Opinion
# 2015-050-501 Claim No. 117963
03-25-2015
JOHN GUMIN AND NADINE GUMIN v. THE STATE OF NEW YORK
Patrick J. Hackett, Esq. Hon. Eric T. Schneiderman, NYS Attorney General By: Albert E. Masry, Assistant Attorney General and Renee Cote, Assistant Attorney General
Synopsis
An action for damages for alleged medical malpractice, claimant suffered from a stroke at SBU hospital. The sole issue to be determined at this trial was whether in its treatment of claimant, the defendant departed from standards of medical care accepted in the medical professional community. The Court concluded that the actions by the defendant's personnel did not constitute a departure from prevailing standards of care or caused or contributed to claimant's injury and physical condition. Defendant's motion to dismiss was granted.
Case information
| UID: | 2015-050-501 |
| Claimant(s): | JOHN GUMIN AND NADINE GUMIN |
| Claimant short name: | GUMIN |
| Footnote (claimant name) : | |
| Defendant(s): | THE STATE OF NEW YORK |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 117963 |
| Motion number(s): | |
| Cross-motion number(s): | |
| Judge: | STEPHEN J. LYNCH |
| Claimant's attorney: | Patrick J. Hackett, Esq. |
| Defendant's attorney: | Hon. Eric T. Schneiderman, NYS Attorney General By: Albert E. Masry, Assistant Attorney General and Renee Cote, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | March 25, 2015 |
| City: | Hauppauge |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
This action for damages for the alleged medical malpractice of defendant was tried in June, 2014. The transcript of trial was filed and the parties submitted their posttrial memoranda of law to the undersigned on January 22, 2015. The Court has reviewed all the testimony and documentary proof in light of the parties' posttrial memoranda.
The essential facts forming the context of this claim are undisputed. On September 12, 2007, claimant John Gumin went to work in Brooklyn. While at work conducting an interview at about 1:00 p.m. he experienced physical symptoms he described as tingling in his lips, numbness in his face and difficulty speaking. He called his wife, claimant Nadine Gumin, and left work to drive himself home, planning to try to see his neurologist, a Dr. Frederic Mendelsohn (with whom he had treated in 2006 following an auto accident). After arriving home he went to Dr. Mendelsohn's office. John was seen by staff at Mendelsohn's office; his blood pressure was taken and he was told to go to the hospital emergency room. John and Nadine drove to the emergency room at defendant's Stony Brook University Hospital (SBU) arriving there at about 4:24 p.m. at which time John was seen in triage and checked into the "acute care" part of the emergency room area (hereinafter "acute care"). At the time of his arrival at SBU he was asymptomatic, that is, he did not have the facial numbness or difficulty speaking he had experienced earlier that day. John was seen by neurology resident Dr. Laura Donarummo at approximately 6:30 or 7:00 p.m. He was assessed by her and a CAT scan was ordered, which was performed at approximately 7:55 p.m. The CAT scan was normal. John's blood pressure was noted to be high at its initial reading in acute care at approximately 4:30 to 5:00 p.m. and at various intervals into that evening when it was retested. Nadine remained with John at acute care only occasionally stepping outside to make telephone calls. Based on the information concerning symptoms of facial numbness experienced earlier that day and prior to that day, Dr. Donarummo, in consultation with her supervisor, Dr. Cara Harth, proceeded with the steps involved in preparing a differential diagnosis based on John's experienced symptoms, examinations, tests and reading results. The differential diagnoses is, in lay terms, a range of possible disorders (illnesses, physical problems) to form a framework of possibilities as the genesis of John's symptoms. Dr. Donarummo testified that she ordered an MRI (in the vicinity of 7 p.m.) although that order was not written at that time.
According to Nadine, at about 8:30 p.m. she stepped outside the emergency room to make a phone call, prior to which John remained normal in appearance. While on the phone, Nadine was notified by a family friend (who happened to appear at the emergency room in his job as an emergency technician for unrelated reasons) that he had just spoken to John and that John needed her. Upon returning to John, Nadine spoke to John who told her he was having tingling and numbness in his lips and mouth. During that conversation Nadine testified that the left side of John's face was drooping. She called for help and staff of the emergency room were present immediately. Dr. Donarummo was called to John's side and a "code BAT" was called. A "code BAT" is called when a patient is believed to be experiencing a stroke. The code BAT was reflected in the records as called at 9:15 p.m. Immediately another CAT scan was done (at 9:26 p.m.) and it was followed by an MRI (the first) at about 9:50 p.m. The CAT scan was negative. The MRI was completed by 10:45 p.m. The MRI showed that an infarction (as it relates to the brain, the death of brain tissue) had occurred in the right middle cerebral artery.
