Opinion
101476/2009.
June 22, 2011.
DECISION AND ORDER
The following papers numbered 1 through 14 were considered on these motions this 26th day of April, 2011:
[005]Notice of Motion (Defendant Dr. Emmer) (Affirmations in Support) .................... 1 [006]Notice of Motion (Defendant Dr. Borges) (Affirmation in Support) .................... 2 [007]Notice of Motion (Defendant RUMC) (Affirmation in Support) .......................... 3 [008]Notice of Motion (Defendant Dr. Grecco) (Affirmation in Support) .................... 4 [009]Notice of Motion (Defendant Drs. Adrian Duvvuri) (Affirmations in Support) .... 5 Affirmation in Opposition to Dr. Borges Motion (Plaintiff) .............................. 6 Affirmation in Opposition to RUMC's Motion (Plaintiff) .................................. 7 Affirmation in Opposition to Dr. Grecco's Motion (Plaintiff) ............................ 8 Affirmation in Opposition to Dr. Adrian's Motion (Plaintiff) ............................ 9 Reply Affirmation (Dr. Emmer) ........................................................... 10 Reply Affirmation (Dr. Borges) .......................................................... 11 Reply Affirmation (RUMC) ................................................................ 12 Reply Affirmation (Dr. Grecco) .......................................................... 13 Reply Affirmation (Dr. Adrian Dr. Duvvuri) ....................................... 14This action was commenced by the plaintiff, Michelle Fernino, on or about June 16, 2009. The complaint alleges that the defendants failed to, inter alia, timely diagnose and treat the plaintiff Michelle Fernino's pulmonary embolism and failed to monitor her coumadin treatment resulting in, inter alia, permanent cardiovascular and pulmonary injury along with the loss of her fetus. Issue was joined by defendants and the case is presently on the trial calendar. The present motions, made separately by defendants Drs. Emmer, Borges, Grecco, Adrian, Duvvuri and Richmond University Medical Center (RUMC), are now seeking summary judgment respectively against the plaintiff, contending that they each did not deviate from good and accepted medical standards and practice in the treatment rendered to plaintiff, Michelle Fernino.
The Court initially notes that at oral argument plaintiff's counsel acknowledged no opposition to Dr. Emmer and Dr. Duvvuri's motions. In addition, subsequent to oral argument, on or about June 7, 2011, plaintiff voluntarily discontinued the action as against Dr. Emmer and the stipulation was So Ordered by this Court on June 7, 2011. This renders motion 005 by Dr. Louis Emmer moot. In addition, the portion of motion 009 which seeks summary judgment in favor of Dr. Duvvuri is hereby granted without opposition.
The claims in this lawsuit arose on or about March 22, 2007, when plaintiff presented to her primary care physician, defendant Dr. Nicole Borges with complaints of blacking out, chest pain, dizziness and shortness of breath. Dr. Borges, after reviewing plaintiff's symptoms and tests, determined that plaintiff may be suffering from a pulmonary embolism and called an ambulance to transport Ms. Fernino to the hospital. It is undisputed that Dr. Borges sent plaintiff to the hospital for tests to rule out a pulmonary embolism.
Upon presenting to Richmond University Medical Center [hereinafter "RUMC"] the plaintiff was seen by defendant Dr. Edward Adrian who ordered a chest x-ray and an EKG for the plaintiff, both of which were negative/normal. The plaintiff was discharged that evening with instructions to follow up with her primary care physician. Michelle Fernino presented back to Dr. Borges on March 28, 2007, six days later, with complaints that she was still experiencing chest pain, shortness of breath and dizziness but felt a slight reduction from the initial visit. Dr. Borges noted that plaintiff did not undergo a spiral CT at the hospital and instructed plaintiff to undergo a spiral CT "ASAP". The plaintiff presented at defendant RUMC for a spiral CT four days later on April 1, 2007, where she was immediately admitted after the test revealed a pulmonary embolism. Upon admission, plaintiff Michelle Fernino underwent a pulmonary evaluation where she was instructed to discontinue oral contraceptive pills and began a course of treatment on IV Heparin and Coumadin prescribed by Dr. Bergman at RUMC. She was discharged on April 5, 2007, on coumadin, and instructed to follow up with her primary care physician.
