Opinion
400800/01.
Decided June 30, 2005.
Before this Court are various motions made by all the defendants for summary judgment dismissing the various causes of action. This is a wrongful death action involving circumstances wherein each of the defendants, it is claimed, played some part in the ultimate demise of Sandra Friedmann.
The relevant events occurred on the night of January 3, 1998 extending into the early morning hours of January 4, 1998. Sandra Friedmann had been a resident of the Silvercrest Extended Care Facility since October 1995. At the time that she was admitted and during the ensuing two-plus years, she was suffering from a variety of serious conditions. These included emphysema and chronic obstructive pulmonary disease, as well as depression and steroid dependence. Mrs. Friedmann was on a ventilator and confined to bed.
Silvercrest is the first moving defendant. Their counsel, while detailing the above, attaches Mrs. Friedmann's complete record. Counsel points out that on admission to the facility Mrs. Friedmann even had open wounds on her hip, shoulder and hands. Further, because of the many years of steroid use, her skin had become extremely delicate and fragile and prone to tearing. Also, counsel points out that the records indicate that Mrs. Friedmann was chronically anemic and because of this she was being given iron supplements. It is finally pointed out that Mrs. Friedmann was in some ways non-compliant, and counsel notes as an example that for several days leading up to January 3, 1998, Mrs. Friedmann had refused to take the prednisone that had been prescribed for her.
What happened on the night of January 3 can be pieced together via the records kept by Silvercrest, via 911 records, and also via the deposition testimony of Mrs. Friedmann's husband, William Friedmann. As far as can be discerned, Mr. Friedmann spent the afternoon of that day visiting with his wife. It should be noted that Mrs. Friedmann, despite being on a ventilator, could communicate and did communicate very actively with her husband and with the staff. At approximately 5:30 p.m. that evening, Mr. Friedmann testified, he stepped out of his wife's room so that aides could prepare her for the evening meal. This meant rearranging her bed linens and cleaning her up for dinner. He waited outside. When they had finished, he re-entered his wife's room and was told by her that she had been treated roughly by the aides and that they had banged her right leg against a bed post while they were moving her around. She also told him that she had a bruise from this rough handling. Mr. Friedmann asked her if she wanted him to take a look at it. She declined and told her husband that if she needed any help she would contact the staff. Mr. Friedmann then left the facility.
He goes on to say that approximately an hour later, when he was at a restaurant dining with friends, and specifically while on the salad course, he was beeped by his wife. She told him then that she was bleeding profusely from her leg and believed that it was broken, and she asked him to come back immediately. He rushed back, went directly to her room, and observed his wife bleeding from her right leg, as well as noting blood all over her newspaper, the bed linens and herself. He asked her whether or not anyone from the facility had been there to see her and she answered in the negative. She also told him that she had been ringing her bell, a bell that he had given her to summon help, and that she had also tried to call the front desk via her telephone, but to no avail.
Mr. Friedmann then describes how he ran to get help and his interaction with the staff, particularly a Physician's Assistant who appeared to be in charge. He also states that he asked if 911 had been called and was assured that it had been. He says he was told by the Physician's Assistant that the latter had contacted Mrs. Friedmann's personal physician Dr. Zhu and also that they were making arrangements, when the ambulance arrived to have Mrs. Friedmann taken to Booth Memorial Hospital. Apparently that hospital did have the equipment that Mrs. Friedmann needed. She also had received care from that hospital in the past. Mr. Friedmann then discusses how first one ambulance arrived and then a second, wherein a discussion ensued between the personnel assigned to each ambulance as to which hospital to take his wife. It appears that Booth was further away than either St. Joseph's Hospital or Mary Immaculate Hospital and based on these relative locations, it was finally decided that it was best to take Mrs. Friedmann to Mary Immaculate. However, in this regard, Mr. Friedmann does say that he heard the first ambulance responder, the one sent by the City, indicate that he did not want to take her to Booth because there had been a problem at that hospital earlier in the evening.
