Opinion
Index No.: 08258/2012
08-12-2014
Laura Bee, as Administrator of the Estate of Christopher Bee, and Laura Bee individually, Plaintiff, v. Mohan Sharma, M.D. and Cindy Callahan, RPA-C, Defendants.
Attorney for Plaintiff: Birzon, Strang & Associates 222 East Main Street, Suite 212 Smithtown, NY 11787 Attorney for Defendant Dr. Mohan Sharma, M.D.: Anthony P. Vardaro, P.C. 732 Smithtown Bypass, Suite 203 Smithtown, NY 11787 Attorney for Defendant Cindy Callahan. RPA-C: Fumuso, Kelly, DeVerna, Snyder Swart & Farrell, LLP 110 Marcus Boulevard, Suite 500 Hauppauge, NY 11788
Short Form Order
PRESENT:
Motion Sequence No.: 001; MD
Motion Date: 3/18/14
Submitted: 5/27/14
Motion Sequence No.: 002; MD
Motion Date: 3/18/14
Submitted: 5/27/14
Attorney for Plaintiff: Birzon, Strang & Associates
222 East Main Street, Suite 212
Smithtown, NY 11787
Attorney for Defendant
Dr. Mohan Sharma, M.D.:
Anthony P. Vardaro, P.C.
732 Smithtown Bypass, Suite 203
Smithtown, NY 11787
Attorney for Defendant
Cindy Callahan. RPA-C:
Fumuso, Kelly, DeVerna,
Snyder Swart & Farrell, LLP
110 Marcus Boulevard, Suite 500
Hauppauge, NY 11788
Clerk of the Court
Upon the following papers numbered 1 to 32 read upon these motions for summary judgment: Notice of Motion and supporting papers (001), 1 - 14; (002), 15 - 25; Answering Affidavits and supporting papers, 26 - 28; Replying Affidavits and supporting papers, 29 - 30; 31 - 32; it is
ORDERED that motion (001) by defendant, Cindy Callahan, RPA-C, pursuant to CPLR 3212 for summary judgment dismissing the complaint is denied; and it is further
ORDERED that motion (002) by defendant, Mohan Sharma, M.D., CPLR 3212 for summary judgment dismissing the complaint asserted against him is denied.
In this medical malpractice action, causes of action for the conscious pain and suffering and wrongful death of plaintiff's decedent, Christopher Bee, have been asserted by plaintiff Laura Bee, premised upon the defendants' alleged negligent departures from good and accepted standards of care and treatment provided to the decedent. Defendant Mohan Sharma, M.D. was decedent's primary care physician. Defendant Cindy Callahan, RPA-C was a nurse practitioner employed at Dr. Sharma's office and worked under his supervision. The decedent had a known history of alcohol use for which he had multiple inpatient admissions and attended rehabilitation programs and Alcoholics Anonymous. He fell down the stairs one evening, injuring his rib area. He then had another work related injury to his ribs and was seen by PA Callahan at Dr. Sharma's office on three separate occasions for the injury. At the last two visits of February 19, 2011 and February 26, 2011, PA Callahan prescribed a total of 80 Soma tablets. Christopher Bee was found dead at home on March 3, 2011. His autopsy report revealed his death was caused by acute intoxication due to the combined effects of Carisoprodol (Soma) and ethanol (alcohol).
The 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 eliminate any material issues of fact from the case ( Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395,165 N YS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v N.Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v N.Y.U. Medical Center, supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v Liberty Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981]).
In support of motion (001), defendant Cindy Callahan RPA-C submitted, inter alia, an attorney's affirmation; copies of the summons and complaint, Callahan's answer, and plaintiff's verified bill of particulars; transcripts of the examinations before trial of Laura Bee, Mohan Sharma, Cindy Callahan, and the unsigned but certified transcript of non-party witness Barbara O'Grady with proof of mailing; certified office records from Suffolk Family Medicine Associates; uncertified autopsy report; and affirmation of Philip Sumner, M.D.
In support of motion (002), defendant Mohan Sharma submitted, inter alia, an attorney's affirmation; Sharma's answer and demands, and plaintiff's verified bill of particulars; transcript of examination before trial of Mohan Sharma and PA Callahan; office record maintained by Suffolk Family Medicine Associates; and affirmation of Vincent P. Garbitelli, M.D.
