Opinion
15609/06.
Decided August 12, 2008.
Friedman Friedman Chiaravalloti Giannini, Plaintiffs.
Kaufman Borgeest Ryan LLP by Jacqueline Mandell, Esq., Defendant.
Upon the foregoing papers, defendant Kaumudi Somnay, M.D. ("Dr. Somnay") seeks an order, pursuant to CPLR 3212, dismissing plaintiffs' complaint.
Plaintiffs commenced this action in May of 2006, alleging medical malpractice, lack of informed consent and loss of services in connection with the defendant's care and treatment of plaintiffs' decedent during the fall of 2004. Dr. Somnay interposed a Verified Answer in July 2006, discovery was completed and a Note of Issue filed on December 18, 2007. The instant motion, filed February 17, 2008, is now before the court.
In or about February 2004, Hosein Rezvani ("decedent"), who was then 79 years of age, underwent the surgical removal of his gallbladder while in the Middle East. On August 24, 2004, after his return to the United States, he presented to Dr. Nurhussein, his private physician, with complaints of abdominal pain, nausea and dark urine. An August 30, 2004 sonogram revealed a dilated common bile duct. A CT scan performed on September 1, 2004 showed "[m]ild intrahepatic and extrahepatic biliary dilatation with a 1.1 cm stone . . . in the distal common bile duct." Dr. Afshin Rezvani ("Dr. Rezvani"), the decedent's son, arranged for Dr. Somnay to perform an ERCP [endoscopic retrograde cholangiopancreatography] on his father at Downstate Hospital.
Dr. Rezvani is a Board Certified Oral and Maxillofacial Surgeon. He testified that while working at Downstate he made inquiries and learned that "Dr. Somnay is the director of GI or ERCP and she is good,' so I said okay. So I recommended [it] to my dad."
An ERCP was performed to remove the retained gallstone on September 16, 2004, on an outpatient basis. The operative report states that "[m]ultiple periampullary diverticula" were observed and that a "large 1 cm CBD stone, debris and sludge were removed." Following the procedure the decedent was found to have "whole body" subcutaneous emphysema (air bubbles under the skin) and crepitius, indicative of retroperitoneal perforation. Consultations were obtained with surgery, otolaryngology, cardiothoracic, pulmonology and other specialists, and diagnostic testing performed in order to identify the site of the perforation and to rule out esophageal and pulmonary perforations. A CT scan of decedent's body revealed a duodenum perforation. The decedent was referred to Dr. Sirsi, a surgeon, who admitted the decedent to the intensive care unit that day and performed a surgical repair the following day. Dr. Sirsi's operative report notes a 2 cm duodenal diverticular perforation just distal to the entry of the common bile duct. On September 24, 2004 Dr. Sirsi performed a second surgery to repair an abdominal evisceration, and on October 4, 2004 a third surgery to repair a ruptured diverticulum distal to the one repaired on September 17th. On October 7, 2004 a fourth surgery was undertaken by Dr. Sirsi to address intra-abdominal collection, sepsis and necrotic skin. Mr. Rezvani's condition worsened and he died on October 23, 2004.
Defendant supports her motion with the affirmation of David A. Greenwald, M.D., a physician board certified in Internal Medicine-Gastroenterology who avers that he has performed "many" ERCP procedures. Dr. Greenwald opines, based upon review of the medical records and deposition testimony, that Dr. Somnay acted at all times in full accord with good and accepted medical practice.
Specifically, he opines that the treatment of the decedent's bile duct obstruction "was unquestionably a medical necessity" since the stone obstructing the duct prevented bile created in the liver from flowing, as it should, into the duodenum. Common bile duct obstruction causes cholangitis which "typically leads to severe systemic complications and can be fatal." According to Dr. Greenwald, ERCP is one of two generally accepted methods of treating the condition and has a greater than 90 percent success rate. ERCP can be performed in less than one hour on an out-patient basis and without general anesthesia. The alternative, open abdominal surgery, requires a minimum 3-5 day hospital stay, general anesthesia and weeks to recover. Moreover, while perforation is a known risk of ERCP which can occur in the absence of negligence, open abdominal surgery for common bile duct obstruction is "technically complicated and carries far more risk to the patient than ERCP."
Dr. Greenwald also opines within a reasonable degree of medical certainty that Dr. Somnay performed the ERCP in full compliance with good and accepted practice. He points out that a normal bile duct typically measures 7-8 mm in diameter and that the decedent's gallstone measured 1.1 cm or approximately 11 mm. Accordingly, Dr. Somnay had to cut the Sphincter or Oddi muscle to allow the stone, sludge and debris to be removed. Dr. Greenwald avers that "the therapeutic aspect of the ERCP . . . was a complete success" as the potentially fatal common bile duct obstruction was relieved.