In any event, after the decision was made to take Mrs. Friedmann to Mary Immaculate Hospital, Mr. Friedmann got into his own car and drove there. When he got to Mary Immaculate Hospital, he learned from personnel there that his wife's ambulance had been diverted to St. Joseph's Hospital. He drove frantically to St. Joseph's Hospital and arrived shortly after the ambulance carrying his wife. This was now approximately 8:54 p.m. It should be noted that when the first ambulance arrived at Silvercrest, a line into Mrs. Friedmann for the introduction of fluids had been inserted successfully.
According to Mr. Friedmann, all seemed to be in confusion when his wife and he arrived separately at St. Joseph's. He testified that at the hospital, in the ensuing hours, multiple attempts to get a second line into his wife were unsuccessful. A pressure bandage had been placed over the wound at Silvercrest, but it seemed clear that surgery was needed on the damaged leg.
However, as Mr. Friedmann recalls, when the surgeon finally appeared at the scene in the emergency room at St. Joseph's Hospital, he indicated that he could not proceed with the surgery until a second line was put in and her condition stabilized.
While at St. Joseph's Hospital, Mrs. Friedmann was attended to by the attending physician Dr. Olusegun Ogunfowora, as well as by Nurse Kevin McNamara. Her vital signs while at St. Joseph's Hospital continued to decline and were not able to be stabilized because of the inability to put in this second line and get fluids into her. Finally, a "cut-down" was made into her femoral artery and a central venous line was inserted there. This was around midnight. However, apparently it was too late, because Mrs. Friedmann went into cardiac arrest soon after and was pronounced dead at 1:05 a.m. on January 4, 1998. It should be noted here that both her Certificate of Death and the autopsy report delineate her cause of death as a "blunt impact to the right lower leg with a hematoma, disruption of the soft tissue with abundant hemorrhage".
It is on these facts that each defendant moves for judgment in its favor.
The Silvercrest Motion
Included in the Silvercrest papers is an affidavit from Dr. Joseph Buda, a Professor Emeritus of Clinical Surgery at Columbia University's Physician and Surgeons Hospital. He is also board certified in surgery with a special certificate of qualifications in general vascular surgery. He opines that Silvercrest did not depart from accepted standards of care as pertains to any alleged repositioning of Mrs. Friedmann causing the leg trauma and ultimately her death. Nor does he believe, after reviewing all the records, that there was any malpractice by Silvercrest in failing to seek timely medical attention. He concludes that the care given by Silvercrest was not the proximate cause of Mrs. Friedmann's injuries or death.
He elaborates on these opinions by discussing how chronically ill Mrs. Friedmann was and how her steroid dependence had created a skin condition which easily could lead to bruising of the skin and bleeding under the skin. He goes on to say that the prednisone given to her also produced thrombocytopenia, an illness which causes spontaneous bleeding, and he points out that before her admission to Silvercrest she suffered episodes of this. He further opines that the failure to take prednisone for several days before January 3rd put Mrs. Friedmann in a situation where she was incapable of responding adequately to the increased needs of her body resulting from the trauma.
As to the proximate cause issue, Dr. Buda points out that Mrs. Friedmann's body, despite all the bleeding that had occurred (she lost approximately 300cc's of blood at the facility) was still functioning well at the time she left Silvercrest and notes that Silvercrest had stabilized the bleeding. He adds that the patient was evaluated as alert and oriented, certainly up until the time that she reached St. Joseph's Hospital.
Silvercrest bases its claimed entitlement to summary judgment on the records, including those from EMS and the second ambulance sent by St. Joseph's Hospital, on the testimony of the various EMS witnesses Owen Cunningham and his partner as to the condition the patient was in at the time that they arrived at Silvercrest, as well as on the affirmation from Dr. Buda. Counsel urges that, in the event summary judgment is not granted in its favor, at the very least, the causes of action for wrongful death should be dismissed. Here Silvercrest points out that there has been no showing, particularly in light of Mrs. Friedmann's not having worked for over 40 years before her death and her confinement at Silvercrest for several years, that there is any loss of household services or consortium. Under EPTL § 5-4.3, only pecuniary injuries are recoverable and counsel for Silvercrest says that there are no such pecuniary injuries here.