The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage ( Holton v Sprain Brook Manor Nursing Home, 253 AD2d 852, 678 NYS2d 503 [2d Dept 1998], app denied 92 NY2d 818, 685 NYS2d 420 [1999]). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence was a substantial factor in producing the alleged injury (see Derdiarian v Felix Contracting Corp., 51 NY2d 308, 434 NYS2d 166 [1980]; Prete v Rafla-Demetrious, 224 AD2d 674, 638 NYS2d 700 [2d Deptl996]). Except as to matters within the ordinary experience and knowledge of laymen, expert medical opinion is necessary to prove a deviation or departure from accepted standards of medical care and that such departure was a proximate cause of the plaintiff's injury (see Fiore v Galang, 64 NY2d 999, 489 NYS2d 47 [1985]; Lyons v McCauley, 252 AD2d 516, 517, 675 NYS2d 375 [2d Dept], app denied 92 NY2d 814, 681 NYS2d 475 [1998]; Bloom v City of New York, 202 AD2d 465, 465, 609 NYS2d 45 [2d Dept 1994]).
"The affidavit of a defendant physician may be sufficient to establish a prima facie entitlement to summary judgment where the affidavit is detailed, specific and factual in nature and does not assert in simple conclusory form that the physician acted within the accepted standards of medical care" ( Toomey v Adirondack Surgical Assoc., 280 AD2d 754, 755, 720 NYS2d 229 [3d Dept 2001][citations omitted]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]; Machac v Anderson, 261 AD2d 811, 812-813, 690 NYS2d 762 [3d Dept 1999]).
To rebut a prima facie showing of entitlement to an order granting summary judgment by defendants, plaintiff must demonstrate the existence of a triable issue of fact by submitting an expert's affidavit of merit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendants' acts or omissions were a competent-producing cause of the injuries of the plaintiff (see Lifshitz v Beth Israel Med. Ctr-Kings Highway Div., 7 AD3d 759, 776 NYS2d 907 [2d Dept 2004]; Domaradzki v Glen Cove OB/GYN Assocs., 242 AD2d 282, 660 NYS2d 739 [2d Dept 1997]).
The general rule in New York is that an expert cannot base an opinion on facts he did not observe and which are not in evidence, and that the expert testimony is limited to facts in evidence (see Allen v Uh, 82 AD3d 1025, 919NYS2d 179 [2d Dept 2011 ]; Marzuillo v Isom, 277 AD2d 362, 716 NYS2d 98 [2d Dept 2000]; Stringile v Rothman, 142 AD2d 637, 530 NYS2d 838 [2d Dept 1988]; O'Shea v Sarro, 106 AD2d 435, 482 NYS2d 529 [2d Dept 1984]; Hornbrook v Peak Resorts, Inc., 194 Misc2d 273, 754 NYS2d 132 [Sup Ct, Tomkins County 2002]).
Laura Bee testified to the extent that she was married to Christopher Bee, and that they had two sons. She had a daughter from a former marriage, but the decedent raised her. She continued that the decedent graduated in 1990 from New York Chiropractic College and was licensed in New York State. He maintained a practice and other employment as a chiropractor, but ten years prior to his death, he began employment at Lake Grove Schools as a counselor for dysfunctional children, because he was seeking help with alcoholism and needed to take a leave of absence from chiropractic medicine. In about 1996 or 1997, they had noticed that he was having an issue with alcoholism and was drinking at night. He had multiple inpatient rehabilitation admissions for 28-30 day stays, commencing in about 2001, and also received outpatient treatment related to alcoholism. He was treated with various medications for depression and bipolar disorder. Dr. Sharma prescribed the antidepressant medication.
When asked if the decedent ever attempted suicide, she stated that he was crying for help. Mrs. Bee testified that on one occasion, her husband was taken to the Stony Brook Hospital emergency room because he took a number of blood pressure pills in her presence while he was drunk. He was disgusted, embarrassed, and ashamed of himself. She did not know him to take other medication in a way that was not prescribed. Mrs. Bee continued that on one occasion, her husband threw himself down the stairs. She stated that it was another cry for help, but she did not know if he was suicidal. She was advised at some point that he needed psychiatric help and that he was not stable, so he was admitted to the facility at Southside Hospital.
Mrs. Bee continued that another time, the decedent was transferred from Pederson-Krag outpatient facility to Stony Brook as they felt he was emotionally unstable. On many occasions, about seven or more, they met with Dr. Sharma to discuss her husband's addiction, his issue with alcohol. She testified that Dr. Sharma told her that he did research and writings about alcoholism and seemed knowledgeable and made her feel confident that there was help, and they would get it right. Another time when Dr. Sharma was not there, his male PA prescribed Antabuse. Her husband took Antabuse, but then drank beer and had to go to Stony Brook emergency department because he felt like he was having a heart attack. She continued that, after that, Dr. Sharma would not prescribe Antabuse again as he felt it was dangerous, despite her asking him over and over again to prescribe it. She then started giving her husband Aspirin or something, and told him it was Antabuse. He did not drink then for almost six months, until he caught on that it was not Antabuse. She stated that when he drank, it was mostly at home.
