Opinion
No. 46252/07.
2011-09-22
Francisco CONTRERAS, Plaintiffs, v. Babatunde ADEYEMI, M.D., et al., Defendants.
BERT A. BUNYAN, J.
The following papers numbered 1 to 15 read on thees motions:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1–8
Opposing Affidavits (Affirmations) 9–10 Reply Affidavits (Affirmations) 11–15 Affidavit (Affirmation)
Other Papers
Upon the foregoing papers, by separate motions, defendants Babatunde Adeyemi, M.D.; Arvind Hazari, M.D.; and Wyckoff Heights Medical Center (Wyckoff) move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff Francisco Contreras and all cross-claims against them.
Facts and Procedural Background
Plaintiff commenced this medical malpractice action seeking to recover damages that were allegedly sustained as a result of defendants' failure to timely diagnose and treat him when he presented to the emergency room of Wyckoff on June 27, 2007 with complaints of acute stomach pains. Briefly stated, plaintiff claims that defendants failed to timely diagnosis appendicitis; allowed his appendix to rupture; allowed him to remain in the emergency room for an extended period of time; caused him to undergo a more complicated surgical course; and caused him to contract sepsis, peritonitis and a pulmonary embolism.
It is undisputed that plaintiff first presented to the emergency room at Wyckoff on June 25, 2007, complaining of pain on the right side of his abdomen, which had been present for two days. After waiting several hours, he left without being treated, alleging that the pain became less severe. He took pills that a friend gave him and returned to work the next day. On June 27, 2007, plaintiff arrived at the emergency room by ambulance shortly after 10:00 P.M. When he was seen by a triage nurse at 10:20 P.M., he complained of stomach pain and black stool the previous night; he was noted to be hypotensive and had blood pressure readings of 84/58 and 90/65, a temperature of 100.3, a respiration rate of 20 and a pulse of 101. The nurse informed Dr. Adeyemi about plaintiff's condition and at 11:15 P.M., the doctor ordered chest and abdominal x-rays, a blood work and IV hydration. At 11:20 P.M., plaintiff was sent to radiology.
Dr. Adeyemi evaluated plaintiff at 12:30 A.M. on June 28, 2007 and reviewed his blood work, noting that plaintiff had elevated BUN and creatinine levels; he ordered a CT scan of plaintiff's abdomen. Plaintiff was given oral contrast to drink and the scan was performed at 2:52 A.M. Dr. Adeyemi received a preliminary report by telephone from NightHawk Radiology Services (NightHawk) at 3:30 A.M.
The preliminary report noted that underlying acute appendicitis must be considered; the final report stated that the findings were highly consistent with perforated acute appendicitis causing secondary small bowel obstruction. After getting the results, Dr. Adeyemi diagnosed plaintiff as suffering from acute appendicitis and requested a surgical consult. Plaintiff was admitted to the surgical service and antibiotics were started.
Dr. Hazari alleges that NightHawk is an overseas company that interprets CT scans when Wyckoff's in-house radiology department is closed.
Plaintiff was seen by surgery between 4:30 and 5:00 A.M. and was transferred out of the Emergency Department shortly thereafter. Between 7:00 and 7:30 A.M., Dr. Hazari first saw plaintiff; his examination revealed that plaintiff was tender and flushed and a review of the laboratory tests revealed an elevated white blood cell count. When Wyckoff's radiology department opened between 8:30 and 9:00 A.M., Dr. Hazari discussed the CT results that were previously reported by NightHawk. Plaintiff was brought to an operating room at approximately 12:00 P.M., when Dr. Hazari advised him that there was a high risk of complications because his appendix had ruptured. Plaintiff's records indicate that the incision time was 2:20 P.M., that a liter of pus was removed from his peritoneal cavity and a lysis of adhesions had to be performed. After removing the appendix and cleaning out the peritoneal cavity, Dr. Hazari wrote post-operative orders. Thereafter, when plaintiff complained of pain in his chest, consultations were ordered. On July 7, 2007, a CT scan was performed, which revealed a small pulmonary embolism; plaintiff was treated with anti-coagulation therapy.
Plaintiff was ultimately discharged from Wyckoff on July 17, 2007.
Defendants' Contentions
Dr. Adeyemi
In support of his motion for summary judgment, Dr. Adeyemi, the attending physician who treated plaintiff while he was in the emergency room, relies upon plaintiff's medical records, the deposition testimony and an affirmation from Dr. Gregory I. Mazarin, a physician who is board certified in emergency medicine, to argue that he did not breach any duty of care owed to plaintiff and that nothing that he did was the proximate cause of any the injuries allegedly sustained by plaintiff. In so asserting, Dr. Mazarin also notes that Dr. Adeyemi correctly diagnosed plaintiff within three hours of seeing him.
