Opinion
Index No. 604434/18 Motion Sequence Nos. 03 04
03-06-2020
2020 NY Slip Op 35140(U) v. COLLIN BRATHWAITE, M.D., KAI ZHAO, M.D. and NYU WINTHROP HOSPITAL, Defendants.
Unpublished Opinion
Motion Date 12/11/19
SHORT FORM ORDER
HON. RANDY SUE MARBER JUSTICE
Papers Submitted: Notice of Motion (Seq. 03).....................x
Notice of Motion (Seq. 04)...................x
Affirmation in Opposition....................x
Affirmation in Opposition....................x
Reply Affirmation.............................x
Reply Affirmation.............................x
Upon the foregoing papers, the motion (Seq. 03) by the Defendant, COLLIN BRATHWAITE, M.D. ("Dr. Brathwaite"), seeking an Order, pursuant to CPLR § 3212, granting him summary judgment dismissing the Complaint and any cross-claims asserted against him; and the motion (Seq. 04) by the Defendants, KAI ZHAO, M.D. ("Dr. Zhao") and NYU WINTHROP HOSPITAL ("the Hospital"), seeking an Order, pursuant to CPLR § 3212, granting them summary judgment dismissing the Complaint and any cross-claims asserted against them, are determined as provided herein.
The Plaintiffs in this action seek to recover damages allegedly resulting from, inter alia, the Defendants' medical malpractice. More specifically, the Plaintiffs allege that Dr. Brathwaite, who was the Chairman of the Hospital's Department of Surgery at all pertinent times, negligently performed a laparoscopic reduction of the Plaintiff, SUJEY SOTOMAYOR'S ("the Plaintiff) small bowel intussusception (bowel fold) on April 8, 2017; negligently performed a diagnostic laparoscopy using a Veress needle and laparoscopic repair of her jejunal perforation on April 9, 2017, assisted by Hospital Resident, the Defendant, Dr. Zhao, which resulted in a perforated gallbladder; and, negligently performed a laparoscopic cholecystectomy (gall bladder removal) on April 10, 2017 at the Hospital. It is alleged that the Defendants not only negligently perforated the Plaintiffs gall bladder during surgery on April 9th, but that they failed to timely diagnose it and take prompt corrective action despite, the emanation of bilious material from the operative site. It is further alleged that, as a result thereof and on account of the significant delay in diagnosing her lacerated gallbladder, the Plaintiff had to undergo a cholecystectomy and went into septic and cardiogenic shock. In addition to a plethora of medical complications, the Plaintiff has allegedly consequently suffered memory loss, cognitive impairments and pain and suffering. The Plaintiff, CHRISTIAN PATALLO, has advanced a derivative claim seeking to recover for loss of consortium, society, affection and services. The Defendants all now seek summary judgment dismissing the Complaint as asserted against them.
The facts relevant to the determination of these motions are as follows: The Plaintiffs relevant medical history prior to the subject hospitalization includes gastric bypass surgery in 2006. In May 2013, she was treated at the Hospital by Dr. Brathwaite on an emergency basis for a small bowel intussusception that measured 12 cm in length in the region of the distal anastomosis which was believed to be a result of prior gastric bypass surgery. An intussusception occurs when there is a slipping of a length of intestine into an adjacent portion usually producing an obstruction. An intussusception is known to occur in patients who had gastric bypass surgery. There was also associated small bowel obstruction. Dr. Brathwaite performed a diagnostic laparoscopic resection of the area of the intussusception and revision of the jejunojejunostomy which developed during her prior gastric bypass surgery, and a resection of the small bowel. Pathologic evaluation of the resected segments of the Plaintiffs small bowel revealed necrotic mucosa which was consistent with intussusception.
Approximately one week later, the Plaintiff was readmitted to the Hospital with fever, abdominal pain and rigors, leukocytosis and thrombocytosis. A CT scan showed a high-grade small bowel obstruction. She was also suffering from a pelvic abscess which was drained via interventional radiology. Approximately 500 ml of thick purulent fluid was aspirated from her abdomen and drains were placed to continue drainage. Cultures grew multiple organisms including e. coli, enterococcus, strep Viridans and fusobacterium species, for which the Plaintiff was treated with IV antibiotics. The abscess eventually resolved and the Plaintiffs blood culture showed no organisms. She was discharged after 10 days upon completion of her antibiotic regimen. The infectious disease physician believed that the abscess most likely developed from a residual coalescence of an infected seroma stemming from the prior surgery rather than an anastomotic leak.
The alleged acts of negligence that are the subject of the Plaintiffs Complaint herein are as follows: On April 8, 2017, the Plaintiff presented to the Hospital's Emergency Room complaining of severe abdominal pain. She was afebrile with normal vital signs. A CT scan revealed another episode of intussusception of the small bowel, within the jejunum (the middle section of the small intestine) which originated at the level of the prior small bowel anastomosis. Her small bowel was obstructed in the area of the jejuno-jejunal anastomosis and marked dilated at the proximal end of the intussusception measuring up to 6 cm in maximum transverse dimension. The Plaintiffs April 2017 admission to the Hospital was under the care of the Defendant, Dr. Brathwaite. Emergent surgery was planned.