Plaintiff followed up with Dr. Borges the following day, on April 6, 2007, with marked improvement in dizziness and chest pain. Dr. Borges notes that plaintiff was on coumadin. Thereafter, the plaintiff presented to RUMC "at least ten times in 2007" with various complaints, several related to her pulmonary embolism. The plaintiff was also examined by former defendant Dr. Sambandam for a pulmonology evaluation and Drs. Duvvuri and Isber for cardiac evaluations.
See Plaintiff's Affirmation in Opposition pg 4.
On December 28, 2007, the plaintiff was transported by ambulance to RUMC with complaints of loss of consciousness, weakness and dizziness. During her emergency room evaluation it was revealed that plaintiff was pregnant. She was admitted and diagnosed with syncope, pregnancy and pulmonary embolism; coumadin was discontinued. After a negative cardiac work-up Michelle Fernino was released the following day, December 29, 2007.
Plaintiff thereafter presented to defendant Dr. Michael Grecco, her obstetrician/gynecologist since 2006, on or about January 2, 2008, where a sonogram, among other tests were performed to confirm plaintiff's pregnancy. Dr. Grecco saw plaintiff again on January 9, 2008, for more tests where it was confirmed that no fetal heart rate was present. Plaintiff Michelle Fernino was diagnosed with a missed abortion and was scheduled for dilation and curettage procedure. On or about January 11, 2008, Dr. Grecco performed the dilation and curettage procedure at Staten Island University Hospital.
Presently, plaintiff Michelle Fernino claims, inter alia, that defendants failed to timely diagnose her pulmonary embolism and failed to properly warn her of the dangers of becoming pregnant while on coumadin. The defendants are each moving for summary judgment.
A "proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006];Zuckerman v. City of New York, 49 NY2d 557). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).
In a medical malpractice action, "[o]n a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). "In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury" (Rebozo v. Wilen, 41 AD3d at 458-59;Rosenman v. Shrestha, 48 AD3d 781, 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]).
I. Defendant Dr. Borges Motion for Summary Judgment [Motion 006]
The court initially notes that at oral argument plaintiff's counsel indicated no opposition to the portion of Dr. Borges motion which seeks summary judgment with respect to claims of failure to diagnose the pulmonary embolism and as such those claims against Dr. Nicole Borges are dismissed without opposition.
The defendant Dr. Nicole Borges has met her burden establishing a prima facie entitlement to summary judgment as a matter of law that she did not deviate from accepted medical standards and practice in her treatment of plaintiff Michelle Fernino (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). There is no dispute that defendant Dr. Borges did not prescribe coumadin to the plaintiff. Further undisputed is the fact that Dr. Borges in fact insisted that plaintiff discontinue the use of coumadin in May 2007 when plaintiff had indicated a missed period. Dr. Borges additionally provided the medical affirmation from Dr. Charles L. Bardes, who opined that Dr. Borges was well within accepted medical practice and standards in the treatment of plaintiff. Dr. Bardes specifically opined that responsibility to explain the risks and benefits of a drug falls upon the ordering physician. Further, Dr. Borges' instruction to the plaintiff to discontinue coumadin when she indicated she had missed her period was well within good and accepted medical standards and practice.
In opposition, the plaintiff has failed to raise any triable issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320; Stukas v. Streiter, 83 AD3d 18, 23 [2d Dept., 2011]). The evidence presented to this court clearly indicates that Dr. Borges acted within good and accepted medical standards in warning plaintiff about becoming pregnant while on coumadin. The plaintiff's contentions that she was never informed about the risks of coumadin is contraindicated by the fact that Dr. Borges in fact instructed her to discontinue use when she indicated a missed period. The redacted medical affirmation provided by plaintiff in opposition is suggestive with respect to defendant Dr. Borges' alleged duty to continuously counsel and speculative with respect to any causal connections between the alleged deviation and plaintiff's injuries. As a result, the complaint is dismissed as against defendant Dr. Borges (Simmons v. Brooklyn Hosp. Ctr., 74 AD3d 1174, 1178 [2d Dept., 2010];Gargiulo v. Geiss, 40 AD3d 811, 812 [2d Dept., 2007] [finding plaintiff failed to raise a triable issue of fact where the expert affirmation was conclusory]).