Mrs. Bee testified that Dr. Sharma never warned her if there were any medications her husband was taking that he should not take while he was drinking, or if there were side effects from those medications. Dr. Sharma never requested medical records from her husband's other treating physicians. She felt that her husband never held back information about his alcohol use. In February 2011, when her husband was injured at work, he was seen at the Stony Brook emergency room. She did not know if he was prescribed any medication. He had to stay out of work until he was cleared to return by Dr. Sharma as he had broken ribs. After her husband died, she learned that Soma had been prescribed. The night before he died, he drank a little, but was not drunk. They did not argue. He was in a good mood. She went to bed to go to sleep and he was watching TV downstairs. Her son found him in the morning on the couch and yelled upstairs to her that he thought Dad was dead. She called 911 and gave CPR until the ambulance arrived.
Dr. Sharma testified to the extent that he has been licensed in New York State and Michigan since about 1998. He has had a private practice since November of 2006 known as Caring Medical LLC, of which he is president, and which has the corporate name of Suffolk Family Medicine Associates. For the past five years, he had employed one doctor part-time, and two physician's assistants. Prior to coming to the United States, after receiving his medical degree, he published a thesis in English on Physical and Psychiatric Assessment of Chronic Alcoholics, based upon a rural population in India. Treatment of alcoholism has not been an aspect of his clinical practice in New York State while in private practice. He stated that as a primary care physician, he is not very commonly confronted with patients who are alcoholics. Dr. Sharma testified that Christopher Bee first came to his office on April 30, 2007 for a work related physical. His office record indicated that the decedent was following with psychiatry, but he did not have further information in his note as "he didn't give enough history at that point." He testified that the topic of substance abuse rehab for approximately four weeks admission did not come up during his first office visit. The decedent advised him he was taking Wellbutrin, Lexapro and Seroquel, as provided by psychiatry for generalized anxiety disorder with depression. Dr. Sharma continued that the decedent also suffered from hypertension, high cholesterol, and obesity.
Dr. Sharma set forth the care and treatment he provided to the decedent over the years. Referencing the office visit of June 20, 2007, Dr. Sharma stated that he was unsure if he ordered the decedent's Lexapro and Seroquel, or if his psychiatrist did. The decedent was encouraged to follow-up with his psychiatrist, and the risk of psychiatric disability for not following up with the psychiatrist and risks for not taking medication were discussed. He was noted to have acute bronchitis on January 28,2008 for which Phenergan with Codeine was prescribed with instructions not to take it continuously as it is addicting. Dr. Sharma testified that there was no active abuse at that time. The decedent was noted to be stable with no suicidal thoughts on February 22, 2008. Dr. Sharma testified that in patients with generalized anxiety and depression, he would make inquiry as to whether they have suicidal ideation. Dr. Sharma's note stated that Wellbutrin is to be discontinued and Lexapro 20 mg daily was prescribed, but he did not know if he or the psychiatrist changed the medication.
Dr. Sharma testified that Dr. Khan saw the decedent on March 21, 2008 and indicated that the decedent ran out of Lexapro and felt better on it, so she continued it. She also indicated on the March 31, 2008 office visit note that "smoking cessation/alcohol abstinence," which he countersigned, but did not know why Dr. Khan wrote that. PA Johnson saw the decedent on August 28, 2008 for a check-up, an charted "ETOH dependency. Antabuse 250 mg two tablets daily for two weeks, then one tablet daily," was prescribed. Dr. Sharma did not recall himself ever ordering Antabuse for a patient and it was not something which he wrote on in his thesis. He did not see the decedent on that date, but did countersign PA Johnson's note and testified that he would have told Johnson that "we don't prescribe Antabuse in the office." He added that he would have told PA Johnson that "we don't do this alcohol treatment in the office." The note of September 11, 2008 indicated that the decedent drank beer while taking Antabuse, got sick, and was seen at Stony Brook University Hospital. His diagnosis was that of "chronic alcoholism. Needs to see psychiatry. Referred to psychiatrist and D addiction." He stated, however, that there was no acute alcoholism because there was no alcohol on his breath. He was not sure if the decedent was actively taking Antabuse on that date. Dr. Sharma testified that he advised the decedent's wife that he did not prescribe these types of medications, when she asked him to prescribe Antabuse again.