The Motion by the City
I then received a motion by the City seeking to dismiss and/or for summary judgment on behalf of the EMS personnel who arrived at Silvercrest at approximately 8:17 p.m. on January 3, 1998. Counsel here points to the deposition testimony by the two attendants who arrived at Silvercrest to give basic life support (BLS), as well as to the 911 records. Various arguments are then put forth as to why the case should be dismissed as against the City. Here they argue that as a matter of law, no special relationship or special duty was created. Specifically, they urge that there was no direct contact between the plaintiff or the decedent and the City, as the 911 calls were made by others. Further, they argue that neither the plaintiff nor the decedent had any justifiable reliance on any actions taken by the EMS unit.
In support of the summary judgment motion, the City includes an affidavit from Dr. Thomas Kwiatkoqski, Chairman of the Department of Emergency Medicine at Long Island Jewish Medical Center. He is a board certified internist. He opines that the City's EMS people appropriately applied basic life support protocols and properly assessed and stabilized the patient until the ALS (advanced life support) unit arrived, which then took over and transferred Mrs. Friedmann to the hospital. Also, the doctor points out that from the time EMS first arrived at Silvercrest until the time that Mrs. Friedman was delivered to the emergency room at St. Joseph's, she was at all times stabilized with a line having been inserted, and that she was alert and oriented. Thus, there is no causal connection between any actions by EMS and Mrs. Friedmann's injury or subsequent death.
The Motion by Catholic Medical Center and Various Individual Defendants
Finally, there is a cross-motion by the remaining defendants, specifically Catholic Medical Center, Dr. Ogunfowora, Nurse McNamara and the paramedics Jane Greenko and Meryl Silverstein who arrived at Silvercrest in the ALS unit at 8:35 p.m. The two paramedics, who were actually employees of Catholic Medical Center, were the ones who took over the care of Mrs. Friedmann and transported her, first to Mary Immaculate Hospital and from there to St. Joseph's Hospital. Their counsel makes arguments similar to the ones proffered by the City vis-a-vis their paramedics. Further, with regard to transporting Mrs. Friedmann from one hospital to another, it is explained that these two hospitals were much closer to Silvercrest than was the hospital of choice, Booth (a.k.a. New York Hospital of Queens). The latter was about twenty minutes away, but Mary Immaculate Hospital and St. Joseph's were less than 10 minutes away. It is pointed out that since Mrs. Friedmann was on a ventilator and needed immediate care, rules required that she be taken to the closest hospital.
As part of their papers, counsel includes an affidavit from Dr. Jorge Faired, who is board certified in emergency medicine and family practice. He defends the care given by the health care providers at the hospital. He explains that in his opinion the hospital personnel did not fail to detect Mrs. Freedman's level of shock or fail to provide fluid resuscitation to her or fail to properly monitor her condition.
He points out that EMS had inserted an IV line earlier. At around that time Mrs. Freedman's blood pressure was 90/68 with a pulse rate of 140. However, by 9:20 p.m., about 25 minutes after having arrived at St. Joseph's Hospital, her pressure had risen to 119/72 and her other signs were stabilizing as well. He discusses the failed attempts at inserting a second IV line and why it was appropriate to obtain a consultation with a surgeon in connection with this insertion of the second line. He says: "unfortunately the multiple attempts by the physician including the surgeon to insert a central line, including a cut-down were unsuccessful." He concludes by opining that this difficulty was most likely caused by Mrs. Freedman's underlying medical condition. He says that it is likely that previous hospitalizations contributed to the scarring of her veins and that her obesity contributed to the difficulty in securing a second line.