The preoperative report for April 8, 2017 indicated a preoperative diagnosis of small bowel intussusception and a small bowel obstruction. The Plaintiff was taken to the operating room for a diagnostic laparoscopy, a reduction of the intussusception and plication of the small intestine near the jejunojejunostomy. Plication involves placing sutures in the bowel wall to prevent intussusception from recurring. Dr. Brathwaite performed that surgery assisted by a resident, after which the Plaintiffs small bowel was noted to be intact and viable. Dr. Brathwaite's operative report notes that "the small bowel was run for a short distance and found unremarkable" and "no other abnormalities were seen." Dr. Brathwaite therefore concluded that a resection was not necessary. Instead, the bowel was anchored via sutures. The Plaintiff was then placed on a medical/surgical floor.
Overnight, the Plaintiffs abdominal pain worsened, and she developed progressive tachycardia, hypotension and lactic acidosis. Saline was administered but her vital signs did not respond. The following day, April 9, 2017, the Plaintiff suffered from increased abdominal pain; drop in blood pressure; elevated heart rate (i.e., tachycardia); and lactic acidosis. She was transferred to a surgical intensive care unit that day. A CT scan which was performed on a STAT basis revealed a distended gallbladder, subcutaneous emphysema (chronic obstructive lung disease), ascites (fluid in the abdominal cavity), small bilateral pleural effusion (fluid around the lungs) with compressive atelectasis (collapsed lung). While the expert for Dr. Zhao and the Hospital opines that there was also a small bowel obstruction found in that CT scan (see infra), an examination of the CT scan report does not support that conclusion. Nor do the "Indications" in the operative report support such a conclusion.
Several liters of boluses normal saline were administered without any improvement in the Plaintiffs vital signs. Due to a concern for an intra-abdominal source, the Plaintiff was returned to the operating room for surgical exploration. The preoperative diagnosis for this second surgery included sepsis and peritonitis.
On April 9, 2017, Dr. Brathwaite, assisted by Dr. Zhao, performed a laparoscopic repair of the Plaintiff s jejunal perforation. The section of the operative report denominated as "FINDINGS/PROCEDURE" provides that "[t]here was diffuse peritonitis. Succus entericus was noted to be leaking from the site of the jejunum, which was distal to the area of the repair, but involved an area that was likely part of the intussusception". Under the "OPERATIVE PROCEDURE" section of the report, it notes that "the abdomen was insufflated in the right upper quadrant at one of the trocar sites. The Veress needle was placed at this site. Once the Veress needle was placed, bilious material was seemed [sic] emanate from the site."
The Court notes that, contrary to the Plaintiffs' contention, Dr. Brathwaite did not refer to "succus entericus...leaking from the site of the jejunum" for the very first time at his deposition. Rather, this information was contained in his operative report. To that end, Dr. Brathwaite testified at his deposition that "succus entericus is another word for bilious fluid coming from the intestines" (See Dr. Brathwaite Deposition Testimony at pp. 57-58, annexed to Mot. Seq. 03 as Exhibit "G"). When asked whether bile can be found in any organs other than the liver and the gallbladder, Dr. Brathwaite testified, "[y]es, bile flows from the common bile duct, which is a duct leading from the gallbladder and the liver down into the duodenum, and it goes into the intestines. So in the high - in the proximal areas of the intestines, there's a lot of bile, because it's flowing into that area all of the time." (Id. at p. 71). Dr. Brathwaite explained that the terms "bilious material" and "succus entericus" are used interchangeably..."[s]uccus entericus, bilious fluid...the contents of the intestines, especially the proximal jejunum, there's a lot of bile, so it's bilious fluid." (Id. at p. 72).
With regard to ruling out a possible perforation of the gallbladder if bilious material is noted to be emanating at the time that a Veress needle is placed in the right upper quadrant, Dr. Brathwaite testified that, while it "may be a consideration", it is "not the type of fluid that would come out of the gallbladder" (Id. at p. 75). He further testified that, "[a] gallbladder has a specific golden type of bile...not just bilious fluid... [i]t's like pure golden bile", which is the reason he did not suspect a perforation of the gallbladder at the time of this surgery" (Id.)
Dr. Brathwaite explained that during the second procedure, he repaired a small intestinal perforation approximately 10-15 cm down from the site of the jejunojejunostomy, where the intussusception had occurred. The bowel remained viable, so resecting was not necessary. An abdominal washout was performed with 16 liters of saline to address the diffuse peritonitis.
The operative report for the April 9th surgery indicates that "[t]he abdomen was copiously irrigated in the vicinity" where the perforation was repaired, including "the right upper quadrant, the left upper quadrant and the subhepatic space (under the liver where the gallbladder is), the pelvis on the right and left side as well as the mid abdomen were all copiously irrigated in a step by step fashion" and that "[a]fter noting only clear effluent, and after 16 liters of this irrigation, transfascial sutures were placed" and the operative field was closed (See Dr. Brathwaite Deposition Transcript at pp. 79-80, annexed to Mot. Seq. 03 as Exhibit "G"). The report further provides that "[t]here was no other area of leakage or infarct on examining the bowel."