More specifically, Dr. Mazarin alleges that when Dr. Adeyemi became involved in plaintiff's care, he ordered the appropriate tests, i.e., an abdominal x-ray and blood work at 11:15 P.M. and an abdominal CT scan when he examined plaintiff at 12:30 A.M. Dr. Mazarin notes that two hours are required to prepare a patient for a CT scan because it is necessary for the contrast material to opacify. Because no radiologist is on staff at night, the results of the CT scan were communicated to Dr. Adeyemi at 3:30 A.M., which is a reasonable time frame. Upon receiving the results of the CT scan, Dr. Adeyemi properly started plaintiff on antibiotics and contacted surgery. Once surgery was contacted, Dr. Adeyemi argues that he cannot be held accountable for any delays in scheduling and/or preforming the surgery.
Dr. Mazarin also opines that it is clear from plaintiff's medical records that his appendix perforated before his arrival at Wyckoff on June 27, 2007 with complaints of abdominal pain for three days, since he had previously presented to the emergency room on June 25, 2007, when he left without being treated. Dr. Mazarin is also of the opinion that plaintiff's pain; low blood pressure; and renal failure, as evidenced by his BUN and creatinine levels, also suggest that plaintiff arrived at Wyckoff on June 27, 2007 with a perforated appendix. Thus, any delay in diagnosis could not have been a proximate cause or a substantial factor in plaintiff's condition. Dr. Mazarin further notes that cases of perforated appendicitis are often not taken to the operating room immediately.
Dr. Hazari
In support of his motion for summary judgment, Dr. Hazari, the surgeon who operated on plaintiff, relies upon plaintiff's medical records, the deposition testimony and an affirmation from Dr. Steven I. Friedman, a physician who is a board certified vascular surgeon, to argue that he did not breach any duty of care owed to plaintiff and that nothing that he did was the proximate cause of any of the injuries allegedly sustained by plaintiff. More specifically, Dr. Friedman asserts that when plaintiff presented to Wyckoff on June 27, 2007, his appendix had already ruptured and his vital signs and laboratory studies were abnormal, revealing that he had an infection, was dehydrated and had elevated kidney functions; plaintiff also reported blood in his stool. Dr. Friedman goes on to allege that after a CT scan and other studies had been done and antibiotics were administered, Dr. Hazari performed an appendectomy in accordance with good and accepted medical practice. Thereafter, plaintiff developed a small pulmonary embolism that was properly treated with anti-coagulation therapy.
In addressing plaintiff's specific claims against Dr. Hazari, Dr. Friedman alleges that although plaintiff complains that he has a scar, the necessary surgical procedure could not be performed without cutting the skin, which would necessarily result in a scar. Dr. Friedman further opines that the surgical procedure would not cause impotence and/or constipation, as claimed by plaintiff. Finally, Dr. Friedman is of the opinion that Dr. Hazari did not cause plaintiff's embolism, since an embolism is a complication that can occur in patients with a ruptured appendix.
Dr. Friedman thus concludes that any adverse result caused by plaintiff's ruptured appendix is directly attributable to his failure to be seen by hospital staff when he first presented to Wyckoff on June 25, 2007. Accordingly, by the time that plaintiff was seen by Dr. Hazari, his appendix had already ruptured and his vital signs and blood values were indicative of an ongoing infectious process. Dr. Friedman is also of the opinion that plaintiff was not able to safely undergo surgery until he was stabilized and hydrated and that it was appropriate for Dr. Hazari to consult with an in-house radiologist before performing the subject procedure.
Wyckoff
In support of its motion, Wyckoff argues that plaintiff's claims as against it are premised upon its vicarious liability for the alleged malpractice of Drs. Adeyemi and Hazari, since there has been no independent or additional claims of negligence on its part; Wyckoff admits that it would be liable for any alleged malpractice committed by Dr. Adeyemi and/or Dr. Hazari pursuant to Mduba v. Benedictine Hospital (52 A.D.2d 450 [1976] ). Wyckoff accordingly relies upon the arguments advanced by the doctors to argue that if they are entitled to summary judgment, it is entitled to the same relief. Wyckoff further avers that if its motion is deemed to be untimely, it has good cause for the delay, i.e., it was not served with the motions for summary judgment upon which it relies within the 60–day period during which a timely motion for summary judgment could be made pursuant to the court rules.