II. RUMC's Motion for Summary Judgment [Motion 007]
The court reiterates that claims against RUMC based upon vicarious liability for Dr. Emmer are hereby dismissed as the plaintiff has voluntarily discontinued the action against Dr. Emmer.
"Generally, a hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee" (Quezada v. O'Reilly-Green, 24 AD3d 744, 746 [2d Dept. 2005]). Nor, can it be held liable "where its employees follow the direction of the attending physician, unless that physician's orders `are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'" (Garson v. Beth Israel Medical Ctr., 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky, 39 AD3d 848, 850 [2d Dept. 2007]; Cerny v. Williams, 32 AD3d 881, 883 [2d Dept. 2006]; Welch v. Scheinfeld, 21 AD3d 802, 807 [1st Dept. 2005]).
The defendant RUMC has established its entitlement to summary judgment by submitting evidence in admissible form that it and/or its employees acted within the scope of good and accepted medical practice in its treatment to plaintiff Michelle Fernino (id.). Defendant RUMC submitted the expert affirmation of Dr. Ian H. Newmark, who opined that Dr. Adrian did not deviate from accepted medical practice, considering the plaintiff's other symptoms and comorbidities, in not performing a spiral CT to rule out a pulmonary embolism on March 22, 2007. Dr. Newmark also opines that Dr. Bergman did inform the plaintiff of the risks of becoming pregnant while on coumadin and that there is no evidence that coumadin was the cause of the plaintiff's injuries, namely, the loss of her fetus.
In opposition the plaintiff has successfully raised triable issues of fact (Rebozo v. Wilen, 41 AD3d at 458-59; Rosenman v. Shrestha, 48 AD3d 781, 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]). There are numerous questions of fact in the testimony and evidence presented which preclude summary judgment in favor of the defendant RUMC. The plaintiff provided the redacted medical affirmation of a physician who opined that it was a deviation by RUMC and Dr. Adrian in failing to perform a spiral CT on plaintiff when she presented, at the direction of Dr. Borges, to rule out a pulmonary embolism on March 22, 2007. In addition, the doctor opined that Dr. Bergman's failure to counsel the plaintiff as to the risks of becoming pregnant while on coumadin, as the prescribing physician, was also a deviation. The redacted expert affirmation has raised numerous questions of fact and it is well settled that in medical malpractice actions where the parties offer conflicting expert opinions raising a credibility issue a jury's resolution is required (Dandrea v. Hertz, 23 AD3d 332 [2d Dept 2005];Shields v. Baktidv. 11 AD3d 671 [2d Dept 2004]; Barbuto v. Winthrop University Hosp., 305 AD3d 623 [2d Dept. 2003]). As such, summary judgment is denied with respect to defendant RUMC.
III. Dr. Grecco's Motion for Summary Judgment [Motion 008]
Plaintiff concedes that no claims regarding the alleged failure to diagnose plaintiff's pulmonary embolism are being presented against Dr. Grecco. Dr. Grecco's alleged deviation is only with respect to the failure to properly monitor the plaintiff while on coumadin. It is undisputed that plaintiff was placed on coumadin on April 1, 2007, by Dr. Bergman, at RUMC. Dr. Grecco never prescribed coumadin to the plaintiff. Between April 1, 2007, and the diagnosis of plaintiff's pregnancy on December 28, 2007, Dr. Grecco saw plaintiff Nicole Borges several times for gynecological complaints, unrelated to her pulmonary embolism. Plaintiff ceased use of oral contraceptive pills (prescribed by Dr. Grecco) upon her diagnosis at RUMC, on or about April 1, 2007.
Defendant Dr. Grecco has established a prima facie entitlement to summary judgment by presenting admissible evidence that he did not deviate from good and accepted medical practice in his treatment rendered to plaintiff Michelle Fernino (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). Dr. Grecco presented the affirmation of Adiel Fleischer, M.D., who opined that the treatment Dr. Grecco rendered to plaintiff was within accepted medical practice. Specifically, Dr. Fleischer opined that Dr. Grecco could not have diagnosed the plaintiff's pregnancy any sooner, even at a November 20, 2007, appointment, as plaintiff was not pregnant at that time. In addition, Dr. Fleischer opined that Dr. Grecco administered care well within the accepted medical standards.