Dr. Sharma testified that on October 9, 2008, he wrote in his note that the decedent had chronic ETOH abuse, as an item of historical information. He was not taking his Caduat for blood pressure. On April 20, 2009, Dr. Sharma spoke to the decedent about compliance as he had not been in for a visit for six months. On April 22, 2009, the decedent returned complaining of headaches for three months and elevated blood pressure. He noted the decedent has chronic alcoholism and that all complications were discussed. On July 15, 2009, the decedent's chart was still noting that he was noncompliant historically and entered "chronic alcohol abuse" which he stated was historical. His psychiatric presentation remained unchanged. He was seen on September 28, 2009, and was noted to be non-compliant, as he did not return for an office visit after the July 25, 2009 blood draw. Dr. Sharma did not know if the decedent had any relapses with regard to alcohol use. The decedent presented on November 5, 2009 for medical clearance for an eye procedure, and Dr. Sharma indicated that the decedent had a history of heavy alcohol abuse, but he did not indicate that he was actually using alcohol at that point.
Dr. Sharma testified that PA Callahan saw the decedent on January 25, 2010 for elevated blood pressure. She noted, among other things, a history of alcohol abuse, depression, generalized anxiety disorder and symptoms controlled. The decedent returned again on March 22, 2010 as he fell down a flight of stairs head first on March 12, 2010. He had been in rehab for one week, and then went to Peconic Bay Hospital three days after being sent from rehab. He was discharged and went to Alcoholics Anonymous the night before the visit. She urged the decedent to stop smoking and to abstain from alcohol. Lidoderm patch was ordered for the pain. On May 26, 2010, he was seen for a cough and afternoon headaches, and was smoking one pack per day of cigarettes. Blood work was performed and the decedent was left a message with the results. On November 4, 2010, Dr. Sharma saw him for low testosterone, hair loss and no sex drive. Bruising was noted over his eye which the decedent stated was from glasses. He indicated that the decedent had no suicidal thoughts. There was no discussion concerning alcoholism on the November 17, 2010 visit.
Dr. Sharma continued that on February 12, 2011, the decedent was seen by PA Callahan for an injury in the rib area sustained at work. He countersigned PA Callahan's note, but did not recall any specific conversation with her. He also countersigned PA Callahan's note concerning the February 19, 2011 visit wherein PA Callahan prescribed Soma as a muscle relaxant. Dr. Sharma stated that Soma also is a central nervous system depressant, and it is not contraindicated in patients with a history of addiction, but it would be used with precaution in those patients. The precaution is to only give a seven to ten day supply of Soma as the patient can become habituated if on the medication longer. Dr. Sharma testified that there was no contraindication in giving the Soma to the decedent, and he countersigned the order, as the only contraindication is giving Soma to patients with porphyria and allergy to Moprobamate which is, the metabolite of Soma. Dr. Sharma testified that since 2011, Soma was transitioned to a Schedule IV drug because some patients had addiction problems when given the drug on a chronic basis. He also felt the dosage of 350 mg was appropriate for the decedent as he was an obese guy. He did not know if on February 19, 2011, the manufacturer of Soma recommended patient counseling to avoid the use of alcohol when taking Soma.
Dr. Sharma noted that the decedent returned on February 26, 2011 and was seen by PA Callahan. He countersigned her note and felt that there was nothing unusual about her again prescribing Soma for the decedent, including the dosage of 350 mg four times a day. He also felt the issuance of another 40 tablets one week apart was consistent with good and accepted practice. That was the decedent's last visit to the office prior to his death. He did not recall how he learned of the decedent's death or the circumstances surrounding his death. He had no recollection of being contacted by the decedent's wife or sons on March 3, 2011. He thought there was nothing unusual until he received the court papers. He stated the decedent was very professional. He would have never labeled him as having big problems with alcohol. He was respectful, and neatly dressed. The decedent never himself mentioned alcohol. Dr. Sharma testified that he was unaware of why the decedent's records of the office visits of February 19 and 26, 2011 were not provided with his other records when initially requested, and he could not find copies of the Soma prescriptions.
Cindy Callahan testified to the extent that she has a masters in science degree and is certified and licensed in New York as a physician's assistant. One year after graduation, she became employed by Dr. Sharma through Caring Medical and Suffolk Family Medicine. She remembered Christopher Bee, whom she saw for the first time on January 25, 2010 for his blood pressure. She described that visit and indicated that she noted in his chart his psychiatric/psychological condition as stable. He had a history of depression and generalized anxiety disorder, which she learned by looking through his chart. PA Callahan testified that the decedent told her that he used to be a chiropractor but lost his privileges due to the excessive use of alcohol. She had a sense that he was not using alcohol at the time based upon his language, discussion, and his genuine concern for his health. He spoke about sobriety, the challenges of sobriety, and that he was feeling good about himself because he was doing well. He did not smell of alcohol and she did not see signs that he was currently drinking. She stated that he was absolutely dignified, and very articulate. She believed he was taking Lexapro and was seeking therapy. She had no conversation about the decedent with Dr. Sharma, who signed her note.