Plaintiff's Contentions
In opposition to defendants' motions, plaintiff relies upon his medical records, the deposition testimony and the opinion of his expert, who is board certified in general and thoracic surgery, to argue that defendants failed to timely diagnose and treat his condition; the name of plaintiff's expert has been redacted pursuant to CPLR 3101(d)(1)(i) ( see generally Marano v. Mercy Hosp., 241 A.D.2d 48 [1998] ). The Doctor contends that defendants' actions resulted in surgery being performed on plaintiff approximately 16 hours after he presented to the emergency room, instead of on an emergent basis, which resulted in serious internal compromise including the unfettered progression of infection, peritonitis, sepsis, a complicated post-operative course and residual sequelae. The Doctor is also of the opinion that defendants' conduct places plaintiff in a position where he will be more susceptible to future bowel adhesions and pulmonary embolisms which may require medication, in addition to having caused scarring and cosmetic deformities.
More specifically, the Doctor is of the opinion that it was a gross departure from accepted standards of care on Wyckoff's part to fail to promptly provide a final review of the x-ray that was taken of plaintiff's abdomen at 11:20 P.M. on June 27, 2007; instead, the report was not dictated until 9:16 A.M. on June 28, 2007 and was not transcribed until 1:49 P.M. The Doctor also contends that since the x-ray was interpreted as being a normal study, plaintiff's appendix had not perforated before he presented to the emergency room on June 27, 2007, but instead ruptured between the time the x-ray was taken at 11:20 P.M. on June 27, 2007 and the time that the CT scan was taken at 2:52 A.M. on June 28, 2007.
The Doctor further opines that Dr. Adeyemi did not conduct the appropriate tests when he examined plaintiff. First, plaintiff argues that Dr. Adeyemi did not have a report for the x-ray when he examined plaintiff. The Doctor also asserts that Dr. Adeyemi should have performed a psoas test and/or Rovsing's sign test. In addition, the Doctor argues that Dr. Adeyemi ordered a CT scan with oral contrast, and not with IV contrast, which rendered the test less effective, apparently believing that the use of an IV agent was dangerous to plaintiff; the Doctor disagrees with this assessment.
The Doctor also notes that the preliminary report of the CT scan prepared by Dr. Heller of NightHawk indicated that plaintiff had an acutely inflamed and fluid filled appendix. In contrast, his interpretation of the CT scan indicates that it revealed a ruptured appendix, which finding is supported by the final report, which states that the scan was highly consistent with a perforated appendix; the final report, however, was not dictated until 4:20 P.M. on June 28, 2007, after the surgery had been performed. The Doctor contends that the failure to apprise the treating physicians that the CT scan that was taken at 2:52 A.M. indicated that plaintiff's appendix had ruptured, that there was a small bowel obstruction and that there was free fluid in the abdomen is a significant departure from accepted medical care. The Doctor further alleges that if the CT scan had been read properly and peritonitis had been detected, Drs. Adeyemi and Hazari should have been aware of plaintiff's need for immediate surgery, which would have spared him over 14 hours of purulent material being spilled into his abdomen. Additionally, if the treating physicians had been aware of the seriousness of plaintiff's condition, good and accepted medical practice would have required ordering further CT testing with an appropriate contrast or an ultrasound test to visualize the true condition of the appendix. The Doctor claims that since NightHawk acted as an agent for Wyckoff, the hospital can be held liable for NightHawk's negligence in reading the CT scan. The Doctor also notes that Wyckoff fails to submit an affidavit from an expert addressing these alleged departures from accepted standards of medical care.
The Doctor further claims that although Dr. Hazari diagnosed plaintiff as suffering from appendicitis with peritonitis when he examined him at 7:30 A.M., he waited until approximately 8:30 to 9:00 A.M. to discuss the results of the CT scan with in-house radiologists and that he did not begin operating on plaintiff until 2:20 P.M. The Doctor thus concludes that Dr. Hazari's delay resulted in the need for a more complex surgery due to the presence of increased infection, peritonitis and sepsis, which allowed plaintiff's condition to further deteriorate due to a high chance of developing wound infection, abscesses, adhesions and fecal fistula. In addition, the Doctor contends that defendants failed to consider and commence alternative courses of treatment, such as using heavy doses of antibiotics and draining the pus through the rectum.
Finally, the Doctor asserts that Wyckoff departed from accepted medical practice in failing to take appropriate precautions to prevent plaintiff from developing a pulmonary embolism. More specifically, the Doctor alleges that plaintiff should have been prescribed a perioperative low-dose of heparin or other anticoagulant and that he should have been ambulating sooner than two and one-half weeks after the surgery, or at least received physical therapy while confined to bed to increase his circulation.