Dr. Brathwaite testified that he spent a lot of time examining the entire abdomen during the April 9th surgery and "[i]f there was a perforation of the gallbladder at that time, it would have been found". (Id. at p. 77), While the report does not specify that the gallbladder was in fact examined during that procedure, Dr. Brathwaite testified that it would be encompassed in the examination of the "right upper quadrant, the liver, and all of the contents there, and the subhepatic space...[t]he gallbladder is under the liver, because it sits underneath the liver...[t]hat was all examined" (Id. at p. 80). He explained that his examination of the gallbladder was "part and parcel" of that description noted in his operative report (Id.). Dr. Brathwaite planned to take the Plaintiff back to the operating room the following day for further exploration, and she was returned to the Surgical Intensive Care unit.
Overnight, the Plaintiffs status quickly and markedly deteriorated. She developed progressive hypotension for which intravenous pressors were applied. Her pain worsened and could not be relieved with medication. The Plaintiffs status became extremely critical; her tachycardia worsened, she developed metabolic acidosis, severe lactic acidosis, and ultimately went into refractory septic shock. An echocardiogram showed moderate to severe left ventricular systolic dysfunction caused by sepsis. Epinephrine was administered but the Plaintiff showed no improvement. A second echocardiogram showed left ventricular systolic dysfunction with global hypokinesis and an ejection fraction between 25% and 30%. Beta-blockers were administered, Levophed and Epinephrine vasopressors were added, and medications were adjusted. The Plaintiffs lactic acid was significantly elevated at 7.2, suggesting ischemia. The Plaintiffs chart shortly before she was taken into surgery notes that she was in extremely critical condition and unstable with worsening profound metabolic acidosis and lactic academia.
As planned, further exploratory surgery was performed mid-day on April 10th by Dr. Brathwaite assisted by a resident. Dr. Brathwaite testified that the third exploratory surgery would have been performed whether she had been fine up to that point or whether there was some sort of indication for surgery (See Dr. Brathwaite Deposition Testimony at pp. 90-91, annexed to Mot. Seq. 03 as Exhibit "G"). The "Indications" portion of the operative report for April 10, 2017 notes that the Plaintiff "was being brought back to the operating room as a planned reoperation, after having sustained a bowel perforation 24 hours earlier." (Id. at p. 93). It further provides, "[although this had been planned, it was noted that the patient was in septic shock with elevated serum lactate and evidence of DIC [disseminated intravascular coagulation]" (Id. at p. 94). According to Dr. Brathwaite, the Plaintiff was ultimately not brought back in response to her going into septic shock, but rather, as a "planned reoperation, in conjunction with, an association of that, that she was still in septic shock." (Id.). The preoperative diagnosis continued to include diffuse peritonitis and septic shock. When Dr. Brathwaite performed a diagnostic laparoscope the prior bowel repair remained intact, but two perforations of the Plaintiffs gallbladder were discovered. Dr. Brathwaite performed a laparoscopic cholecystectomy (gallbladder removal) and another washout and drainage of the Plaintiffs abdomen. At the end of the procedure, Blake drains were placed. The Plaintiff was sent to the Surgical Intensive Care unit where she remained intubated and in continuing septic shock. The postoperative report reflects that "upon lifting the patient's liver, greenish bile was noted to drain from the area." There were also findings of "new fibrinous exudate of material along with turbid bilious fluid." The report also indicated that "there were two small perforations noted in the gallbladder on the body. One appeared to have a hematoma around it." The pathology report indicated that the Plaintiffs gallbladder showed chronic cholecystitis and cholesterolosis and contained green-black tenacious bile with no stones.
While the Plaintiffs hemodynamic status improved by April 13th, and she was able to be removed from all pressors, a large ecchymotic area was observed on her right flank. Tests revealed that she had a large abdominal fluid collection/infected abscess that required multiple radiological drainage procedures. Despite topical therapy, her right flank surgical wound progressed to necrosis requiring the need to perform four operative debridement procedures. On April 17th and April 20th debridement of necrotic abdominal wall tissue at right flank skin and subcutaneous tissues 600 cm was performed to three areas; on May 3rd, debridement of right flank skin and subcutaneous tissues 600 cm to three areas was performed; and, on May 26th, debridement of right flank skin and subcutaneous tissues 325 cm and split-thickness skin graft was performed. Furthermore, the Plaintiff developed peritonitis, biloma, severe intra-abdominal sepsis, acute respiratory failure with hypoxia, septic shock, cardiomyopathy, infections, toxic encephalopathy, acidosis, inotropic support and disseminated intravascular coagulation. Several surgical procedures were required and intensive care continued. The Plaintiff was not extubated until April 23rd and was not transferred out of the intensive care unit until April 26th.
