faculty Practice Corporation, and Sara Petruska, M.D. for an order pursuant to CPLR § 3212 granting summary judgment dismissing plaintiff's complaint is denied; and it is further
ORDERED that both cross motions (002) by the defendants University Associates in Obstetrics Gynecology, P.C., University Associates in Obstetrics Gynecology, University Faculty Practice Corporation, and Sara Petruska, M.D., and (003) by the defendants Brookhaven Memorial Hospital Medical Center and Alan I Nemeth, M.D., pursuant to CPLR § 3121(b), 22 NYCRR 202.17 and 202.21(e) for an order striking this action from the calendar and precluding the plaintiff from offering an testimony in this action for the failure to serve medical reports, are denied; and it is further
ORDERED that the motion (004) by the defendants Brookhaven Memorial Hospital Medical Center and Alan I. Nemeth, M.D. pursuant to CPLR § 3212 granting summary judgment dismissing plaintiff's complaint is denied.