With respect to the perforation, Dr. Greenwald avers that an ERCP requires "insufflation of air into the duodenum and manipulation of the endoscope," both of which exert pressure on the intestine lining and either of which can cause a perforation. A diverticulum — an out-pouching of the lining of the intestine — is "particularly susceptible to rupture." Thus, a perforation of decedent's duodenal diverticulum is not per se indicative of malpractice. Moreover, states Dr. Greenwald, Dr. Somnay performed the procedure "in textbook fashion."
Dr. Greenwald avers that after the procedure Dr. Somnay returned the decedent to the supine position and immediately noticed that he had subcutaneous emphysema and crepitus which are signs of possible perforation. She immediately called for numerous consultations and diagnostic tests in order to identify the site of the perforation and arrange for prompt care. Dr. Greenwald opines that Dr. Somnay acted properly when, immediately following the ERCP, she recognized that the patient may have suffered a perforation and referred the patient to the appropriate specialist for treatment.
In opposition, plaintiffs rely upon the affidavit of a physician who is board certified in Internal Medicine-Gastroenterology. Plaintiffs' expert opines, based upon review of the medical records and deposition testimony, that Dr. Somnay committed the following departures: (1) failure to timely recognize decedent's intestinal perforation, as indicated by the records and Dr. Rezvani's testimony of a four-hour delay; (2) use of "excessive aggression in the insertion of the scope" as evidenced by the location of the perforation in an area where Dr. Somnay had no reason to have instrumented; (3) failure to abandon the ERCP upon encountering diverticula; and (4) failure to treat the decedent conservatively for the perforation by monitoring him on antibodies and naso-gastric tube drainage, in lieu of surgery, and failure to advise decedent of the risk and alternatives to surgical repair. He opines that Dr. Somnay's departures proximately caused the decedent's injuries, suffering and death.
Plaintiffs' expert states that "had it not been for Dr. Somnay's departures, the decedent who was in stable condition . . . could have avoided surgery and its inherent risk, including infection which he ultimately developed and could not overcome." Plaintiffs' expert avers that the "location and size of the perforation . . . suggest negligent ERCP performance," as each perforation is "beyond the point of entry to where the ERCP was to be anatomically performed." In the expert's opinion the presence and location of two perforations is evidence of negligence. The expert opines that once diverticulum was discovered the decedent's candidacy for ERCP ended, as patients with diverticulum are at a much higher risk for perforation and must be offered a less risky alternative, including open common bile duct surgery.
In addition, plaintiffs' expert avers, the patient was incapable of providing informed consent at this point (during the ERCP), as no Persian interpreter was provided to him and he was not advised that "exploratory common bile duct surgery . . . has less risk than an ERCP, particularly if diverticulum . . . are a concern." Once the diverticulum was discovered, Dr. Somnay should have obtained the decedent's or his son's consent to continue the ERCP. The expert avers, "I fully expect that given notice of the presence of the diverticulum and the risk they pose for perforation, any reasonable patient would have refused the ERCP."
In an affidavit Dr. Rezvani affirms that prior to performing the ERCP Dr. Somnay did not discuss the risk of bowel perforation with his father, in his presence, and that had she explained this risk to his father, who was also a physician, his father would have elected surgery. Dr. Rezvani avers that when he arrived to pick up his father, four hours after the ERCP procedure, he discovered severe subcutaneous emphysema and demanded an immediate assessment. It was at that point that consults were ordered. According to Dr. Rezvani, no one discussed his father's diverticula with him and, had Dr. Somnay advised him of same, he would have demanded immediate termination of the ERCP.
In reply, Dr. Somnay argues that plaintiff's contention that Dr. Somnay deviated from accepted standards by not terminating the ERCP once she observed diverticula in decedent's colon, is a new theory of liability being raised for the first time in opposition to her motion, and should be rejected by the court ( Alvarez v. Prospect Hospital, 68 NY2d 322, 327).
DISCUSSION
Medical Malpractice
The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of the patient's injury ( Roca v. Perel , 51 AD3d 757 , 758]; Furey v. Kraft , 27 AD3d 416 , 417-418). Thus, "[o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, he defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby'" ( Chance v. Felder , 33 AD3d 645 , citing Williams v. Sahay, 12 AD3d 366, 368). Failure to make a prima facie showing requires denial of the motion "regardless of the sufficiency of the opposing papers" ( Chance, 33 AD3d at 645 , citing Alvarez, 68 NY2d at 324).
