Opinion
Index No. 805041/2018 Motion Seq. No. 003
11-21-2022
MUJTABA SAYAR, Plaintiff, v. DIVYA SRIDHAR, MEREDITH MCDERMOTT, NYU LANGONE MEDICAL CENTER Defendant.
Unpublished Opinion
Motion Date 11/17//2022
PRESENT: HON. JUDITH MCMAHON Justice
DECISION + ORDER ON MOTION
HON. JUDITH MCMAHON JUSTICE
The following e-filed documents, fisted by NYSCEF document number (Motion 003) 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61,62, 65, 66, 67, 68, 69, 70, 71, 72, 73 were read on this motion to/for JUDGMENT - SUMMARY.
Upon the foregoing documents, it is ordered that the motion of defendants Divya Sridhar, M.D., Meredith McDermott, M.D., and NYU Langone Hospitals s/h/a NYU Langone Medical Center (hereinafter, collectively the "defendants") for summary judgment pursuant to CPLR §3212 is granted, and the complaint is dismissed.
This medical malpractice matter arises from the ultrasound-assisted interventional radiology ("IR") drainage of an infected renal cyst by the defendant doctors, which was complicated by an infection of the lung requiring, inter alia, a subsequent VATS (video assisted thoracoscopy with decortication of the lung) surgery. Plaintiffs initial pleadings claimed that the defendants were negligent in placing the drainage catheter through the pleural space, thereby causing an infection and sepsis. In opposing defendants' summary judgment motion, however, plaintiff alleged (for the first time), that the IR catheter should have been pulled out "immediately" after the procedure was completed, when a chest x-ray and CT scan found no other explanation for plaintiffs post-surgical symptoms and complaints.
Traversing the pleural space is a well-known and accepted consequence of an ultrasound guided IR drainage procedure.
At the outset the Court notes that plaintiff s new allegations appear tailored to avoid judgment in defendants' favor. Inasmuch as it is well settled that a plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting, for the first time in opposition to the motion, new theories of liability that were not previously set forth in the complaint or bills of particulars (see Abalola v. Flower Hospital, 44 A.D.3d 522 [1st Dept. 2007]; Wilson v. New York City Transit Authority, 66 A.D.3d 602 [1st Dept. 2009]), and since plaintiffs expert is not an interventional radiologist and never performed the procedure at issue in this case, then summary judgment dismissing plaintiffs complaint must be awarded to the defendants.
FACTUAL BACKGROUND
Thirty-one-year-old plaintiff, Mujtaba Ahamad Sayar, initially presented to NYU's emergency department on January 29, 2016 with complaints of right flank pain for five days which was radiating into his lower abdomen. His white blood cell count was elevated, and a CT scan of plaintiff s abdomen and pelvis revealed a renal cyst measuring 7x6x5.2 cm in the right upper pole with findings that were consistent with an infected renal cyst. The urology team recommended conservative management by way of oral Ciproflaxin and monitoring, but that proved insufficient when plaintiffs temperature spiked to 102.6 and he became tachycardic. In this regard the Court notes defendants' experts' explanation for plaintiffs worsening condition despite the administration of antibiotics (i.e., that an infected renal cyst is a "closed" space infection, meaning it is "walled off' inside the organ, limiting the ability of antibiotics to penetrate the cyst). In any event, Vancomycin and Cefepime were added to plaintiffs treatment, and a consult with interventional radiology was secured since plaintiff had met the criteria for SIRS (systemic inflammatory response syndrome) and suffering from sepsis.
On January 30, 2016, plaintiff signed a consent form (acknowledging, inter alia, that invasion of the pleural space is a known and accepted risk) for the right renal cyst drainage procedure, and defendant Dr. Sridhar performed the ultrasound-guided drainage of the right upper pole renal cyst, assisted by defendant IR fellow, Dr. McDermott. The entire procedure was performed under ultrasound guidance, and the abscess was drained. The operative report reflects that Dr. Sridhar aspirated approximately 120 ml of purulent material from the cyst. A sample sent to pathology later confirmed an E. coli infection. No complications were encountered. Because of the thickness of the contents and the fact that the nature of this infection continues to produce more material, a drain was left in the kidney to remove the further accumulation of the infected fluids.
When an abscess develops, the only treatment is to go through the skin, into the kidney and physically remove the infected contents. This minimally invasive technique uses an ultrasound for guidance of the needle and a catheter for fluid collection. According to defendants' experts, this was the preferred method here due to plaintiffs deteriorating condition which would have presented more risks during surgery.
Upon return from the operating room, plaintiff developed a sudden onset of right chest pain and shortness of breath. A chest x-ray showed an asymmetric elevation of the right hemidiaphragm with right basilar atelectasis (a condition whereby the air sacs in the lung do not fully expand which is common after surgery). A CT scan was negative for pulmonary embolism or other acute abnormality, but the fever of unclear etiology was thought to be secondary to sepsis due to the infected renal cyst, and a plan was made to continue broad spectrum antibiotics.