Defendants' Reply
Dr. Adeyemi
In reply, Dr. Adeyemi argues that plaintiff has improperly asserted a new theory of liability for the first time in opposition to the motions for summary judgment, i.e., plaintiff now contends that Dr. Adeyemi should have performed a psoas sign and a Rovsing's sign test as part of his examination of plaintiff and that he improperly ordered a CT scan with oral contrast, rather than with IV contrast. Dr. Adeyemi alleges that since these theories of negligence were not set forth in plaintiff's bill of particulars, he cannot now present these arguments in opposition to a motion for summary judgment.
In reliance upon a supplemental affidavit from Dr. Mazarin, Dr. Adeyemi argues that his failure to perform a psoas sign test, a Rovsing's sign test and a CT scan with IV contrast and whether the CT scan revealed a ruptured appendix or an acute appendix do not raise material issues of fact. In this regard, he argues that even if these tests had been done and/or the scan was read as finding a ruptured appendix, the applicable standard of care would be to consult with surgery and to start plaintiff on antibiotics. Since Dr. Adeyemi did so, the failure to perform and/or properly interpret these tests is irrelevant. Dr. Mazarin also points out that the psoas and Rovsing's sign tests were more widely used before CT scans were available. Dr. Mazarin is also of the opinion that a CT scan with IV contrast was contra-indicated, since the test has very limited utility in the evaluation of appendicitis and plaintiff was at risk for permanent kidney damage. Finally, since the crux of plaintiff's case is that surgical intervention should have been provided sooner, a surgical consult could not be completed until the results of the CT scan were returned and a diagnosis was made. Herein, it is undisputed that Dr. Adeyemi ordered a CT scan as soon as he examined plaintiff and requested a surgical consult as soon as he received the results, which was done less than three hours after he first saw plaintiff.
Dr. Adeyemi also argues that plaintiff fails to establish causation, first contending that plaintiff's expert's opinions lack a proper foundation, since he or she fails to demonstrate that he or she possesses the requisite skill, training, education, knowledge or experience to render an opinion. More specifically, plaintiff's expert does not allege that he or she is currently practicing medicine, nor does he or she allege that he or she is familiar with the standard of care that existed in emergency rooms in 2007. In addition, the expert is a surgeon, not an emergency room physician like Dr. Adeyemi.
Dr. Mazarin then argues that any delay in diagnosing a ruptured appendix could not have been a proximate cause of plaintiff's outcome, since plaintiff arrived at the emergency room on June 27, 2007 with a ruptured appendix. This conclusion is allegedly evidenced by the facts that he had presented to the emergency room two days earlier with the same symptoms and his low blood pressure and renal failure are consistent with generalized sepsis, which indicated that his infection had been spreading for days. Dr. Mazarin also is of the opinion that reliance upon the x-ray to establish that plaintiff's appendix had not yet ruptured when he presented to the emergency room on June 27, 2007 is unpersuasive, since an x-ray has extremely limited utility in diagnosing appendicitis. Finally, he notes that it is well known that there is short window of time from the onset of appendicitis to when the appendix ruptures.
Dr. Adeyemi also argues that he cannot be held vicariously liable for any malpractice allegedly committed by Dr. Hazari or any delay in performing the surgery, since he did nothing more than to refer plaintiff to Dr. Hazari and he had no further contact with Dr. Hazari or involvement in plaintiff's treatment after he made the referral.
Dr. Hazari
In reply, in reliance upon a supplemental affidavit from Dr. Friedman, Dr. Hazari contends that plaintiff's expert misstates material medical facts, fails to apply the appropriate standard of care, bases his opinions on speculation and fails to link the claimed departures to the injuries allegedly sustained by plaintiff in an attempt to establish that Dr. Hazari departed from good and accepted standards of medical care. As Dr. Mazarin points out, Dr. Friedman also alleges that psoas and Rovsing's sign tests have not been utilized in more than 40 years, since CT scans were invented. Similarly, the procedure of draining abscesses through plaintiff's rectum is outdated.