Once a defendant makes a prima facie showing, the burden shifts to the party opposing summary judgment to "submit a physician's affidavit of merit attesting to a departure from accepted practice containing the attesting doctor's opinion that the defendant's omissions or departures were a competent producing cause of the injury" ( Domaradzki v. Glen Cove Ob/Gyn Assocs., 242 AD2d 282). Affidavits of a medical expert which are conclusory, speculative or based on an incorrect understanding of the facts are of no probative value ( Glazer v. Choong-Hee Lee , 51 AD3d 970 , 971; Micciola v. Sacchi , 36 AD3d 869 , 871). "[W]here the parties adduce conflicting medical expert opinions" summary judgment is not appropriate as such "credibility issues can only be resolved by a jury" ( Feinberg v. Feit , 23 AD3d 517 , 519; see also Roca v. Perel , 51 AD3d 757 , 759).
Plaintiffs' Verified Bill of Particulars of September 26, 2006 alleges two departures by Dr. Somnay — "[i]mproper performance of [the] ERCP [which] led to perforation" and failure to timely recognize the perforated duodenum and to immediately refer decedent to a surgeon for repair.
In support of her motion the defendant's gastroenterologist, Dr. Greenwald, avers that he reviewed "plaintiffs' allegations and all of the relevant medical records, film and testimony pertaining to this matter" and that Dr. Somnay complied with good and accepted medical practice. He opines that perforation is a known risk of ERCP as the procedure requires insufflation of air into the duodenum and manipulation of the endoscope, both of which are unavoidable aspects of ERCP which may result in perforation in the absence of negligence. In his opinion, Dr. Somnay conducted the procedure in "textbook fashion." In Dr. Greenwald's opinion, notwithstanding the risk of perforation, surgery would have been "technically complicated" and "far more" risky to the patient than ERCP. Accordingly, Dr. Somnay makes a showing of prima facie entitlement to summary judgement on this claim.
A copy of Dr. Somnay's Operative Report is annexed to defendant's motion papers.
In opposition, plaintiffs fail to raise a triable issue of fact with respect this claim. Plaintiffs' gastroenterologist avers that Dr. Somnay departed in (1) negligently causing the intestinal perforation by excessive aggressiveness in insertion of the scope during the ERCP and (2) failing to timely diagnose the perforation. In addition, plaintiffs' experts asserts that Dr. Somnay departed by (3) failing to abandon the ERCP once diverticula were encountered and (4) failing to treat decedent's perforation with antibiotics and a naso-gastric tube rather than surgically. The latter two claims are being raised for the first time in opposition to this motion.
"While modern practice permits a plaintiff to successfully oppose a motion for summary judgment by relying on an unplead cause of action which is supported by the plaintiff's submissions," ( Gallello v. MARJ Distributors, Inc. , 50 AD3d 734 , 736, citing Comsewogue Union Free School Dist. v. Allied-Trent Roofing Systems, Inc. , 15 AD3d 523 , 524), here the plaintiff's unexplained delay in presenting the new theories of liability, after the note of issue was filed, warrants rejection of these arguments ( id., citing Medina v. Sears Roebuck Co. , 41 AD3d 798 , 799-800). Neither the Complaint or the Verified Bill of Particulars alleges that Dr. Somnay should have abandoned the ERCP once she observed diverticula in the decedent's colon. Nor, have plaintiffs proffered an explanation for their delay in asserting the additional theories.
The Note of Issue was filed on December 18, 2007 and the matter appeared on the trial calendar on July 24, 2008.
Moreover, the affidavit of plaintiffs' gastroenterologist fails specifically to address assertions made by the defendant's expert that perforation is a known and accepted risk of ERCP, and that insufflation of air into the duodenum is an unavoidable aspect of ERCP which may result in perforation ( see Rebozo v. Wilen , 41 AD3d 457 , 459; Slone v. Salzer , 7 AD3d 609 , 610). Accordingly, the conclusion of plaintiffs' expert that the perforation resulted from excessive aggressiveness and failure to recognize anatomical landmarks is rendered speculative ( cf. Petty v. Pilgrim , 22 AD3d 478 , 481; Moore v. New York Medical Group, P.C. , 44 AD3d 393 , 396-397).