PA Callahan testified that she saw the decedent on March 22, 2010, at which time he advised her that he fell head first down a flight of stairs on March 12, 2010, and broke or bruised a rib. He had been drinking very heavily, went to rehab for seven days at Seafield, then to Peconic Bay Hospital for three days, and started AA last night. The visit was just for follow-up with his primary care physician. She noted he had a bruise, questionable fracture, and that he was prescribed Lidoderm patches and an x-ray, and was advised to abstain from alcohol and follow-up with psychiatry. She had no conversation about the decedent with Dr. Sharma who signed her note. She discussed the May 26, 2010 visit wherein she noted historically the decedent's alcohol abuse, and her treatment for bronchitis.
PA Callahan testified that she saw the decedent on February 12, 2011, for an injury he sustained breaking up a fight between students at his job. He had been seen at Stony Brook Hospital and was following-up. She discussed obtaining those records to obtain x-ray results, and advised him not to return to work due to the injuries. She prescribed Voltaren gel and Ibuprofen for pain. She had no discussion with Dr. Sharma about the decedent, and Dr. Sharma countersigned her note. PA Callahan continued that the decedent returned on February 19, 2011 for follow-up for the injury. She prescribed a trial of Soma, a muscle relaxer, increased the dose of Ibuprofen, and continued the Voltaren gel. She stated she prescribed Soma because he was very uncomfortable and stiff. PA Callahan testified that she asked the decedent how he was doing on his plan of abstinence, and that he advised her that he was doing very well. His affect was appropriate, and he was clearly uncomfortable with the pain. She continued that she gave him instructions on how to take the Soma, and based upon his answer, she did not feel she needed to discuss anything further with him about the medication. She stated that the 350 mg dosage was prescribed, not based upon his weight, but because a lot of pharmacies do not stock the 250 mg tablets, and because some insurance companies do not cover the 250 mg dosage. She provided a ten day supply of Soma in case the decedent couldn't make it back exactly in seven days.
PA Callahan continued that Soma provokes central nervous system depression, which effect is enhanced with alcohol. She had considered giving him something for pain without central nervous system depressant effect, but decided not to and prescribed Soma. She continued that she considered a drug from the opioid class, but didn't because of the addiction potential. Soma, she stated, has addition potential, but at the time, it had a different schedule which changed in early 2012. She learned of this bump-up in schedule, and Soma's higher addiction potential, when she received a mass mailing from the manufacturer. She had no discussion about the decedent with Dr. Sharma concerning that visit, and he countersigned her note.
PA Callahan testified that the decedent returned on February 26, 2011 at which time she reviewed the historical information, and gave him a new prescription for 40 Soma tablets, 350 mg. as he still had a significant amount of discomfort. She continued that the Soma was giving him some relief as he was able to sleep and to feel more functional. They also decided that he needed one more week of rest. His affect and appearance were appropriate. He was to return in one week. There was no discussion with Dr. Sharma about the decedent after this visit, and he countersigned her note.
PA Callahan stated that she learned of decedent's death from Dr. Sharma at about the beginning of 2012, but he provided no information concerning the circumstances surrounding his death. There were two patients in the office that she was aware of who had been prescribed Antabuse and were monitored very closely. She never learned of the decedent's experience with Antabuse. Dr. Sharma never advised her or discussed with her the use of Soma or Antabuse.
Turning to motion (001), Cindy Callahan submitted the affirmation of Philip Sumner, M.D. a physician who affirms he is licensed to practice medicine in New York State and is board certified in internal medicine and a diplomate of the National Board of Medical Examiners. He has not set forth his education and training as part of his qualifications to render expert opinion, or the extent of his work experience as a physician. Rather, Sumner stated in a conclusory manner that he is familiar with the scope of practice for physician's assistants and scope of practice in New York State. Dr. Sumner also set forth the materials and records which he reviewed and upon which he bases his opinion, however, except for the Suffolk Family Medicine Association, none of the eight hospital records and treatment facility admission records have been provided with the moving papers.