Dr. Friedman further opines that the x-ray taken of plaintiff's abdomen is not conclusive evidence that plaintiff's appendix had not ruptured. Also, conducting a CT scan using an IV contrast would have been a gross departure for a health care provider, given plaintiff's severe dehydration, since such administration could have resulted in renal failure or tubular necrosis. Reliance upon the preliminary report of the CT scan to support the conclusion that plaintiff's appendix had not ruptured before he presented to the emergency room on June 27, 2007 is also misplaced, since the final report indicates findings that are highly consistent with a perforated appendix. Similarly, Dr. Friedman alleges that it is impossible for a liter of pus to accumulate in plaintiff's abdomen between 11:20 P.M. on June 27, 2007 and 2:52 A.M. on June 28, 2007. Moreover, purulent material does not drain from the appendix when it ruptures; rather, after an appendix perforates, white blood cells and fluid pour into the area and pus develops over time as a result of an inflammatory response. Dr. Friedman thus opines that since plaintiff's appendix had already ruptured when he presented to the emergency room on June 27, 2007, time was not of the essence, since plaintiff's condition had to be stabilized before surgery. Finally, Dr. Friedman notes that plaintiff's orders indicate that heparin was administered to plaintiff after surgery to prevent the development of an embolism. Dr. Hazari also asserts that if his motion is denied, he will be requesting a hearing pursuant to Frye v. United States (293 F 1013 [DC Cir1923] ) to challenge the assertions of plaintiff's expert.
Wyckoff
In its reply affirmation, Wyckoff again argues that there is no basis upon which its motion for summary judgment should be denied if the motions made by Drs. Adeyemi and Hazari are granted. Wyckoff further alleges that it cannot be held liable to plaintiff based upon claims of malpractice as premised upon the actions of plaintiff's treating physicians and/or the radiologists, since they are separate entities and not employees of Wyckoff. From this Wyckoff argues that it follows that any delay in reading the x-ray or CT scan cannot be attributed to it. Moreover, Dr. Adeyemi's deposition testimony establishes that he personally reviewed the x-ray because there are no radiologists on duty at night. Further, since the preliminary findings of the CT scan were made known to Dr. Adeyemi at3:30 A.M. on June 28, 2007, any delay in rendering the final report did not impact upon the care or treatment provided to plaintiff, because after getting the results, Dr. Adeyemi called for a surgical consult. Hence, the time that the final report was dictated is without relevance, since Dr. Hazari saw plaintiff between 7:00 and 7:30 A.M. and diagnosed him with having a perforated appendicitis and peritonitis and ordered antibiotics and surgery. Further, there can be no claim that Dr. Adeyemi delayed surgery, since he was the emergency room doctor and not the surgeon.
Wyckoff also argues that even assuming that the radiologists were negligent, plaintiff has not asserted such a claim until he so argued in opposition to the motions for summary judgment. Moreover, plaintiff has not sued NightHawk or any of the radiologists. In addition, even if any negligence can be found, plaintiff fails to establish that such negligence was material in causing his alleged injuries.
Wyckoff also contends that there is no merit to plaintiff's claim that it failed to take the proper steps to prevent an embolism. In the first instance, Wyckoff argues that plaintiff's treating physician made the decision with regard to what prophylactic treatments would be administered and it cannot be held vicariously liable for treatment recommended or not recommended by plaintiff's physicians. Wyckoff also contends that a review of plaintiff's records indicates that heperin was administered.
Discussion
As a threshold issue, the court declines to find that Wyckoff's motion for summary judgment is untimely. In so holding, the court notes that it has discretion to consider an untimely motion that seeks relief “nearly identical” to the relief sought by a timely motion without a showing of good cause in the interest of judicial economy ( see generally Fahrenholz v. Security Mut. Ins. Co., 32 AD3d 1326, 1328 [2006];Altschuler v. Gramatan Mgt., 27 AD3d 304, 304 [2006] );cf. Filannino v. Triborough Bridge and Tunnel Auth., 34 AD3d 280, 282 [2006] ). Here, since Wyckoff's motion is predicated upon its claim that it cannot be held vicariously liable for the alleged malpractice of Drs. Adeyemi and Hazari if the doctors' motions are granted, the court finds that Wyckoff is seeking identical relief.
Turning to the merits of defendants' motions, the court recognizes that “[t]he requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate cause of injury or damage” (Graham v. Mitchell, 37 AD3d 408, 409 [2007];see also Stukas v. Streiter, 83 AD3d 18, 27 [2011] ). Thus, “[o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby' “ (Chance v. Felder, 33 AD3d 645, 645 [2006], quoting Williams v. Sahay, 12 AD3d 366, 368 [2004];see also Rebozo v. Wilen, 41 AD3d 457, 458 [2007];Hernandez–Vega v. Zwanger–Pesiri Radiology Group, 39 AD3d 710, 711 [2007];Geller v. Waldbaum, 33 AD3d 855, 855–856 [2006];Johnson v. Queens–Long Is. Med. Group, P.C., 23 AD3d 525, 526–527 [2005] ).