In opposition the plaintiff has failed to raise triable issues of fact (Rebozo v. Wilen, 41 AD3d at 458-59; Rosenman v. Shrestha, 48 AD3d 781, 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]). The plaintiff contends that Dr. Grecco deviated as the prescribing physician for her oral contraceptives, in failing to advise plaintiff of the risks of becoming pregnant while on coumadin. The plaintiff presented the redacted medical affirmation of a licensed obstetrician/gynecologist who opines that Dr. Grecco deviated by failing to counsel plaintiff on the risks of coumadin, even as the non-prescribing physician, because Dr. Grecco was aware plaintiff was sexually active. The redacted physician's affirmation also states that this alleged deviated was "proximate cause of Ms. Fernino becoming pregnant while on Coumadin". The court finds plaintiff's physician affirmation highly speculative and conclusory on causation and the alleged deviations and therefore finds no triable issues of fact (Simmons v. Brooklyn Hosp. Ctr., 74 AD3d 1174, 1178 [2d Dept., 2010]; Gargiulo v. Geiss, 40 AD3d 811, 812 [2d Dept., 2007]). The complaint is hereby dismissed as against Dr. Grecco.
See Plaintiff's Affirmation In Opposition to Defendant Michael Grecco's Motion for Summary Judgment, Ex. A., pg. 8.
IV. Dr. Adrian's Motion for Summary Judgment [Motion 009]
Defendant Dr. Adrian has met his burden establishing a prima facie entitlement to summary judgment (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557). Dr. Adrian submitted the expert affirmation of Dr. Monty M. Bodenheimer, a board certified internist with a sub-certification in cardiovascular disease, who opined that Dr. Adrian was well within good and accepted medical practice in the treatment he rendered to the plaintiff, Michelle Fernino. Dr. Bodenheimer opined that Dr. Adrian did not deviate by failing to give plaintiff a spiral CT scan, considering all her other symptoms and comorbidities, on March 22, 2007.
In opposition the plaintiff has raised triable issues of fact, namely whether Dr. Adrian deviated from good and accepted medical practice in failing to perform a spiral CT scan on March 22, 2007. Plaintiff's redacted expert clearly raises issues of whether the failure of Dr. Adrian in performing a spiral CT scan on plaintiff's presentation to RUMC on March 22, 2007, at the direction of Dr. Borges, was a deviation from good and accepted medical practice and as such, the motion is denied (Dandrea v. Hertz, 23 AD3d 332 [2d Dept 2005][finding that in medical malpractice actions where the parties offer conflicting expert opinions raising a credibility issue a jury's resolution is required]; Shields v. Baktidy, 11 AD3d 671 [2d Dept 2004]; Barbuto v. Winthrop University Hosp., 305 AD3d 623 [2d Dept. 2003]] .
Accordingly, it is hereby
ORDERED that motion 005 by defendant Dr. Louis Emmer is hereby moot, and it is further
ORDERD that the motion 006 by defendant Nicole Borges seeking summary judgment is hereby granted, and it is further
ORDERED that the complaint is hereby dismissed as against defendant Dr. Nicole Borges, and it is further
ORDERED that the motion 007 by defendant Richmond University Medical Center is hereby denied in its entirety, and it is further
ORDERED that the motion 008 by defendant Dr. Michael Grecco is hereby granted, and it is further
ORDERED that the complaint is hereby dismissed as against defendant Dr. Michael Grecco, and it is further
ORDERED that the portion of motion 009 by defendant Dr. Edward Adrian is hereby denied, and it is further
ORDERED that the portion of motion 009 by defendant Dr. Srinivas Duvvuri is hereby granted without opposition, and it is further
ORDERED that the complaint is dismissed as againt Dr. Duvvuri, and it is futher
ORDERED that any and all remaining requests for relief are hereby denied, and it is further
ORDERED that the caption is hereby amended reflecting the aforementioned, and it is further
ORDERED that this case proceed immediately to trial, and it is further
ORDERED that the Clerk enter Judgment accordingly.