Opinion
Index No. 009975/2018 NYSCEF Doc. No. 82
12-30-2021
ANDREA STAGNARI and KENNETH STAGNARI, her husband, Plaintiffs, v. DR. W. DOUGLAS BUNN, JR., M.D., GYN ONCOLOGY OF CENTRAL NEW YORK, P.C., and CROUSE HEALTH HOSPITAL, INC., d/b/a CROUSE HOSPITAL, Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. JOSEPH E. LAMENDOLA, J.S.C.
Plaintiffs commenced this medical malpractice action for injuries allegedly sustained by Andrea Stagnari (plaintiff) between April 26, 2016 and May 26, 2016. It is undisputed that, on April 26, 2016, defendant W. Douglas Bunn, MD attempted a robotic-assisted laparoscopic benign hysterectomy and bilateral salpingo-oophorectomy and lysis of adhesions, which was converted to an open benign hysterectomy and bilateral salpingo-oophorectomy and lysis of adhesions due to a bowel perforation and extensive adhesions encountered. Following this procedure, plaintiff developed a moderate hemoperitoneum, which Dr. Bunn evacuated as well as repaired a prior suture, and completed a stapled functional end to end anastomosis.
Plaintiffs' action as against defendant Crouse Health Hospital, Inc. d/b/a Crouse Hospital was discontinued (NYSCEF #29).
Plaintiffs' complaint alleged that the "standard of care for good medical practice for the specialty of obstetric gynecological surgery required Dr. Bunn to leave the surgical wound open after the second operation in the face of a contaminated wound, thereby increasing the risk for development of a wound infection with its attendant complications." Plaintiffs further alleged that Dr. Bunn breach the standard care by (1) failing to leave the surgical wound open, and instead closing the wound, which was severely contaminated, with staples and placing a drain; (2) by closing the wound, an infection developed which caused the anastomosis at the enterotomy site to weaken and leak, leading to the development of enteric (small bowel) fistula and drainage of purulent material from Stagnari's abdomen; (3) the standard of care required Dr. Bunn to place a nasogastric tube in Stagnari post-surgery, when Stagnari had been coughing and vomiting, had a low urine output, and her blood pressure was low; and (4) the failure to place the nasogastric tube in Stagnari contributed to Stagnari's repeated episodes of vomiting and coughing, which in turn increased the pressure on Stagnari's abdomen, contributing to a leak and the expelling of Stagnari's bowel contents through the fistula. Plaintiffs also alleged a theory of respondeat superior as against defendant GYN Oncology of Central New York, P C.
Plaintiffs' complaint, as amplified by their bill of particulars, alleged, inter alia, the following:
"Dr. Bunn failed to leave the surgical wound open causing infection to develop, causing anastomosis at the enterotomy site to weaken and leak, leading to the development of an enteric fistula and drainage of purulent material from Stagnari's abdomen. Dr. Bunn failed to place a nasogastric tube in Stagnari post-surgery when Stagnari had been coughing and vomiting, had low urine output, and her blood pressure was low. The failure to place the nasogastric tube in Stagnari contributed to Stagnari's repeated episodes of vomiting and coughing, which in turn increased the pressure on Stagnari's abdomen, contributing to the development of leak and the expelling of Stagnari's bowel contents through the fistula
. . .
Plaintiff explained to Dr. Bunn that she has extensive scar tissue, particularly on the left side of her abdomen as a result of prior surgeries. Dr. Bunn insisted on using a robotic device known as the 'da Vinci
Surgical System' to assist in the surgery even though [p]laintiff told Dr. Bunn that the approach was not a good idea because of the extensive scar tissue and thus, the potential for injury during surgery exists. Dr. Bunn proceeded with the hysterectomy robotically."
Pending before the Court now is defendants' motion for summary judgment.