The Plaintiff's Initial Default on the Motions
After receiving these multiple motions for summary judgment and dismissal, it was noted that the plaintiff had submitted no opposition. Because of the seriousness of the claims and because there had been active, exhaustive discovery prior to filing the note of issue, the Court contacted counsel for the plaintiff to ascertain the reason for the default. A conference call was arranged by my court attorney and all counsel. At that time, plaintiff's counsel made it clear that circumstances caused her default but that she very much wished to oppose these motions on the merits. Plaintiff's counsel was told to submit papers in the first instance explaining her default, together with an affidavit from a physician showing substantive opposition to the motions. This was received and I then decided that it was appropriate to hear from plaintiff on the merits. I declined to assess sanctions.
This decision of mine to allow a resolution of the motions on their merits is not meant to suggest that plaintiff's counsel was without fault in failing to respond in a timely manner. However, since there was no discernible prejudice to the moving defendants and since there is certainly a preference for deciding cases on their merits and since this was a serious matter that had been litigated for a number of years, I felt plaintiff should be given an opportunity to be heard.
Plaintiff's Opposition on the Merits
Plaintiff opposed the various motions with an affidavit from Dr. Alan Lewis Schechter, who is board certified in internal medicine and emergency medicine. Dr. Schechter gave his opinions as to why he believed the medical personnel at St. Joseph's Hospital had committed malpractice. However, and this is certainly pointed out in reply by the defendants, Dr. Schechter offered no opinions about the actions or inactions of Silvercrest, the EMS personnel, or the members of the ALS unit.
With regard to the failures of the hospital, Dr. Schechter points to the delay in obtaining an adequate second IV line for Mrs. Freedman which led to a failure to revive her with adequate fluid resuscitation. He opines that this was the cause of her death and that had she had been given a timely infusion, it is more likely than not that she would have survived. He notes that a left femoral cut-down was performed and access obtained, but states that it was done too late. He says that such an escalated attempt to gain access to a central line should have been made earlier, and adds that nothing was done to stabilize this patient who continued to weaken as the hours passed. He points to the testimony of Nurse McNamara that the earlier IV line was noted to have stopped functioning at some point during the evening. Therefore, Mrs. Freedman vitally needed the second line. Further, it is urged, McNamara conceded that the patient was declining as the evening progressed.
Dr. Schechter points out that Mrs. Freedman, though being designated a level 4 patient, signifying the highest level of need, was not even seen by a surgeon until 10:45. Then another hour passed before the cut-down to a central line was made. Finally, in this regard counsel for the plaintiff points to the testimony of Mr. Freedman, who was there at the hospital throughout the night, that he was frantically trying to get somebody to do something (without success) to help his wife obtain the fluids she so desperately needed.
The Defendants' Reply
I then received reply papers from all the moving defendants, some of which were more persuasive than others. All defendants urged the Court to not even consider the plaintiff's papers in opposition, as they were untimely with insufficient explanation. However, for the reasons stated earlier, I am considering plaintiff's papers.
Discussion
On the merits, I am granting the motion by the City, the motion on behalf of the paramedics employed by Catholic Medical Center, and the motion on behalf of Nurse McNamara. However, I am denying the motion by Silvercrest, and the one on behalf of Dr. Ogunfowora and St. Joseph's Hospital/Catholic Medical Center. I am also dismissing the wrongful death and loss of consortium causes of action.
The motions I am granting, by EMS (the City), by the paramedics sent by St. Joseph's, and by Nurse McNamara, all have something in common. The opposition, via the affidavit from Dr. Schechter, is silent as to any culpability by these parties. It is also silent as to Silvercrest's care, which will be discussed shortly, but the silence is critical here because the ambulance personnel and McNamara clearly were providing medical or quasi-medical care. Therefore, in all of these cases, an affidavit from an expert was required. This was particularly so in light of the fact that those parties all produced in the first instance expert medical opinions attesting to their performance at an acceptable level of care and opining that nothing done or not done by them was causally related to the injuries. These opinions were sufficient to shift the burden to the plaintiff to respond in kind with a medical opinion contesting or challenging them. But as noted, there was none.