She was ultimately discharged on May 5, 2017, but again, extensive wound care was necessary as was wound vac therapy, extensive physical, occupational, speech and language therapy and iron infusions. The Plaintiff suffered scarring and disfigurement of her right abdominal wall.
On October 2, 2017, the Plaintiff developed a right upper quadrant incisional hernia and right lower quadrant ventral hernia. In fact, a note by Dr. Brathwaite ten days post-surgery of April 10th notes that the Plaintiff reported right upper quadrant incisional discomfort exacerbated with movement. Her cognitive impairments necessitated a neurological workup and the assessment was that it was a possible effect from the metabolic/septic encephalopathy.
Legal Analysis:
It is well established that a party moving for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853 [1985]). Once the moving party has made a prima facie showing, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form which establishes the existence of a material issue of fact (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]; Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]). A defendant seeking summary judgment bears the burden of establishing its prima facie entitlement to judgment as a matter of law by affirmatively demonstrating the merit of its defense, rather than merely by pointing out gaps in the plaintiffs case (Alizio v Feldman, 82 A.D.3d 804 [2d Dept 2011 ]; Nationwide Prop. Cas. v Nestor, 6 A.D.3d 409, 410 [2d Dept 2004]). Where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers (Lee v Second Ave, Vil Partners, 100 A.D.3d 601 [2d Dept 2012], citing Winegrad v New York Univ. Med. Center, supra at 852). The motion court is required to accept the opponents' contentions as true and resolve all inferences in the manner most favorable to them (Giraldo v Twins Ambulette Serv., Inc., 96 A.D.3d 903 [2d Dept 2012]). Further, “[t]he courts function on a motion for summary judgment is 'to determine whether material factual issues exist, not to resolve such issues (citations omitted)'" (Ruiz v Griffin, 71 A.D.3d 1112, 1115 [2d Dept 2010], quoting Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]).
"The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury (quotations and citations omitted)" (Gentile v Malihan, __ A.D.3d __, 2020 WL 356162 at * 1 [2d Dept 2020]). "In a medical malpractice action, a defendant moving for summary judgment has 'the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby" (citations omitted) (Bacalan v St. Vincents Catholic Med. Centers of New York, __ A.D.3d __, 2020 WL 465525 at *2 [2d Dept 2020]). "In order to sustain this burden, the defendant must address and rebut any specific allegations of malpractice set forth in the plaintiffs bill of particulars" (citations omitted) (Bacalan v St. Vincents Catholic Med. Centers of New York, 2020 WL 465525 at *2; see also, Bendel v Rajpal, 101 A.D.3d 662, 663 [2d Dept 2012], quoting Wall v Flushing Hosp. Med. Ctr., 78 A.D.3d 1043, 1045 [2d Dept 2010]). "The failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Oliver v New York City Health and Hosps. Corp., 178 A.D.3d 1057 [2d Dept 2019]).
"Once the health care provider has made such a showing, the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but only as to the elements on which the defendant met the prima facie burden" (Schmitt v Medford Kidney Ctr., 121 A.D.3d 1088, 1088 [2d Dept 2014], citing Gillespie v New York Hosp. Queens, 96 A.D.3d 901, 092 [2d Dept 2012]; Stukas v. Streiter, 83 A.D.3d 18, 24 [2d Dept 2011]). The plaintiff must meet that burden "through the submission of evidentiary facts or materials" (Schmitt v Medford Kidney Ctr, supra at 1088-1089, citing Zapata v. Buitriago, 107 A.D.3d 977 [2d Dept 2013]; Stukas v Streiter, supra at 24; see also, Gentile v Malihan, 2020 WL 356162 at * 1). "[G]eneral allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant's motion for summary judgment (citations omitted)" (Bendel v Rajpal, supra, at p 189, quoting Bezerman v Bailine, 95 A.D.3d 1153, 1154 [2d Dept 2012]; Savage v Quinn, 91 A.D.3d 748, 749 [2d Dept 2012]). "An expert's opinion which...fails to set forth his or her rationale, methodology and reasons therefor fails to establish an issue of fact (Rivers v Birnbaum, 102 A.D.3d 26, 44 [2d Dept 2012]; Dunn v Khan, 62 A.D.3d 828, 829-830 [2d Dept 2009]). "In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant's experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record" (quotations and citations omitted) (Schwartz v Partridge, __ A.D.3d__, 2020 WL 355966 at * 1 [2d Dept 2020]). A plaintiffs expert's statement which "fail[s] to respond to relevant issues raised by the defendants' experts" does not suffice to establish the existence of a material issue of fact (Ahmed v Pannone, 116 A.D.3d 802 [2d Dept 2014]; see also, Brinkley v. Nassau Health Care Corp., 120 A.D.3d 1287 [2d Dept 2014]). And, "[a]n expert opinion that is contradicted by the record cannot defeat summary judgment (quotations and citations omitted)" (Schwartz v Partiridge, 2020 WL 355966 at *1; Lowe v Japal, 170 A.D.3d 702, 703 [2d Dept 2019]). A plaintiff cannot, for the first time in opposition to a motion for summary judgment, raise a new or materially different theory of recovery against a party from those pleaded in the complaint and the bill of particulars (quotations and citations omitted) (Bacalan v St. Vincents Catholic Med. Centers of New York, 2020 WL 465525 at *3; see also, Palka v. Village o/Ossimng, 120 A.D.3d 641 [2d Dept 2014]; see also, Golubov v. Wolfson, 22 A.D.3d 635 [2d Dept. 2005]).
Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions since such conflicting expert opinions will raise credibility issues which can only be resolved by a jury. However, expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact" (quotations and citations omitted) (Lowe v Japal, 170 A.D.3d at 702).
In support of his motion, Dr. Brathwaite proffers the expert affirmation of John Ortolani, M.D., a physician board certified in surgery. Having reviewed the pertinent medical and legal records, he opines to a reasonable degree of medical certainty as follows:
Dr. Ortolani opines that Dr. Brathwaite did not depart from accepted standards of medical practice in his care and treatment of the Plaintiff and that none of her injuries were caused, in whole or in part, by any alleged departures from standards of care (See Dr. Ortolani Expert Affirmation at p. 5, annexed to Mot. Seq. 03 as Exhibit "M").
Dr. Ortolani opines that during the surgery performed on April 8th, Dr. Brathwaite exercised appropriate judgment by not resecting the portion of jejunum that telescoped into its adjacent segment, as the segment was still viable after the intussusception was reduced, especially since the plaintiff had already had a segment of her jejunum removed during the prior intussusception surgery in 2013. He opines that Dr. Brathwaite did not cause the perforation of the jejunum that was discovered in surgery the next day. Rather, Dr. Ortolani opines that following the surgery on April 8th, "and due in part to the intussuscepted portion of bowel no longer being encased in its adjacent segment, a perforation most likely developed, causing the symptoms which prompted the patient to be brought back to the operating room on April 9." (Id. at p. 5), Dr. Ortolani similarly opines that Dr. Brathwaite was not negligent in any way with regard to his performance of a diagnostic laparoscopy and repair of jejunal perforation on April 9th. It is opined that Dr. Brathwaite exercised good medical judgment by returning the Plaintiff to the operating room that day for exploratory surgery once the Plaintiff became tachycardic and hypotensive. He opines that Dr. Brathwaite properly repaired the jejunal perforation, "which more than likely developed following the conclusion of the April 8 surgery". Dr. Ortolani notes that the operative report of that day reflects that Dr. Brathwaite meticulously irrigated and inspected different areas of the plaintiffs abdomen during that surgery, including the right upper quadrant where the gallbladder is located, and observed no injury to the gallbladder during his inspection. Dr. Orotolani thus concludes that this evidence indicates that the gallbladder became perforated "at some point between surgery on April 9 and the planned re-exploration on April 10." As for the bilious fluid Dr. Brathwaite observed coming from the Plaintiffs trocar which is noted in his operative report, Dr. Ortolani opines that it was most likely not from a perforated gallbladder, but from the jejunal perforation which was addressed during that surgery since "bile is secreted from the gallbladder into the intestines, including the jejunum." (Id. at p. 6).
Dr. Ortolani notes that the pathology report reflects that the Plaintiffs gallbladder was inflamed with evidence of chronic cholecystitis which, he opines, indicates that the Plaintiffs gallbladder was most likely chronically inflamed before these surgeries, with the perforations resulting from that chronic inflammation rather than inappropriate manipulation of surgical instruments. That is, according to Dr. Ortolani, Dr. Brathwaite did not cause the perforation of the gallbladder. Nor does he see any indication in any medical records that reflect that Dr. Brathwaite improperly used the Veress needle to insufflate the Plaintiffs abdomen with carbon dioxide gas during the laparoscopy. He opines that Dr. Brathwaite's post-surgical plan on April 9th to return the Plaintiff to the operating room the next day for further exploratory surgery was good medical judgment.
Dr. Ortolani also opines that Dr. Brathwaite was not negligent in his surgery performed on April 1 Oth, either. He notes that "it was during this procedure that Dr. Brathwaite discovered two perforations of the gallbladder, and he was able to remove the gallbladder without complication". (Id. at p. 6).
Finally, as to proximate cause, Dr. Ortolani opines that the Plaintiff did not suffer any injuries as a result of Dr. Brathwaite's care. He opines that, given the condition of the Plaintiffs gallbladder, its removal was most likely needed regardless of the care provided by Dr. Brathwaite. It is further opined that, repairing perforations in the gallbladder, regardless of when found, would not have been possible, as the wall of the gallbladder is relatively weak and does not hold sutures well." (Id. at p. 7). Dr. Ortolani also opines that the perforation of the gallbladder also most likely did not make plaintiff any sicker, as she already had peritonitis and sepsis from her jejunal perforation, which was timely and properly diagnosed and treated by Dr. Brathwaite during the April 9 surgery, and developed without negligence on the part of Dr. Brathwaite." (Id.).