"[T]o meet [their] initial burden on [their] summary judgment motion in this medical malpractice action, defendants] [were] required to 'present factual proof, generally consisting of affidavits, deposition testimony and medical records, to rebut the claim of malpractice by establishing that [they] complied with the accepted standard of care or did not cause any injury to the patient'" (Webb v Scanlon, 133 A.D.3d 1385, 1386 [4th Dept 2015]; see Cole v Champlain Val. Physicians' Hosp. Med. Ctr., 116 A.D.3d 1283, 1285 [3d Dept 2014]). Affidavits submitted in support of such a motion must be "detailed, specific and factual in nature and [must] not assert in simple conclusory form that the physician acted within the accepted standards of medical care" (Toomey v Adirondack Surgical Assoc., 280 A.D.2d 754, 755 [3d Dept 2001]). In addition, the expert affidavit must "address each of the specific factual claims of negligence raised in [the] plaintiffs'] bill of particulars" (Larsen v Banwar, 70 A.D.3d 1337, 1338 [4th Dept 2010]; see James v Wormuth, 74 A.D.3d 1895, 1895 [4th Dept 2010]). "Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Ctr, 64 N.Y.2d 851, 853 [1985]).
Of particular importance on this motion, defendants submitted the required Statement of Material Facts (22 NYCRR 202.8-g) and the expert affirmation of Dr. Cioffi (Board Certified in obstetrics and gynecology). Dr. Cioffi provided a comprehensive summary of the treatment rendered by Dr. Bunn, which included several conclusions and opinions, e g.,
• Dr. Bunn performed the initial procedure in accordance with good and accepted medical practices. While he initially proceeded with a robotic assisted procedure, he encountered adhesions and determined that the first trocar had perforated the small bowel, so the procedure was converted to an open procedure. Following this, Dr. Bunn carefully performed the lysis of adhesions, which were extensive, repaired the perforation, and performed the hysterectomy with bilateral salpingo-oophorectomy.
• Dr. Bunn performed this procedure in accordance with good and accepted medical practices. Plaintiffs scar tissue did not preclude Dr. Bunn from attempting to use the da Vinci surgical system. Plaintiff was at risk for injury, such as bowel perforation, whether the procedure was performed with the da Vinci system, or as an open procedure. Indeed, plaintiff was required to undergo abdominal and vaginal prep and take antibiotics prior to surgery due to the potential for infection. Thereafter, Dr. Bunn carefully performed the hysterectomy with bilateral salpingo-oophorectomy, as well as lysis of adhesions, which were extensive, and repaired the bowel perforation. A bowel perforation is, however, a known risk of the procedure Dr. Bunn performed that can occur, and did occur, in the absence of negligence.
• One of the known risks of this type of procedure is of an inadvertent injury to adjacent tissue. The tissue adjacent to Dr. Bunn's surgical field included plaintiffs small bowel. Further, a bowel perforation is a known risk of any type of pelvic surgery, such as the surgery plaintiff had. In fact, as Dr. Bunn testified, in order to prevent infection, plaintiff was given preoperative antibiotics and had an abdominal and vaginal prep. She was also irrigated with sterile saline at the end of the procedure.
• Plaintiff had a number of risk factors that made her more prone to sustain a bowel perforation. These included her multiple prior surgeries and the existence of significant abdominal pelvic adhesions, which neither Dr. Bunn nor any other surgeon could have anticipated preoperatively as there is no study that would advise the extent of the adhesions. The prior surgeries and the extensive adhesions made this procedure more complicated and more involved.
• The standard of care requires a gynecologic surgeon who is performing a surgery in the pelvic area to determine, before closing the patient, whether there is any suspicion of a bowel injury and if there is a bowel injury, to address it. Dr. Bunn's Operative Note clearly demonstrates that he complied with the standard of care by discovering and repairing the two (2) bowel injuries and copiously irrigating and inspecting the pelvic activity after lysing the adhesions. Upon the inspection, Dr. Bunn had no suspicion of a further bowel
injury. There is no need to manipulate the bowel to check for a bowel injury unless there is a reason to suspect that such an injury has occurred, such as leakage of stool into the surgical field, and there was no reason to suspect an injury here.
• The standard of care allows for a gynecologic surgeon who repaired a bowel injury during an open benign hysterectomy, bilateral salpingo-oophorectomy, and later exploratory laparotomy, to leave the incision open in circumstances where there is a clinical or uncontrolled issue that would require immediate surgical attention within the next twenty-four (24) hours.
• Following both procedures, plaintiff was not experiencing any clinical or uncontrolled issues that would suggest it was appropriate to leave the incision open rather than closed. Dr. Bunn did not anticipate any emergent surgical condition that would require a second surgical laparotomy within the next twenty-four hours, so leaving the wound open would have been inappropriate at that time.