Dr. Sumner stated that the decedent, Christopher Bee, was a 45 year old male with a long history of significant psychiatric problems and alcohol abuse with multiple hospitalizations and out-patient rehabilitation efforts. He was diagnosed with anxiety, depression and possible bipolar disorder, and had co-morbidities of obesity, hypertension, hyperlipidemia, and smoking. He stated that the decedent was first seen by PA Callahan on January 25, 2010 when he presented with hypertension, and indicated he was not taking any anxiolytic medication and was not abusing alcohol, but was taking Lexapro as an antidepressant. Dr. Sumner stated that the decedent's next office visit with PA Callahan was on March 22, 2010, at which time he advised her that he "threw himself down the stairs, but his wife advised that he was "drinking heavily and fell." PA Callahan ordered x-rays and prescribed a Lidoderm patch for analgesia, which Dr. Sumner stated was an acceptable treatment choice for the decedent. At the May 26, 2010 visit, the decedent presented with bronchitis and did not express suicidal ideation. There was no evidence of alcohol abuse, but did not set forth the basis for that statement.
Dr. Sumner stated that on February 12, 2011, the decedent presented to PA Callahan for a dislocation of his pinky finger and a painful left rib injury for which Ibuprofen and Voltaren gel were prescribed, which he stated was appropriate pain relief medication. On February 19, 2011, the decedent presented to PA Callahan complaining that he still had pain, and Callahan increased the Ibuprofen and continued the Voltaren gel. She also prescribed Carisoprodol (Soma) 350 mg for discomfort he experienced with sitting and sleeping, and muscle spasms. The prescription provided for 40 Soma tablets, with no refills, and he was not to exceed four pills in one day. Dr. Sumner stated this was appropriate for the treatment of muscle stiffness and continued pain with failure to respond to the previously prescribed medications. He added it was better than prescribing an opioid which is more addictive and does not provide muscle relaxation. On February 26, 2011, the decedent presented to PA Callahan again complaining of pain for which she prescribed Soma 350 mg, 45 tablets, not to exceed four tablets a day. No refills were provided. Dr. Sumner opined that the total 20 day prescriptions for Soma was consistent with protocol and was within the accepted standards of care.
Dr. Sumner stated that because PA Callahan testified that she graduated from an accredited institution and is licensed as a physician's assistant, she is bestowed with full privileges for prescribing medication, including narcotics, and evaluating patients. Her interactions are reviewed by her employer and supervising physician, co-defendant Dr. Mohan Sharma. He continued that Carisoprodol is a skeletal muscle relaxant with sedative qualities, and is metabolized primarily to meprobamate, which also has sedative qualities. It is prescribed only for short term use due to the risk of dependency, and the recommendation is not to treat with it for more than three weeks. For the decedent's size of six feet two inches and 250-275 pounds, the dose of 350 mg, rather than 250 mg, was appropriate. Dr. Sumner continued that interaction with alcohol in significant quantitites is a risk, and that PA Callahan did inquire about the state of the decedent's abstinence from alcohol and was told that he was "doing very well."
Dr. Sumner stated that Dr. Sharma co-signed PA Callahan's orders and was in agreement with this treatment plan. Dr. Sumner continued that the decedent's wife testified that on the evening prior to his death, the decedent was happy and may have drank a little, but was not drunk, and he was in a good mood. The decedent was found on the couch, not breathing, on March 3, 2011 at about 6:15 a.m. EMS was called. He was taken to Southampton Hospital where his pupils were found to be fixed and dilated, the endotracheal tube was in his esophagus, and Dr. Sumner opined that, considering the respiratory depressive effect, he was likely already past resuscitative efforts by that time. Dr. Sumner continued that the toxicology reports revealed a femoral blood concentration of Carisoprodol of 24 mg/liter, extremely high. There was an ethanol level of 0.1 %, and the New York State legal limit for alcohol is .08 %. Thus, he stated, the decedent's blood alcohol level of 0.1is negligible and not a physicological factor in the decedent's demise. He continued that the toxicology report indicated that the decedent may have taken at least 16 Soma tablets, 7 from the stomach and 9 from the serum values, and possibly as many as 37 tablets, 7 from the stomach and 30 from serum values. This, stated Dr. Sumner is more than the potential lethal dose, and thus, the issue of alcohol level or prescribing 250 mg tablets of Soma instead of 350 mg is irrelevant. Dr. Sumner concluded that the treatment rendered by PA Callahan was consistent with the correct standards of care and reflected good judgment, there were no deviations from the accepted stands of care, and nothing that she did or failed to do was the proximate cause of the injury to the decedent.
However, it is noted that 0.1% is a higher level than 0.08 %, thus raising a factual issue.