The Defendant Dr. Brathwaite has established, via the expert affirmation of Dr. Ortolani, that his care and treatment of the Plaintiff was within accepted standards of medical care, and that none of his acts or omissions proximately caused the alleged injuries, thereby establishing his prima facie entitlement to summary judgment. The burden thus shifts to the Plaintiff to establish the existence of material issues of fact with respect to both of those issues.
In opposition, the Plaintiff has submitted the expert affidavit of a physician board certified in general surgery who specializes in bariatric surgery. Having reviewed the pertinent medical and legal records, s/he opines to a reasonable degree of medical certainty, as follows:
While the identity of the Plaintiffs expert has not been disclosed to defense counsel, an unredacted copy of the expert report has been submitted to this Court.
The Plaintiffs expert opines that, "it is obvious she sustained a puncture injury (from the Veress needle) to her gallbladder during the April 9, 2017 surgery." S/he explains "[e]ven though bile was noted in the Veress needle (which was inserted in the right upper quadrant), an injury to the gallbladder was not identified nor ruled out by Dr. Brathwaite or any member of the operative team" that day, which, s/he opines, was a clear and blatant violation of the standard of care, S/he opines that as a result thereof, the Plaintiffs gallbladder continually leaked bile into her abdomen from the evening of April 9th until the afternoon of April 10th, and as a result, she suffered intra-abdominal sepsis and profound septic shock. In, addition, she developed infected necrosis of her right flank subcutaneous tissues which required massive debridement and proved to be extremely disfiguring. As for Dr. Brathwaite's deposition testimony, s/he disagrees that bile from the gallbladder would be "golden" in color and notes that in his operative report of the April 10th, Dr. Brathwaite in fact stated that the bile from the Plaintiffs gallbladder was "greenish". This is confirmed by the pathology report which reflects that the bile in her gallbladder was green-blackish tenacious bile with no calculi (stones). The Plaintiffs expert further notes that the operative report reflects that one of the perforations had evidence of a hematoma which is evidence of an operative trauma that would be attributable to an inappropriate manipulation of the Veress needle thereby causing a perforation to the gallbladder. S/he notes there was immediate evidence of bile emanating from this site. Based on these facts, s/he disputes the defense expert's contention that the Plaintiffs gallbladder perforations were spontaneous and purely a result of chronic inflammation.
The Plaintiffs expert also disputes Dr. Ortolani's conclusion that the Plaintiff did not sustain any damages even assuming Dr. Brathwaite was negligent in his care and treatment of her. S/he points to all of the post-operative complications and lengthy treatment endured by the Plaintiff, along with the permanent disfigurement of her abdomen, S/he also rejects Dr. Brathwaite's testimony that he inspected the Plaintiffs gallbladder during the April 9th surgery. S/he notes that Dr. Brathwaite's operative report does not specify that the gallbladder was examined; rather, it reflects that intraoperative irrigation and an "examination] of the bowel" were performed, which the Plaintiffs expert opines does not equate with an examination of organs, structures and tissues.
The Plaintiffs expert concludes that the Defendants deviated from medical standards by failing to timely diagnose the Plaintiffs perforated gallbladder during the April 9th surgery, intervene and/or treat it. S/he opines that more than likely, the Plaintiffs severe critical condition, prolonged need for intubation, wound necrosis, extensive wound care, infections, acidosis, coma, need for inotropic support, disseminated intravascular coagulation, need for extensive physical, occupational, speech and language therapy, cognitive symptoms, long term intravenous iron infusions, surgical repair of incisional hernia and multiple disfiguring surgeries would have been avoided but for Dr. Brathwaite's negligence.
The Court finds that, via the affidavit of their expert, the Plaintiffs have clearly established issues of fact regarding whether Dr. Brathwaite was negligent in his care and treatment of the Plaintiff and the ramifications resulting therefrom, thereby warranting denial of Dr. Brathwaite's motion for summary judgment.
Turning next to the motion by Dr. Zhao and the Hospital, "[i]n general, a hospital may not be held vicariously liable for the malpractice of a private attending physician who is not an employee (quotations and citations omitted)" (Dupree v Westchester County Health Care Corp., 164 A.D.3d 1211, 1213 [2d Dept 2018], quoting Toth v Bloshinsky, 39 A.D.3d 848, 850 [2d Dept 2007]). "Therefore, when hospital employees, such as resident physicians and nurses, have participated in the treatment of a patient, the hospital may not be held vicariously liable for resulting injuries where the hospital employees have merely carried out the private attending physician's orders (citations omitted)" (Dupree v Westchester County Health Care Corp., 164 A.D.3d at 1213). "These rules shielding a hospital from liability do not apply when: (1) the staff follows orders despite knowing that the doctor's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders" (internal quotations omitted) (Dupree v Westchester County Health Care Corp., 164 A.D.3d atl213, quoting Doria v Benisch, 130 A.D.3d 777, 777-778 [2d Dept 2015], quoting Toth v Community Hosp. at Glen Cove, 22 N.Y.2d 255, 265 fn. 3 [1968]); (2) the hospital's employees have committed independent acts of negligence; or (3) the words or conduct of the hospital give rise to the appearance and belief that the physician possesses the authority to act on behalf of the hospital" (citations omitted) (Dupree v Westchester County Health Care Corp., 164 A.D.3d atl213). "An exception to this general rule therefore exists where a plaintiff seeks to hold a hospital vicariously liable for the alleged malpractice of an attending physician who is not its employee where a patient comes to the emergency room seeking treatment from the hospital and not from a particular physician of the patient's choosing" (quotations and citations omitted) (Fuessel v Chin__, A.D.3d__, 2020 WL 356164at *2). "Thus, in order to establish its entitlement to judgment as a matter of law defeating a claim of vicarious liability, a hospital must demonstrate that the physician alleged to have committed the malpractice was an independent contractor and not a hospital employee and that an exception to the general rule [does] not apply" (internal citations and quotations omitted) (Dupree v Westchester County Health Care Corp., 164 A.D.3d atl213, quoting Rizzo v Staten Is. Univ. Hosp., 29 A.D.3d 668, 668-669 [2d Dept 2006]).