Late in the evening on September 12, 2007, Dr. Harth conferred with Dr. Henry Woo (who was then being consulted with by telephone as he was at home), the Director of the Cerebral Vascular Center at SBU, concerning whether a treatment known as TPA (tissue plasminogen activator) therapy (TPA) should be administered to John under the existing circumstances. TPA is essentially a bolus with a drug infusing the patient's system with a blood thinning solution. It was agreed through consultation between Dr. Harth and Dr. Woo to proceed with use of TPA which was ordered at 11:40 p.m. and started at 12:00 a.m. When the TPA therapy did not dislodge the clot which was in the artery, Dr. Woo again was consulted and it was decided that the next action would be a mechanical thrombectomy (essentially manual removal of the clot through use of instrumentation introduced through the groin artery) to be performed by Dr. Woo, who had performed this procedure many times before. Dr. Woo appeared at the hospital sometime after 1:00 a.m. on September 13, 2007 and completed the mechanical thrombectomy prior to 3:00 a.m. Due to the profusion of blood in the right side of the cranium, the swelling (following the mechanical thrombectomy) was such that a craniotomy had to be performed later in the day on September 13, 2007. Craniotomy involves removal of a portion of the skull bone to relieve the pressure, the otherwise lethal nature of which there seems to be no dispute about. Through this ordeal, John experienced the loss of brain tissue of an unquantified amount which is claimed to have affected his physical functioning including walking and certain other motor as well as cognitive skills.
In a medical malpractice claim, the claimant has the burden of proof and must prove (1) a deviation or departure from accepted practice and (2) that such deviation was the proximate cause of the injury or other damage (see Hattendorf v State of New York, 4 Misc 3d 1008 [A] [Ct Cl 2004]). As noted by the Court in DuPont v State of New York, 19 Misc 3d 1144 (A) (Ct Cl 2008),
"it is the claimant's burden to show that the medical professionals involved either did not possess the requisite knowledge and skill ordinarily possessed by practitioners in the field, or neglected to use reasonable care in the application of the requisite knowledge and skill, or failed to exercise their best judgment (Pike v Honsinger, 155 NY 201; Hale v State of New York, 53 AD2d 1025, lv denied 40 NY2d 804). For liability to be imposed, there must be a showing that the medical provider's treatment decision was 'something less than a professional medical determination.' (Darren v Safier, 207 AD2d 473, 474; Ibguy v State of New York, 261 AD2d 510). A physician's duty is to provide the level of care acceptable in the professional community, he is not required to 'achieve success in every case and cannot be held liable for mere errors of professional judgment' where a choice is made between medically acceptable alternatives or diagnoses (Schrempf v State of New York, 66 NY2d 289, 295; Oelsner v State of New York, 66 NY2d 636; Nestorowich v Ricotta, 97 NY2d 393, 399)."
The burden of proof upon a claimant at trial is to demonstrate that malpractice has occurred "by a preponderance of the competent and credible evidence (see e.g. Speciale v Achari, 29 AD3d 674 [2d Dept 2006]; Milashouskas v Mercy Hosp., 64 AD2d 978 [2d Dept 1978]; Kern v State of New York, Claim No. 107482, Ct Cl, Aug. 9, 2006, Nadel, J. [UID No. 2006-014-112])" (Duverger v State of New York, 15 Misc 3d 1119 [A]).
By stipulation (requested by counsel), the issue of liability was bifurcated from the issue of damages. Therefore, the sole issue to be determined at this trial is whether in its treatment of John Gumin, the defendant departed from standards of medical care accepted in the medical professional community (see DuPont v State of New York, 19 Misc 3d 1144 [A] [Ct Cl 2008] citing Schrempf v State of New York, 66 NY2d 289, 295 [1985]). The Court notes that in his opening statement, claimants' counsel identified the claimed departures at trial as two: the use of TPA therapy and the alleged delay in MRI testing. On claimants' direct case, in addition to both claimants and the family friend who appeared at the hospital that day (Michael Atkinson), claimants called Dr. Donarummo, Dr. Harth and claimants' expert witness Dr. Allan Hausknecht, a neurologist. Claimants also called Dr. Jennifer Ehlers, who was an attending emergency room physician present on the evening of September 12, 2007, whose first contact with John's care occurred at 5:50 p.m. that day in the emergency room; claimants also introduced portions of certain testimony of Dr. Wendy Gaza and Dr. Henry Woo. On defendant's case, defendant presented the expert testimony of Dr. Jeffrey Katz, a neurologist.