In this case, the court finds that the affidavits of Drs. Mazarin and Friedman are sufficient to make a prima facie showing that Drs. Adeyemi and Hazari did not depart from accepted standards of medical care or proximately cause plaintiff's alleged injuries, so that neither can be held liable. More specifically, the affidavits establish that Dr. Adeyemi properly examined plaintiff; started an IV and ordered an x-ray, blood work and a CT scan; and that after reviewing the test results, diagnosed plaintiff as suffering from appendicitis and requested a surgical consult. Similarly, the affidavits establish that Dr. Hazari examined plaintiff, discussed his CT scan results with an in-house radiologist, performed surgery on plaintiff and provided appropriate follow-up care. Thus, Wyckoff has similarly made a prima facie showing that it cannot be held vicariously liable for any malpractice allegedly committed by Drs. Adeyemi and Hazari.
Accordingly, the burden of proof shifts to plaintiff to “submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury” (Flanagan v. Catskill Regional Med. Ctr., 65 AD3d 563, 565 [2009];see also Rosenman v. Shrestha, 48 AD3d 781, 784 [2008];Rebozo, 41 AD3d at 458;Johnson, 23 AD3d at 526). “General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat [a] defendant physician's summary judgment motion” (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325[1986] ). Further, summary judgment is inappropriate in a medical malpractice action where the parties present conflicting opinions by medical experts ( see e.g. Berger v. Hale, 81 AD3d 766, 766 [2011];Adjetey v. New York City Health & Hosps. Corp., 63 AD3d 865, 865 [2009];Shields v. Baktidy, 11 AD3d 671, 672 [2004] ).
The court finds that the affidavit submitted by plaintiff's expert is adequate to raise issues of fact with regard to whether defendants departed from accepted medical practice and that the departures were a competent producing cause of plaintiff's claimed injuries. More specifically, the affidavit raises an issue of fact with regard to whether the hospital's failure to properly advise Drs. Adeyemi and Hazari that the CT scan was consistent with a ruptured appendix at 3:30 A.M. on June 28, 2007 and whether defendants' delay of 16 hours between the time that plaintiff arrived at the emergency room until surgery was commenced at 2:20 P.M. worsened his condition and infections, thereby complicating his surgery and recovery.
The court further finds that defendants' conclusory assertions as raised in their reply papers are insufficient to refute plaintiff's claims as a matter of law. In the first instance, the court notes that although both Drs. Mazarin and Friedman agree that plaintiff's appendix had ruptured before he presented to the emergency room on June 27, 2007 and that neither an x-ray nor a CT scan is particularly useful in diagnosing a ruptured appendix, their opinion that both Dr. Adeyemi and Dr. Hazari did not depart from accepted medical practice in relying upon these tests and delaying surgery 16 hours fails to even address plaintiff's claim that proper testing was not done in a timely fashion. Moreover, defendants offer no basis to support the contention that time was not of the essence in operating on plaintiff, particularly in view of the fact that they are of the opinion that plaintiff's appendix had ruptured before he presented to the emergency room on June 27, 2007, nor does the conclusory assertion that a patient suffering from a perforated appendix is often not taken to the operating room immediately sufficient to warrant a finding, as a matter of law, that defendants' failure to perform surgery on plaintiff sooner complies with accepted standards of medical care.
Similarly, defendants' experts fail to offer any test results that would allow the court to determine that plaintiff's condition had not been sufficiently stabilized for him to undergo surgery before 2:20 P.M. on June 28, 2007, nor do defendants offer any basis to refute plaintiff's claim that his surgery and recovery were complicated by the progression of his infections while he was awaiting surgery. In addition, although defendants alleges that a liter of pus could not accumulate between 11:20 P.M. on June 27, 2007 and 2:52 A.M. on June 28, 2007, they fail to offer any opinion with regard to how long it would take this amount of pus to accumulate and whether the delay in operating is a factor contributing to so significant an accumulation. Finally, although defendants argue that plaintiff was given post-operative heperin to protect against the development of embolisms, defendants do not address plaintiff's claim that he should have been ambulating sooner after the surgery or, at a minimum, been receiving physical therapy to prevent the embolisms.