Dr. Zhao and the Hospital have submitted the expert affirmation of Asutosh Kaul, M.D., a board certified surgeon. Having reviewed the pertinent medical and legal records, he opines to a reasonable degree of medical certainty, as follows:
Dr. Kaul has explained how an attending physician formulates their patient's treatment plan and how the Hospital staff is responsible for implementing and following it. He notes that Dr. Brathwaite was the Plaintiffs attending doctorwho made all of the decisions regarding her care including the three surgeries and opines that none of his directives were clearly contraindicated or called into question their propriety by the Hospital staff. Dr. Kaul also opines that the Hospital cannot be held vicariously liable for Dr. Brathwaite since he was the Plaintiffs private attending physician. On those grounds, he concludes that the Complaint should be dismissed as against Dr. Zhao and the Hospital.
Furthermore, to the extent that the Hospital may be held vicariously liable for Dr. Brathwaite's care of the Plaintiff, Dr. Kaul opines that his care and treatment conformed to the applicable medical standards. He opines that the surgical care provided by Dr. Brathwaite on April 8th conformed with the applicable standards. Dr. Kaul opines that surgery was the viable option on April 8th as the Plaintiffs distal bowel folded into her proximal bowel at or near the jejunojejunostomy. If left untreated, the Plaintiff could have developed an ischemic bowel, bowel perforation and/or leakage of the entire contents of her bowel into her abdominal cavity leading to sepsis and/or death. He opines that the surgery was necessary. He believes that the Plaintiffs right upper quadrant was the proper place to insert the Veress needle given the Plaintiff s physical condition including her prior surgeries and her suspected adhesions and bowel loops. He also agrees that there was no need for a bowel resection since the Plaintiffs small bowel remained viable.
Dr. Kaul also opines that the surgery performed by Dr. Brathwaite with Dr. Zhao assisting on April 9th conformed to the applicable medical standards. He opines that a CT scan of her "abdomen and pelvis revealed a recurring small bowel intussusception within the jejunum and an associated proximal small bowel obstruction" [emphasis supplied]. Thus, he opines that it was medically appropriate to perform a diagnostic laparoscopy and when that revealed a jejunal perforation, Dr. Brathwaite properly performed surgery to repair it and proceeded with washing out the Plaintiffs abdomen. He opines that during the April 9th surgery, the Plaintiffs "gallbladder was appropriately inspected and there was no evidence to support the conclusion [it] was damaged or perforated." In support of that conclusion, he sites to the operative report insofar as it indicates that irrigation and examination of the Plaintiffs upper right quadrant of the abdomen was done. He opines that the "leaking biliary fluid had emanated from the [Plaintiffs] perforated bowel and not from a perforated gallbladder" [emphasis supplied].
Dr. Kaul further opines that Dr. Brathwaite's removal of the Plaintiffs gallbladder during the April 10th surgery was appropriate. He opines that gallbladder perforations "can occur from different mechanisms, including a mechanical trauma during surgery or ischemia from a bowel obstruction resulting in a lack of blood flow to the organs" [emphasis supplied]. He continues, "[i]n either case, a perforation is a known complication of a bowel surgery and is not, in and of itself, evidence of malpractice."
Initially, the Court notes that Dr. KauPs conclusion that the Plaintiffs "gallbladder was appropriately inspected and there was no evidence to support the conclusion [it] was damaged or perforated" is supported only to the extent that such a conclusion could be drawn from Dr. Brathwaite's deposition testimony - not the medical records. In fact, there is no support in the medical records for such conclusion. Likewise unsupported by the medical records is Dr. KauPs conclusion that the perforation of the Plaintiffs gallbladder could have been the result of her bowel obstruction which caused a lack of blood flow to the gallbladder. Contrary to Dr. KauPs opinion, review of the Plaintiffs CT scan report of April 9th does not show a bowel obstruction. Nor do the indications for surgery listed in the operative report.