On February 3, 2016 a chest tube was placed by IR followed by revision procedures on February 4, and February 6, 2016. A February 7, 2016 CT scan showed a possible empyema (i.e., infection of the pleural space surrounding the lungs).
On February 9, 2016, plaintiff underwent a VATS and pleural decortication for a complex right pleural effusion (fluid buildup between the lung and chest) performed by nonparty thoracic surgeon, Dr. Bernard Crawford.
On February 12, 2016, the anterior chest tube was disconnected. A chest x-ray showed a decrease in the right pleural effusion.
Plaintiff was discharged from NYU on February 15, 2016, after the remaining chest tube was removed. Documentation during a February 29, 2016 follow up with Dr. Crawford reflects that plaintiff s healing was "excellent."
EXPERT OPINIONS AND SUMMARY JUDGMENT
Defendants move for summary judgment on the grounds, inter alia, that the care and treatment rendered throughout the entirety of plaintiffs care (i.e., from January 29, 2016 through February 15, 2016) was in accord with good and accepted practice, that the named defendants, who only treated plaintiff on January 30, 2016, did not contribute to plaintiffs alleged injuries, and that the defendants' conduct was not a proximate cause of plaintiffs injuries and alleged sequalae.
In support of the motion, defendants submit the expert affirmation of interventional radiologist, David N. Siegel, M.D. (see NYSCEF Doc. No. 49), who reviewed the ultrasound images in connection with the January 30, 2016 procedure and opined to a reasonable degree of medical certainty, that (1) "Dr. Sridhar's performance of the percutaneous drainage of [plaintiff s] renal cyst was proper at all times"; (2) "image guided IR drainage can result in complications, owing to its limitations [because] the boundaries of the pleural space cannot be seen or visualized, and are at times impossible to avoid"; (3) Dr. Sridhar's decision to perform the ultrasound guided IR drainage of the infected renal cyst was entirely appropriate under the circumstances; (4) an attempt at surgery without initially performing IR drainage would have increased the risk to plaintiff, and the proper treatment was antibiotic therapy in conjunction with IR kidney drainage; (5) defendants evacuated all of the infected material that could have been aspirated, and properly left a drain in the kidney to prevent recurrence of the underlying infection; (6) contrary to the Bill of Particulars, plaintiff never suffered a lung perforation as a result of the procedure; (7) informed consent was properly obtained, and critically, (8) immediate or STAT removal of the catheter based on plaintiffs post-surgical complaints and diagnostic lung imaging results was not mandated by the standard of care. Defendants also attach the affirmation of infectious disease expert, Bruce Farber, M.D. (see NYSCEF Doc. No. 50), who concludes to a reasonable degree of medical certainty that at all relevant times, the care and treatment rendered to plaintiff was within good and accepted standards of medical practice.
In opposition, plaintiff attaches the redacted affirmation of a cardiologist (see NYSCEF Doc. No. 68). This expert is not an interventional radiologist and did not attest to having performed the subject procedure or rendering post-surgical care/evaluations as provided in this case. Accordingly, the Court finds the opinion of plaintiffs expert opinion to be speculative and without merit.
Nevertheless, plaintiffs expert maintains (solely) that STAT removal of the catheter was indicated based on his abrupt (post-surgery) symptomology, that plaintiffs symptoms were caused by the IR tube perforating his diaphragm and extending into his pleural cavity, and that had the IR tube been removed in a timely manner, plaintiff would not have developed a massive pleural infection requiring multiple attempts to place a chest tube for fluid drainage: "Had [defendants] recognized that the IR tube had likely perforated the diaphragm and the right pleural cavity, and had they removed the IR tube in a timely manner, plaintiff would not have required the complex surgery to clean out his pleural cavity and to mechanically assist in removing the infectious material from his right pleural cavity" (id., para 17).
APPLICABLE LAW
The standards for summary judgment are well settled. The proponent "must make aprima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985]; [internal citations omitted]). The motion must be supported by evidence in admissible form (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980]), and the facts must be viewed in the light most favorable to the nonmoving party (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). "In determining whether summary judgment is appropriate, the motion court should draw all reasonable inferences in favor of the nonmoving party and should not pass on the issues of credibility" (Garcia v. J.D. Duggan, Inc., 180 A.D.2d 579, 580 [1st Dept. 1992]).
Once the movant has met his or her burden on the motion, the nonmoving party must establish the existence of a material issue of fact (see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985]; [internal citations omitted]). It has been held that merely "pointing to gaps in an opponent's evidence is insufficient to demonstrate a movant's entitlement to summary judgment" (Koulermos v. A.O. Smith Water Prods., 137 A.D.3d 575, 576 [1st Dept. 2016]).