Inherent in this holding is the court's rejection of Dr. Adeyemi's assertion that the affidavit submitted by plaintiff's expert should not be considered. In this regard, it is well settled that “an expert witness must possess the requisite skill, training, knowledge, or experience to ensure that an opinion rendered is reliable” (LaMarque v. North Shore Univ. Hosp., 227 A.D.2d 594, 594 [1996], citing Matott v. Ward, 48 N.Y.2d 455 [1979] ). It is equally well settled that “[a] physician need not be a specialist in a particular field in order to qualify as a medical expert. Rather, any alleged lack of knowledge in a particular area of expertise is a factor to be weighed by the trier of fact that goes to the weight of the testimony” (Walsh v. Brown, 72 AD3d 806, 807 [2010] [internal citations omitted] ). “Thus, where a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered” (Behar v. Coren, 21 AD3d 1045, 1047 [2005], citing Romano v. Stanley, 90 N.Y.2d 444, 451–452 [1997];Nangano v. Mount Sinai Hosp., 305 A.D.2d 473 [2003] ). While defendants clearly disagree with the opinions offered by plaintiff's expert, the court finds that the summary of his or her qualifications is sufficient to meet this standard and to establish a foundation to support the reliability of his or her opinions.
The court further finds Dr. Adeyemi's and Wyckoff's contention that plaintiff is improperly attempting to interpose new theories of liability in opposition to the summary judgment motions to be lacking in merit. In addressing these arguments, it must be recognized that the purpose of a bill of particulars is to amplify pleadings, limit proof and prevent surprise at trial, not to provide evidentiary material ( see generally Moran v. Hurst, 32 AD3d 909, 912 [2006];Grcic v. Peninsula Hosp. Ctr., 110 A.D.2d 625, 626 [1985];Cirelli v. Victory Mem. Hosp., 45 A.D.2d 856, 856–857 [1974] ). Further, the need to know specifics is especially necessary in malpractice actions ( see Bellen v. Baghei–Rad, 148 A.D.2d 827, 828 [1989] ). Thus, responses to a demand for a bill of particulars must clearly detail and distinguish the specific acts of negligence attributable to each defendant ( see Miccarelli v. Fleiss, 219 A.D.2d 469, 470 [1995];Berger v. Feinerman, 203 A.D.2d 407, 408 [1994] ). Although defendants are entitled to a general statement sufficient to narrow the issues of their alleged negligence for discovery and trial, plaintiff is not required to provide “evidentiary material or expert proof” (Khoury v. Chouchani, 27 AD3d 1071, 1072 [2006], citing Graves v. County of Albany, 278 A.D.2d 578, 578 [2000] ). Similarly, it is well settled that “[t]here is no need for a plaintiff to set forth the manner in which the physician failed to act in accordance with good and accepted medical practice, since a physician is chargeable with knowing those medically accepted standards applicable to the proper care and treatment of the plaintiff” (Toth v. Bloshinsky, 39 AD3d 848, 849 [2007], citing Dellaglio v. Paul, 250 A.D.2d 806 [1998] ).
In the bill of particulars provided in response to Dr. Adeyemi's demand, plaintiff included claims that Dr. Adeyemi failed “to timely perform tests, including but not limited to x-rays, CT Scans and sonograms;” failed “to employ due, reasonable, proper and appropriate skill and care in the examination, treatment and management of the plaintiff;” failed “to perform a proper, thorough, and accurate physical examination of plaintiff;” and failed “to afford and render him proper, appropriate, timely and indicated medical and diagnostic care.” The court thus finds that the statements are sufficiently informative to apprise Dr. Adeyemi that plaintiff was claiming that the tests needed to diagnose and treat him were not conducted, so that plaintiff is not now introducing new theories of recovery in arguing that a psoasa sign test, a Rovsing's sign test and a CT scan with an IV contrast should have been performed.
Nonetheless, the court finds that no liability can be premised upon the failure to perform these tests, except to the extent that the performance of any such test would have allowed defendants to make an earlier diagnosis and hence perform surgery sooner, since plaintiff alleges that these tests should have been conducted to enable defendant to diagnose appendicitis. It is not disputed, however, that both Drs. Adeyemi and Hazari so diagnosed plaintiff in reliance upon their examination of him, the x-ray and the CT scan with oral contrast. Plaintiff fails to establish that the failure to conduct these tests caused the injuries that he alleges that he sustained and accordingly fails to establish that defendants' conduct in not conducting these tests caused the injuries that he alleges he sustained.
Wyckoff's assertion that plaintiff should not be permitted to interpose a claim that the radiologists were negligent is similarly found to be without merit for the same reasons. In the bill of particulars provided in response to Wyckoff's demand, plaintiff included claims that Wyckoff failed “to timely properly read and/or interpret those tests that were performed” and failed “to properly and carefully interpret those tests that were taken.” These claims are broad enough to appraise Wyckoff that plaintiff was claiming that both the x-ray and the CT scan that were taken were not timely and/or properly interpreted.