Notwithstanding the foregoing, Dr. Kaul has established that Dr. Zhao, as the resident doctor, only assisted Dr. Brathwaite during the April 9th surgery. The evidence is clear that Dr. Zhao simply held a camera as directed by Dr. Brathwaite. Dr. Zhao did not exercise any independent judgment in his interaction with the Plaintiff while assisting Dr. Brathwaite during said surgery. Accordingly, a prima facie showing has been made establishing that no act or omission on the part of Dr. Zhao deviated from the applicable medical standards or contributed to the Plaintiffs injuries. Nor is there evidence that any of Dr. Brathwaite's acts or omissions during the April 9th surgery were contraindicated so as to have prompted Dr. Zhao or any Hospital staff to take action. These moving Defendants have also established that the Hospital cannot be held vicariously liable for Dr. Zhao's alleged negligent acts.
However, the same conclusion cannot be drawn regarding whether the Hospital can be vicariously liable for the acts of Dr. Brathwaite. While the Plaintiff was admitted to the Hospital under the care of her private attending physician, Dr. Brathwaite, her presentment to the Hospital was for emergency medical care. Furthermore, Dr. Brathwaite was a salaried employee of the Hospital, serving as its Chief of Surgery. Based on the entirety of the record presented, the Hospital has failed to demonstrate that it cannot be held vicariously liable for Dr. Brathwaite's actions based on his employment relationship with it (Fouse v Grendell, 17 Misc.3d 1107(A) at 6-7 [Sup Ct Nassau County 2007]). Moreover, issues of fact regarding whether Dr. Brathwaite deviated from accepted medical standards in his care and treatment of the Plaintiff and whether such deviation proximately caused the Plaintiffs injuries plainly exist.
Based on the foregoing, the Hospital's motion for summary judgment dismissing the Complaint as asserted against it is denied in light of its possible vicarious liability for Dr. Brathwaite's alleged negligence. Since Dr. Zhao has established his prima facie entitlement to summary judgment dismissing the complaint against him (Samer v Desai, __A.D.3d__, 2020 WL 2162282 [2d Dept Jan. 15, 2020]), the burden shifts to the Plaintiff to establish the existence of a material issue of fact.
The Plaintiffs have not opposed Dr. Zhao's motion.
While the sufficiency of the Plaintiffs opposition need not be considered with respect to the Hospital's motion, it will nevertheless be addressed. The Plaintiffs have submitted the affidavit of a board certified general surgeon who specialized in bariatric surgery in opposition to the Hospital's motion. Having reviewed the pertinent medical and legal records, s/he opines to a reasonable degree of medical certainty as follows:
The Plaintiffs expert opines with respect to Dr. Brathwaite's conduct in the same fashion as the expert did in opposition to Dr. Brathwaite's motion. In addition, s/he emphasizes that the Plaintiffs care by Dr. Brathwaite emanated from her presentation at the emergency room of the Hospital and that he was an employee of the Hospital at all pertinent times. On those grounds, the Plaintiff s expert opines that the Hospital is vicariously liable for Dr. Brathwaite's alleged negligent acts. S/he specifically rejects Dr. Kaul's conclusion that the perforation of the Plaintiffs gallbladder could have come from ischemia which resulted from the bowel obstruction causing a lack of blood flow to the surrounding organs. S/he notes that the Plaintiffs CT scan of April 9th before the surgery was performed did not show a bowel obstruction or bowel ischemia, and therefore, that could not have been the cause of her perforated gallbladder. This leaves the Veress needle insertion as the sole explanation for the perforations. Further, s/he notes that the needle had bile emanating from it. Assuming, arguendo, that the Hospital did establish that Dr. Brathwaite was not negligent in his care and treatment of the Plaintiff and/or that his care and treatment did not proximately cause the alleged injuries, the Plaintiffs expert has clearly established the existence of triable issues of fact with respect to both issues.
Accordingly, it is hereby
ORDERED, that the motion (Seq. 03) by the Defendant, COLLIN BRATHWAITE, M.D., seeking an Order, pursuant to CPLR § 3212, granting him summary judgment dismissing the Complaint and any cross-claims asserted against him, is DENIED; and it is further
ORDERED, that the branch of the motion (Seq. 04) by the Defendants, KAI ZHAO, M.D. and NYU WINTHROP HOSPITAL, seeking an Order, pursuant to CPLR § 3212, granting KAI ZHAO, M, D. summary judgment in his favor, is GRANTED, and the Complaint, together with any cross-claims, is DISMISSED as asserted against KAI ZHAO, M.D., only; and it is further
ORDERED, that the branch of the motion (Seq. 04) by the Defendants, KAI ZHAO, M.D. and NYU WINTHROP HOSPITAL, seeking an Order, pursuant to CPLR § 3212, granted NYU WINTHROP HOSPITAL summary judgment in its favor, is DENIED; and it is further
ORDERED, that the remaining parties are reminded to appear for Trial in the Central Jury part of this courthouse on March 19, 2020 at 9:30 a.m.
This constitutes the decision and Order of this Court.