Turning to motion (002), Dr. Sharma submitted the affirmation of Vincent P. Garbitelli, M.D., a physician licensed to practice medicine in New York State who is board certified in internal medicine. He added that he is fully familiar with the scope of practice for physician's assistants and for those physicians who supervise them. He set forth his training, and indicated that he is engaged in private practice, but does not indicate the period of time he has been practicing. He set forth the materials and records which he reviewed. Dr. Garbitelli opined within a reasonable degree of medical certainty that the care and treatment provided by Dr. Sharma was at all times in conformity with accepted internal medical practice as it existed in 2011, and that the treatment rendered by him or any other defendant did not proximately result in injury and the death of plaintiff's decedent.
Dr. Garbitelli stated that the decedent first presented to Dr. Sharma on April 30, 2007 for an employment physical and that Dr. Sharma's plan was to control the decedent's high blood pressure and high cholesterol, and have him follow-up with his psychiatrist for his psychiatric issues for depression and generalized anxiety. He continued that the visits at issue commenced on February 12, 2011 when the decedent was seen by PA Callahan for an injury at work which caused bruising of his ribs and a pinky injury. The decedent was told by PA Callahan to use Ibuprofen, Voltaren gel and to follow-up with an orthopedist. This note was cosigned by Dr. Sharma.
Dr. Garbitelli noted that on February 19, 2001, when the decedent was again seen by PA Callahan with continued complaints of rib pain, she again advised him to refrain from working, increase the dosage of Ibuprofen, use the Voltarean gel, and to take Soma, a muscle relaxant, for which he was given a prescription for 40, 350 mg tablets. Dr. Sharma cosigned this note indicating a concurrence. Dr. Garbitelli stated that Soma was not contraindicated for the decedent, even with a history of chronic alcoholism. Dr. Garbitelli continued that on February 26, 2011, when PA Callahan again prescribed 40 Soma 350 mg tablets for the decedent, that Dr. Sharma was again in concurrence and did not find it unusual for the second script to be ordered, or the dosage of 350 mg. Thereafter, stated Dr. Garbitelli, the decedent was found not breathing on the couch by his son on March 3, 2011 at about 6:15 a.m. He was taken to Southampton Hospital where he was pronounced dead.
The toxicology report revealed the decedent had a blood alcohol level of 0.1%, which Dr. Garbitelli referred to, however, he has not set forth how such serum alcohol value relates in terms of toxic levels. He noted that the femoral blood concentration of Soma was 24 mg per liter, and the gastric contents was 2.52 g/total. This, Dr. Garbitelli stated, indicated that the gastric contents reveal the decedent took 8 Soma tablets at one time, however, he does not set forth how he made such determination. He continued that based upon the gastric contents alone, the decedent took Soma in a manner that was not prescribed. Dr. Garbitelli stated that Dr. Sharma properly supervised PA Callahan and appropriately consulted with her in conjunction with her treatment of the decedent. It was well within the standard of care for Dr. Sharma to have cosigned PA Callahan's notes and approved the prescription of Soma.
Dr. Garbitelli stated that prescribing Soma to a patient with a history of alcoholism is within the standard of care, is not a contraindicated medication, and is a better alternative than narcotic medications. The decedent's affect was appropriate, and he reported doing very well with his plan of abstinence. Prescribing Soma 350mg four times a day for a ten day period, or longer is within the standard of care for a patient such as decedent with the complaints he had. Dr. Garbitelli stated that prescribing Soma in the manner and dose prescribed did not cause or contribute to the death of the decedent, and had the decedent taken the Soma as prescribed, it would not have resulted in his death, even when taken in conjunction with alcohol.
In opposition to defendants' respective motions, the plaintiff submitted the unredacted affirmation of a physician who is licensed to practice medicine in New York State, who is board certified in general surgery and is a former director of an emergency unit in New York. Plaintiff's expert treated hundreds of overdose cases, many of which resulted in death attributed to the deadly combination of alcohol and drugs. Plaintiff's expert set forth the materials and records which he/she reviewed, and stated that they provide a complete picture of the relevant treatment by the defendants and the circumstances surrounding the decedent's death. He continued that Christopher Bee, a then 49 year old male, died on March 3, 2011. For the approximately four year period preceding that date, Mohan Sharma, M.D. was the decedent's primary care physician, and during that time, Dr. Sharma became aware that the decedent was an alcoholic.