In this regard, the court rejects Wyckoff's assertion that it cannot be held liable for any alleged negligence on the part of the radiologists. In addressing this issue, the court first recognizes that “[u]nder the doctrine of respondeat superior, a hospital may be vicariously liable for the medical malpractice of physicians who act in an employment or agency capacity' “ (Mendez v. White, 40 AD3d 1057, 1057 [2007], quoting Boone v. North Shore Univ. Hosp., 12 AD3d 338, 339 [2004] ). It is also well settled that “[a]lthough a hospital or other medical facility is liable for the negligence or malpractice of its employees, that rule does not apply when the treatment is provided by an independent physician, as when the physician is retained by the patient itself” (Hill v. St. Clare's Hosp., 67 N.Y.2d 72, 79 [1986] [citations omitted] ). As exceptions to this rule, however, a hospital may be held liable for the negligence of a non-employee physician under principles of actual agency when the hospital exercises control over the physician ( see e.g. Mendez, 40 AD3d at 1057–1058;Mduba, 52 A.D.2d at 450), or ostensible agency, as when a patient looks to a hospital for treatment rather than from any particular physician and the patient reasonably believes that a doctor rendering care therein has been provided by the hospital ( Hill, 67 N.Y.2d at 79–80;Mendez, 40 AD3d at 1058;Rivera v. County of Suffolk, 290 A.D.2d 430, 432 [2002] ). Stated differently, “a hospital cannot ordinarily be held vicariously liable for the malpractice of a private attending physician who is not its employee unless a patient comes to the emergency room seeking treatment from the hospital, and not from a particular physician of the patient's choosing, and there is created an apparent or ostensible agency by estoppel” (Suits v. Wyckoff Hgts. Med. Ctr.,, 84 AD3d 487, 488 [2011], citing Schultz v. Shreedhar, 66 AD3d 666, 666 [2009];Salvatore v. Winthrop Univ. Med. Ctr., 36 AD3d 887, 888 [2007] ). As a final matter, the court notes that, when a defendant hospital moves for summary judgment in a malpractice action, it is not enough for the hospital to produce evidence that the physician who allegedly rendered negligent care within the hospital was not its employee. Rather, the hospital must also submit evidence demonstrating that the physician was not its actual or ostensible agent (Schacherbauer v. University Assoc. in Obstetrics & Gynecology, P.C., 56 AD3d 751, 752 [2008];Mendez, 40 AD3d at 1057–1058).
In this case, it is not disputed that plaintiff presented to the emergency room at Wyckoff and that Wyckoff provided the doctors who treated him and read his test results, including the radiologists. Wyckoff makes no showing that Dr. Adeyemi, Dr. Hazari, the radiologists who read the x-ray and CT scan or the doctors who treated plaintiff after his surgery were plaintiff's private treating physicians. Thus, at a minimum, there is a question of fact with regard to whether plaintiff reasonably believed that the doctors and radiologists who treated him had been provided by Wyckoff and were “ostensibly acting as its agent in providing care to” him (Schacherbauer, 56 AD3d at 752). Accordingly, Wyckoff's motion for summary judgment must be denied on this ground as well. Finally, Wyckoff does not address the issue of whether it is accepted medical practice to operate an emergency room at night, without a radiologist on duty.
The court also finds Dr. Adeyemi's assertion that he cannot be held liable for the delay in operating on plaintiff to be unpersuasive. In this regard, it has been held that “joint liability may be imposed where the referring physician was involved in decisions regarding diagnosis and treatment to such an extent as to make them his or her own negligent acts' “ (Ellis v. Eng, 70 AD3d 887, 892 [2010] ), quoting Mandel v. New York County Pub. Admin., 29 AD3d 869, 871). Thus, it has been held that when the referring physician has been independently negligent in diagnosing a plaintiff's condition, and that the mis-diagnosis constituted a proximate cause of plaintiff's injuries, the initial wrongdoer, cannot escape liability merely by showing that the subsequent treating physician to whom plaintiff was referred was also negligent ( see Datiz v. Shoob, 71 N.Y.2d 867, 868–869 [1988], citing Ravo v. Rogatnick, 70 N.Y.2d 305, 310 [1987];Suria v. Shiffman, 67 N.Y.2d 87, 98 [1986] ). In this case, plaintiff raises an issue of fact with regard to whether Dr. Adeyemi, as the referring emergency room physician, jointly participated with Dr. Hazari, the surgeon to whom plaintiff was referred, in the diagnosis of plaintiff so as to render him liable for any departure from good and accepted standards of medical care and that such departure was a proximate cause of plaintiff's injuries.
Conclusion
For the above discussed reasons, all relief requested by Dr. Adeyemi, Dr. Hazari and Wyckoff is denied.
The foregoing constitutes the order and decision of this court.