At root, this case presents the classic scenario, in the medical malpractice claim context, of battling experts. Claimants endeavor to demonstrate through Dr. Hausknecht that John's care by defendant's staff was negligent and involved the asserted departures from good and accepted medical care and treatment. Defendant contends through its expert Dr. Katz that, despite the stroke which John experienced while in the hospital, its staff did not commit any departures and, in fact, rendered intense, professional and complex care which averted greater injury or death.
There is a strong contextual presence in this case of an unfolding human drama involving not only the claimants but the defendant's personnel. At the time of his arrival at the SBU emergency room, outwardly John was stable on September 12, 2007, in that no focal neurological symptoms were evident upon examination or reported. As noted, what ensued during his assessment and treatment and the time which that took was a cascading event where symptoms appeared (facial droop, difficulty speaking) whereupon reactive actions and treatment took place. That this medical event unfolded in defendant's facility and while John was in defendant's care is a circumstance which distinguishes it from the type of medical malpractice claim where the patient arrives at the emergency room already having suffered the illness or injury which gives rise to treatment. In this case some, if not all, of the patient's physical breakdown occurred in acute care that evening. Due to this circumstance, the resolution of the issue before the Court entails viewing the picture of events presented (through testimony and other proof) of defendant reacting to the unfolding event - in this case, an ischemic stroke involving the occlusion of the middle cerebral artery. In essence, this case involves an unfolding emergency which became evident at a specific point after John came under defendant's care on September 12, 2007. Defendant's actions therefore must be and are considered in the context of such an emergency (once it spilled forth at about 9:05 p.m). That is, whether or not the defendant committed the claimed departures must be and is considered in light of the medical emergency which developed that evening. However, the resolution of the question of whether or not a departure or departures occurred is to be reached not based solely upon the rapidly occurring and changing nature of the patient's condition as it deteriorated but, also, through a prism where the reasonableness and propriety of defendant's reactions and rendering of care are measured in light of the factual context which existed. In short, the questions presented are whether defendant departed from accepted standards of medical care in administering TPA to John after onset of this ischemic stroke (in acute care) and whether the asserted delay in administering MRI testing constituted such a departure.
Dr. Hausknecht testified on claimants' behalf that the TPA administration under the circumstances which unfolded during the evening of September 12, 2007 was contraindicated. He claimed through his testimony that the TPA was administered to John outside a three-hour window which was to be applied in its use. According to Dr. Hausknecht, such three-hour window opened not with the experience of focal neurological symptoms by John in the SBU emergency room (at about 9 p.m). but, rather, upon the first experience of such symptoms by John two to three days prior to his arrival at the SBU emergency room. This interpretation of the proper application of the three-hour window for treatment became a focal point of dispute between the parties' competing experts (Dr. Hausknecht and Dr. Katz). Dr. Hausknecht also advanced the position that the TPA therapy was deleterious to the patient under the existing circumstances aside from the fact that its usage was precluded by time (as discussed) under his interpretation of governing neurological medical practice norms. Dr. Hausknecht also attempted to challenge the propriety of the defendant's employment of the medical thrombectomy at the point that TPA infusion had been completed and had been unsuccessful. He opined in response to direct questioning that the proper course for this patient's care would have been to treat him with aspirin and rest and not to intervene with use of TPA or thrombectomy. He stated that the use of TPA and thrombectomy were departures.
Dr. Katz opined in substance that use of TPA therapy was not a departure and, in fact, was warranted notwithstanding the emergent stroke and the presence of the clot in John's right middle cerebral artery because, in his opinion, the solution had the potential for dislodging the clot. In essence, Dr. Katz opined that using this step (TPA) initially - once the MRI and MA angiogram located the clot as well as the penumbra of brain tissue at risk - was an appropriate prerequisite to consideration and use of the mechanical thrombectomy to dislodge the clot manually. He stated that although TPA did not achieve the dislodging of the clot in John's artery, it had possibly benefitted or added to the potential success of the subsequent thrombectomy in his view. He opined further that no departures occurred in defendant's care and treatment of John.