"The drastic remedy of summary judgment, which deprives a party of his day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (DeParis v. Women's Natl. Republican Club, Inc., 148 A.D.3d 401 [1st Dept. 2017]; [internal citations omitted]). "It is not the court's function on a motion for summary judgment to assess credibility" (Ferrante v. American Lung Assn., 90 N.Y.2d 623, 631 [1997]).
To sustain a cause of action for medical malpractice, the plaintiff must prove two essential elements: (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of the claimed injury. A medical provider moving for summary judgment, therefore, must make a prima facie showing of entitlement to judgment as a matter of law by establishing the absence of a triable issue of fact as to his or her alleged departure from accepted standards of medical practice (Frye v. Montefiore Med. Ctr., 70 A.D.3d 15 [1st Dept. 2009]; [internal citations omitted]), or by establishing that the plaintiff was not injured by such treatment (see generally Stukas v. Streiter, 83 A.D.3d 18 [2d Dept. 2011]).
To satisfy the burden on the motion, a defendant must present expert opinion testimony that is supported by the facts in the record, addresses the essential allegations in the complaint or the bill of particulars, and is detailed, specific, and factual in nature (see Roques v. Noble, 73 A.D.3d 204,206 [1st Dept. 2010]). If the expert's opinion is not based on facts in the record, the facts must be personally known to the expert and the opinion should specify "in what way" the plaintiffs treatment was proper and "elucidate the standard of care" (Ocasio-Gary v. Lawrence Hospital, 69 A.D.3d 403, 404 [1st Dept. 2010]). Once a defendant has made such a showing, the burden shifts to the plaintiff to "submit evidentiary facts or materials to rebut the prima facie showing by the defendant" (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 [1986]), but only as to those elements on which the defendant met the burden (see Gillespie v. New York Hosp. Queens, 96 A.D.3d 901 [2d Dept. 2012]). Accordingly, a plaintiff must produce expert testimony regarding the specific acts of malpractice, and not just testimony that alleges "[g]eneral allegations of medical malpractice, merely conclusory and unsupported by competent evidence" (Alvarez v. Prospect Hosp., 68 N.Y.2d at 325). In most instances, the opinion of a qualified expert that the plaintiffs injuries resulted from a deviation from relevant industry or medical standards is sufficient to defeat summary judgment (Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 24). Where the expert's "ultimate assertions are speculative or unsupported by any evidentiary foundation, however, the opinion should be given no probative force and is insufficient to withstand summary judgment" (Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]). The plaintiffs expert must address the specific assertions of the defendant's expert with respect to negligence and causation (see Foster-Sturrup v. Long, 95 A.D.3d 726, 728-729 [1st Dept. 2012]).
Where the parties' conflicting expert opinions are adequately supported by the record, summary judgment must be denied. "Resolution of issues of credibility of expert witnesses and the accuracy of their testimony are matters within the province of the jury" (Frye v. Montefiore Med. Ctr., 70 A.D.3d 15, 25; see also Cruz v. St. Barnabas Hospital, 50 A.D.3d 382 [1st Dept. 2008]).
While a medical expert need not be a specialist in a particular field in order to testify regarding accepted practice in that field (Lopezv, Gramuglia, 133 A.D.3d 424 [1st Dept. 2015]),the expert must provide a foundation that he or she possesses the "requisite personal knowledge" necessary to make a determination on the issues presented (Limmer v. Rosenfeld, 92 A.D.3d 609 [1st Dept. 2Q\2\', see Steinberg v. Lenox Hill Hosp., 148 A.D.3d 612 at 613 [1st Dept. 2017]; internal citations omitted; see also Villani v. Kings Harbor Multicare Center, 190 A.D.3d 534 [1st Dept. 2021]).
FINDINGS
The Court finds that defendants have established entitlement to judgment as a matter of law dismissing the plaintiffs complaint through, inter alia, the expert affirmation of Dr. Siegel, who opined that the defendants made all appropriate and timely decisions during the January 29, 2016 IR procedure and post-surgical care.
In opposition and as previously discussed, plaintiff has failed to raise a triable issue of fact. Plaintiff s expert is not an interventional radiologist, did not perform the interventional radiology procedures at issue herein, and consequently lacks the requisite personal knowledge to opine that the defendants deviated from the standard of care and that said deviation was a proximate cause of plaintiffs injuries. New allegations cannot be countenanced at summary judgment which were never delineated previously, and for which no discovery was ever conducted.
Accordingly, it is
ORDERED that the motion of defendants Divya Sridhar, M.D., Meredith McDermott, M.D. and NYU Langone Medical Center for summary judgment dismissing the complaint of plaintiff, Mujtaba Ahmad Sayar, is granted in its entirety; and it is further
ORDERED that the Clerk enter judgment dismissing the plaintiffs complaint.