With respect to plaintiffs' second theory, defendant's expert Dr. Greenwald opines that Dr. Somnay "promptly recognized" that the patient sustained a perforation, "immediately called for numerous consultations" and "immediately and appropriately" ordered diagnostic tests, and that there was "no delay whatsoever" in turning the decedent's care over to a surgeon. However, the basis for these conclusions, whether medical records or deposition testimony, is not disclosed ( Cassano v. Hagstrom, 5 NY2d 643, 646 ["opinion evidence must be based on facts in the record or personally known to the witness"]; Wagman v. Bradshaw, 292 AD2d 84, 87; cf. Spergel v. Rubenstein, 243 AD2d 556 [expert's affirmation based upon "material facts not supported by the evidence"]). In this regard, the ERCP operative report [Defendant's Exhibit "G"] states " Procedure . . . patient tolerated procedure well and there were no complications. Patient was transferred to recovery room." The operative report further states " Plan . . . Stat surgical consult for suspected perforation because of subcutaneous emphysema." The transcript of Dr. Somnay's deposition testimony or that of other witnesses, and records indicating when the subcutaneous emphysema was first observed and just how long after the ERCP the "Plan" was developed have not been provided. The basis for Dr. Greenwald's opinion that Dr. Somnay acted immediately, therefore, is unsupported.
Thus, defendant fails to demonstrate her prima facie entitlement to summary judgment with respect to plaintiffs' claim regarding untimely diagnosis and treatment of the perforation. Were the court required to consider whether plaintiffs have raised a triable issue of fact on this claim, ( see Pedro v. Walker , 46 AD3d 789 , 790), it would conclude that plaintiffs have. Their expert opines, based upon the deposition testimony of Dr. Rezvani, that the decedent's subcutaneous emphysema and crepitus were discovered at 4:00 p.m., that this statement is supported by medical records and that this evidence indicates a failure to timely diagnose and treat the decedent's intestinal perforation.
Dr. Rezvani also sets forth these contentions in an affidavit annexed to the plaintiff's opposition papers.
See ie. Operative Report.
Informed Consent
"To establish a cause of action for malpractice based on lack of informed consent, the plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto, and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" ( Trabal v. Queens Surgi-Center, 8 AD3d, 555, 556, citing Foote v. Rajadhyax, 268 AD2d 747, 745-746; Public Health Law § 2805-d; Flores by Flores v. Flushing Hospital Medical Center 109 AD2d 198, 200-202). "[T]he causal connection between a doctor's failure to perform his [or her] duty to inform and a patient's right to recover exists only when it can be shown objectively that a reasonably prudent person would have decided against the procedures actually performed. Once that causal connection has been established, the cause of action . . . for failure to inform has been made out and a jury may properly proceed to consider plaintiff's damages" ( Trabal, 8 AD3d at 556).
In support of this branch of the motion, Dr. Somnay relies upon a copy of the signed consent form for the ERCP and the affirmation of Dr. Greenwald who opines that the decedent's condition at that time was "life-threatening" and that "no reasonably prudent person would decline having an ERCP in the circumstances, notwithstanding the risk of perforation." Plaintiffs' expert does not address the qualitative sufficiency of the information provided. However, whether a reasonably prudent patient in the same position as the decedent, if advised of the risk of perforation, nonetheless, would have undergone the procedure merely presents a question of fact ( see Hylick v. Halweil, 112 AD2d 400, 402; Flores by Flores v. Flushing Hospital and Medical Center, 109 AD2d at 200-201) requiring a balancing of the risk associated with undergoing the procedure ( id.).
Moreover, whether the decedent's condition was sufficiently emergent as to justify a failure to provide the required information ( see Public health Law § 2805[a], [excluding emergency procedures]), or as to prohibit obtaining a proxy consent ( see Connelly v. Warner, 248 AD2d 941, 942-943; Goodreau v. State, 129 AD2d 978; Shinn v. St. James Mercy Hospital, 675 F.Supp. 94, affirmed 847 F2d 836 [1988]), are similarly jury questions.
As defendant fails to demonstrate her prima facie entitlement to judgement as a matter of law on this claim the court need not address the sufficiency of the opposing papers ( Pedro v. Walker, 46 AD3d at 790; see also Alvarez v. Prospect Hospital, 68 NY2d at 324). Accordingly, it is
ORDERED, that the defendant's motion for summary judgment is granted to the extent indicated herein, and otherwise denied; and it is further
ORDERED, that counsel for all parties appear in the Medical Malpractice Trial Readiness Part on October 2, 2008.