What emerges from the proof presented and viewed in its entirety is a complex picture of a stroke in progress in the acute care emergency room and the reactions of defendant's staff to that emergency. Much attention was focused by claimants on the high level of blood pressure undisputedly present at John's arrival at 4:24 p.m. and the fact that it remained high. Yet that feature - without the presence of focal neurological symptoms at arrival (and until approximately 9:05 p.m.) - cannot alone be determinative in assessing whether the defendant's development, employing established acute emergency room procedures, of a differential diagnosis over a period of approximately four and a half hours was reasonable in this case. Dr. Katz opined in effect that the course followed by defendant was entirely within the bounds of good and accepted practice throughout, including the sequence and timing of tests used - CAT scans, MRI, MA angiogram - and procedures executed - TPA therapy, mechanical thrombectomy and, finally, partial craniotomy. Dr. Katz agreed in all respects with the aggressive treatment employed by defendant's personnel upon the manifestation near 9:05 p.m. on September 12, 2007, of John's focal neurological symptoms in acute care. Dr. Katz completely disagreed with Dr. Hausknecht's opinion that no such treatments should have been employed.
Contrary to the claimants' contention herein as evinced through testimony elicited from its witnesses, the presence of the elevated blood pressure at and after John presented at the emergency room on September 12, 2007 at 4:20 p.m. was not sufficient to warrant a different reaction than that which defendant employed (development of a differential diagnosis over the next few hours through diagnostic testing) in the treatment rendered to John. The Court so finds in view of the undisputed fact that the patient appeared normal (that is, neurologically and functionally) when he arrived at 4:24 p.m. notwithstanding his reports of prior symptomatology earlier that day and in the proceeding few days. It is clear and the Court finds that the treatment and care administered by defendant prior to the ischemic attack at about 9:05 p.m. was within the bounds of good and accepted treatment. It is also clear to the Court following deliberation upon all the proof - including the disparate opinions of the parties' experts - that the measures employed by defendant once John experienced neurological symptoms in the acute care emergency room at about 9:05 p.m. and the stroke "code BAT" was called, were pursued reasonably and within the bounds of good and accepted medical practice and in a concerted team effort to salvage from the unfolding, traumatic event in John's brain as much functioning brain tissue and as much function as possible. Measures employed by defendant's personnel during that one and a half day period included life threatening treatments and technologies. Danger was inherent in every step of the way given the emergent event of stroke. The Court accepts and agrees with the expert opinion advanced by Dr. Katz that the multifaceted diagnostic and treatment modalities executed by defendant's personnel during the period in question were in all respects within the scope of good and accepted standards of medical care prevailing in the subject medical professional community and that no departures as claimed by claimants occurred see Kleinmann v St. Peter's Hosp., 298 AD2d 675 [3d Dept 2002]). It further rejects the opinions advanced by the claimants' expert Dr. Hausknecht. In so finding, the Court further concludes that consideration of the entire record warrants the conclusion that the claimants have failed to carry their burden of proof in failing to demonstrate the presence of any departures in the defendant's conduct from good and accepted standards of care in the treatment of John Gumin. In reaching this conclusion, the Court observes that, in the simplest of terms, the claimants' expert opined that doing nothing (except administering a baby aspirin and providing rest) was the proper course notwithstanding clear evidence of ischemic stroke, in effect, a wait-and-see approach. Given the strength of the focal symptoms which occurred in the acute care emergency room (vomiting, confusion, partial face drooping/paralysis), the Court instead credits the opinion of Dr. Katz - that available therapies be aggressively pursued - as they were by defendant's personnel. More specifically, it finds more credible and patently rational the contention and opinion advanced on behalf of defendant that all the actions taken were appropriate, reasonable and within the bounds of medical propriety, that is, not departures. While the Court and anyone viewing this medical drama is sympathetic to John's physical trauma, nothing presented here has persuaded this Court to conclude that any actions by the defendant's personnel constituted a departure from prevailing standards of care or caused or contributed to John's injury and physical condition.
In accordance with the foregoing, the Court grants the defendant's motion to dismiss the claim herein in all respects and the claim is hereby dismissed.
Let judgment be entered in favor of defendant accordingly.
March 25, 2015
Hauppauge , New York
STEPHEN J. LYNCH
Judge of the Court of Claims