The plaintiff's expert continued that on no less than ten occasions between August 2008 and May 2010, Dr. Sharma or a member of his staff made office notes to the effect that the patient was an abuser of alcohol. He set forth those dates which indicated either, ETOH abuse as the chief complaint; ETOH dependency; chronic alcoholism-needs to see psychiatry; refer to psychiatry re: addiction; chronic ETOH abuse-all complications discussed; ETOH...heavy drinking; broke rib due to drinking very heavily-went into rehab. Notwithstanding the documented history of alcoholism, Dr. Sharma's physicians assistant, Cindy Callahan, prescribed 40 tablets of Soma (Carisoprodol) to the decedent on February 19, 2011 in response to his complaints of musculoskeletal pain. At the time, Soma was available in 250 mg and 350 mg tablets, and the higher dosage was prescribed. Another prescription for 40 tablets of Soma 350 mg was issued by PA Callahan on February 26, 2011 when the decedent's complaints persisted. On each occasion, Dr. Sharma countersigned PA Callahan's office notes, thus communicating his approval of, and participation in the treatment plan.
The plaintiff's expert stated that Soma is a potent muscle relaxant, which has been available since 1959, but in January 2012, the FDA categorized it as a Schedule IV controlled substance under the Federal Controlled Substances Act in recognition of its potential for dependence and abuse. The manufacturer's recommendation has long been that Soma's use should be limited to short periods of no more than 2-3 weeks. He continued that Soma is a central nervous system depressant with significant sedative properties, and when taken to excess, ultimately impairs basic metabolic functions like respiration and heart rate. He stated that it is well known that Soma's central nervous system depressant effects are accentuated when taken in combination with alcohol.
The plaintiff's expert stated that when the decedent was found in an unresponsive state on March 3,2011, and was rushed to the emergency department at Southampton Hospital, resuscitation efforts were not successful, and he was pronounced dead soon after his arrival. An autopsy was performed and revealed the presence of both Soma and alcohol in the decedent's system. Dr. Sims-Childs, Suffolk County Medical Examiner, described the decedent's cause of death as "acute intoxication due to the combined effects of carisoprodol and ethanol."
Plaintiff's expert opined that the defense contends that a clinician is justified in prescribing Soma to a known alcoholic provided that he or she is first observed and after reasonable inquiry into the patient's current state of sobriety is made, and that this was done before prescribing Soma to the decedent. The plaintiff's expert disagrees with defendants' experts on this issue. He opined within a reasonable degree of medical certainty that, in the particular clinical setting of Mr. Bee, the prescription of Soma to the decedent was a departure from the standard of care.
Plaintiff's expert continued that the decedent's history of alcohol use and abuse was well-documented over the course of many visits. There had been multiple admissions to treatment centers for acute episodes of recurrent alcoholism, as recently as the summer of 2010. The decedent was a well educated individual, with a Doctor of Chiropractic degree, and felt a special shame about his disease. The plaintiff's expert added that it is very common for alcoholics to conceal their illness, and they are often functional in the outside world and the disease is known only to a few intimates. Clinicians should be aware of this and must see through the superficial appearance of normalcy. A doctor or a PA should always err on the side of assuming ongoing disease. Both Dr. Sharma's and PA Callahan's conclusions that the decedent was fully recovered from his alcoholism as of February 2011 was obviously erroneous. In light of the decedent's documented history, such a conclusion was also a tragic departure from good and accepted medical practice and a proximate cause of the decedent's death.
While it is possible for an alcoholic to sustain a painful injury, stated plaintiff's expert, the prescription options are myriad and need not include a central nervous system depressant like Soma. He stated there are many other medications that could have been prescribed which did not present the special risks when taken in combination with alcohol. He continued, that to prescribe Soma in the decedent's clinical setting was a departure from good and accepted medical practice, and a proximate cause of the decedent's death. He further stated that the defendants' experts improperly minimized the role of alcohol in the decedent's death. The autopsy clearly established that there was proportionately more Soma than alcohol in the decedent's system. The blood alcohol concentration found in the decedent was .10 % and the legal standard for intoxication in New York is .08%, demonstrating that the decedent was well inebriated with alcohol as well as intoxicated with Soma. The plaintiff's expert stated that he agrees with the opinion by the medical examiner that the decedent's death was due to the combined effects of Soma and alcohol.
Based upon the foregoing, it is determined that the plaintiff's expert has raised factual issues which preclude summary judgment from being granted to the defendants. These issues include, among other things, whether the defendants knew or should have known that the decedent was engaging in the use of alcohol, whether he was hiding such use from them, whether it was a departure from the good and accepted standards of care for Soma to be prescribed in light of the decedent's history of alcoholism, whether other medication could have been prescribed instead, and whether decedent's death was due to the combined effect of alcohol and Soma. Dated: 8/12/14
/s/_________
HON. WILLIAM B. REBOLINI, J.S.C.