Beyond that, particularly with regard to the EMS ambulance personnel who provided BLS and the ALS unit that ultimately transported Mrs. Freedman to the hospitals, there is a failure by the plaintiff in opposition to show that anything done by these individuals or not done by them was causally related to what ultimately happened. As noted earlier, when EMS first arrived at Silvercrest, Mrs. Freedman was alert and oriented and the bleeding had stopped. They were able to secure a line and stabilize her condition. This status continued until she was delivered to the emergency room at St. Joseph's a little before nine o'clock. When she entered their care, she was still alert and oriented, with the line in her still functioning. Therefore, any alleged delay that ensued over the discussion where to take her or the divergence by Mary Immaculate was not shown to have any consequences.
As to Nurse Kevin McNamara, who seems to have spent a considerable time trying to help Mrs. Freedman survive, there has been no showing that anything he did or failed to do worsened Mrs. Friedmann's condition or her chances for survival. Certainly, no medical opinion states otherwise. Beyond that, McNamara was not acting on his own but merely as an employee of St. Joseph's who was following instructions from the doctor in charge, the attending physician Dr. Ogunfowora.
The motions by the hospital and Dr. Ogunfowora stand on a different footing. There, the medical opinion expressed in opposition by Dr. Schechter does sufficiently challenge that expressed by Dr. Faired on behalf of those defendants, and it does create issues as to whether the attending physician and the hospital for which he worked, St. Joseph's, negligently delayed in evaluating the seriousness of Mrs. Friedmann's condition and failing to secure the second line she so desperately needed. Dr. Schechter also opines that this delay and failure were causally related to the patient's injuries.
The most difficult of all the motions to resolve is the original one made by Silvercrest. As noted earlier, Dr. Schechter's affidavit does not mention their care. Thus, if the allegations against Silvercrest truly sound in malpractice, then the omission would be fatal and the motion granted.
However, counsel for the plaintiff takes the position that these claims sound in simple negligence, rather than malpractice, and that therefore there is no need for a medical statement in opposition. She argues that the care provided to Mrs. Freedman during the evening of January 3, 1998 was inadequate and inappropriate in that Silvercrest's aides negligently and roughly attended to Mrs. Freedman when preparing her for supper and banged her leg on the bedpost, causing the bruise that ultimately ruptured. After that, according to the timeline testified to by Mr. Freedman, when he arrived back at the facility between 7:00 p.m. and 7:30 his wife was bleeding profusely, soaking her newspaper and bedding, and it was he who ran for help to get the staff to respond and have the bleeding stop. Thus, the further argument is made that despite knowing of the bruise and the swelling, as well as her propensity for this, the facility left Mrs. Freedman unattended for a significant amount of time.
Additionally, there is some question as to when precisely the first call was made to 911. Silvercrest's records are not clear on this point. According to Mr. Freedman, when he arrived and inquired whether a call to 911 had been made, he was told that it had been. Yet according to EMS, the first call for help from the facility was at 7:55 p.m. describing a "right foot rupture," followed by a second call at 7:58 p.m. indicating bleeding from the foot by a "patient steroid and ventilator depended."
Therefore, there is an argument that Mrs. Freedman was allowed to bleed for a prolonged period and lose 300 cc's of blood from which she was never able to recover. Finally, it is noted that the official cause of death is recorded as impact from a blunt instrument and hemorrhaging.
In response to this argument, counsel for Silvercrest argues that this case is all about appropriate medical care and therefore sounds in malpractice. On this issue, counsel points out that the complaint sounds in malpractice and that the plaintiff even filed a Certificate of Merit and Medical Malpractice. Here she relies again on Mrs. Friedmann's extensive records while at the facility and her multiple medical problems. Counsel once more points to the affirmation from Dr. Buda in support of the motion and urges that the care provided by Silvercrest was sufficient and satisfactory.
As to the filing of a Certificate of Merit and Medical Malpractice, that is not and should not be dispositive, particularly here since it was the Court who ordered plaintiff's counsel to belatedly file these documents in May of 2003 when I found that counsel had been dragging her feet in meeting her obligations. This was two years after the action had been commenced and years before discovery had been completed. Also, there certainly were clear causes of action sounding in medical malpractice against others.
As our highest court said in Scott v. Uljanov, 74 NY2d 673, 674-75 (1989):
In that medical malpractice is simply a from of negligence, no rigid analytical line separates the two . . . Conduct may be deemed malpractice, rather than negligence, when it "constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician". ( Bleiler v. Bodnar, 65 NY2d 65, 72).
In Bleiler, the court contrasted claims sounding in malpractice which involved treatment provided by a doctor and nurse with claims sounding in negligence that involved a hospital's failure to provide competent personnel or promulgate appropriate emergency room rules. Other courts finding negligence as opposed to malpractice have noted a failure to properly supervise a patient. See, e.g., Huntley v. State, 62 NY2d 134 (1984); Papa v. Brunswick General Hospital, 132 AD2d 601 (Second Dept, 1987); Reardon v. Presbyterian Hospital, 292 AD2d 235 (First Dept. 2002); Halas v. Parkway Hospital, 158 AD2d 516 (Second Dept. 1990).
In determining this issue, one has to analyze the nature of the duty to the plaintiff which the defendant facility is alleged to have breached. Here it could be argued that Silvercrest had a duty to treat Mrs. Friedmann with sensitive, due care in light of what they knew of her condition and special needs and to provide her with timely help which, being bedridden, she could not provide to herself. The allegations by plaintiff against the facility do not really involve diagnosis or treatment or the failure to follow a physician's instructions, all situations where malpractice is the issue and testimony by a medical expert is necessary.
As I stated earlier, counsel for Silvercrest argues this is in essence a case of a claimed failure to provide proper medical care and cites, for example, to Zeller v. Tompkins Community Hospital, 124 AD2d 287 (Third Dept. 1986). That case involved a situation where the plaintiff maintained that the hospital failed to timely respond to her calls for assistance, a claim which plaintiff described as simple negligence. But the court, citing Bleiler (supra), opined that "response time in a hospital speaks directly to the question of patient care, which, in turn, bears a substantial relationship to a patient's overall medical treatment."
This case before me is a close one on this issue. However, in finding that the claims sound more in negligence than in medical malpractice, I am considering that Silvercrest is a residential extended care facility for those unable to reside on their own, rather than an exclusively medical facility. At Silvercrest, for example, on the night in question the highest level of medical personnel on site was a Physician's Assistant, though this is not meant to imply that medical malpractice claims cannot involve personnel others than doctors. The claims are that Mrs. Freedman was injured at the outset by careless treatment by attendants preparing her for the evening meal and then left unattended for a substantial period while bleeding profusely. There is also an issue as to whether 911 was called promptly. I believe these are claims which the jury can resolve without the aid of an expert opinion.
This Court is aware that some of these claims rely, at least in part, on statements made by the decedent that may be challenged at trial. However, this was not a part of the motions now being decided.
Finally, the wrongful death claims and those for loss of consortium are dismissed, as the persuasive arguments put forth by the defendants go unchallenged.
Accordingly, it is hereby
ORDERED the motions for summary judgment are granted to the extent that the complaint is hereby severed and dismissed as against defendants City of New York, the New York City Fire Department and the various emergency medical personnel and paramedics employed by them, defendants Jane Greenko, and Meryl Silver stein, and defendant Kevin McNamara, R.N., and the Clerk is directed to enter judgment in favor of said defendants; and it is further
ORDERED that the motion to dismiss is granted and the causes of action of the complaint sounding in wrongful death and loss of consortium are dismissed; and it is further
ORDERED that the remainder of the action against defendants Silvercrest Extended Care Facility, Olesegun Ogunfowora, M.D., and St. Joseph's Hospital/Catholic Medical Center of Brooklyn and Queens, Inc., shall continue.