• Prior to closing the surgical wound on April 26, Dr. Bunn ran the bowel and determined there were no additional bowel injuries. He also irrigated the incision with sterile saline and closed the incision with staples. Plaintiff was not experiencing any emergent condition, such as active bleeding, that would have required the surgical wound to be left open. Dr. Bunn had no reason to believe that the surgical wound should be left open. Therefore, it was not a deviation from the standard of care to close the surgical wound upon completion of the benign hysterectomy and bilateral salpingo-oophorectomy.
• The standard of care for a gynecologic surgeon performing a benign hysterectomy and bilateral salpingo-oophorectomy allows the gynecologic surgeon to use their best judgment to determine when a patient may require a nasogastric tube based on any anticipated bowel dysfunction secondary to the procedure.
• It was not a deviation from the standard of care for Dr. Bunn to determine that plaintiff did not require a nasogastric tube after her benign hysterectomy and bilateral salpingo-oophorectomy with lysing of adhesions and bowel repair.
• Following the procedure, Dr Bunn ran plaintiffs bowel and determined there were no further bowel injuries or dysfunction.
• As Dr. Bunn did not anticipate any further complications related to plaintiffs bowel and had no reason to expect complications, he did not need to place a nasogastric tube following her benign hysterectomy and bilateral salpingo-oophorectomy.
Based on the entirety of his submission, Dr. Cioffi opined, to a reasonable degree of medical certainty that, Dr. Bunn did not deviate from the applicable standard of care and that no deviation from the standard of care caused or contributed to any injuries allegedly sustained by the plaintiff.
In this Court's view, the defendants met their initial burden with respect to both whether they complied with the accepted standard of care and whether they caused any injury (see Isensee v Upstate Orthopedics, LLP, 174 A.D.3d 1520, 1521-1522 [4th Dept 2019]).
In opposition, the Court concludes that plaintiffs failed to raise a genuine, material question of fact.
First and foremost, the plaintiffs failed to serve a "correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party" (22 NYCRR 202.8-g [b]). This failure has consequences inasmuch as "[e]ach numbered paragraph in the statement of material facts required to be served by the moving party will be deemed to be admitted unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party'' (id. at 202.8-g [c] [emphasis added]).
In view of the foregoing, the Court finds that each and every statement in defendants' statement of material facts is deemed admitted by the plaintiffs insofar as their submissions fail to comply with the Uniform Rules. On review of said material facts, the Court concludes that the defendants are entitled to summary judgment (see Reus v ETC Hous. Corp., 72 Misc.3d 479, 483-484 [Supreme Court, Clinton County 2021]).
If the Court, like the plaintiffs, were to ignore 22 NYCRR 202.8-g, the Court would reach the same conclusion.
The Court is persuaded by defendants' contention that plaintiffs' expert is not qualified, based on his submissions before the Court, to render opinions regarding gynecologic oncology or robotic surgery.
"It is well settled that '[a] physician need not be a specialist in a particular field to qualify as a medical expert and any alleged lack of knowledge in a particular area of expertise goes to the weight and not the admissibility of the testimony'" (Martingano v Hall, 188 A.D.3d 1638, 1641 [4th Dept 2020], Iv denied 36 N.Y.3d 912 [2021]; Nowelle B. v Hamilton Med., Inc., 177 A.D.3d 1256, 1258 [4th Dept 2019] ["The specialized skills of [an] expert as demonstrated through his [or her] board certifications, taken together with the nature of the medical subject matter of th[e] action, are sufficient to support the inference that his [or her] opinion regarding [the] treatment [at issue] was reliable . . ., and any alleged lack of skill or experience goes to the weight to be given to the opinion, not its admissibility"]). Nevertheless, "[a]lthough a medical expert need not be a specialist in a field to offer an opinion concerning the accepted standards of care in that field, a physician offering an opinion outside his or her particular field must lay a foundation to support the reliability of that opinion" (Chillis v Brundin, 150 A.D.3d 1649, 1650 [4th Dept 2017]). Stated differently, "[w]hile it is true that a medical expert need not be a specialist in a particular field in order to testify regarding accepted practices in that field . . . the witness nonetheless should be possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion rendered is reliable . . . 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" (Shectman v Wilson, 68 A.D.3d 848, 849-850 [2d Dept 2009] [internal citations and quotation marks omitted]: see Behar v Coren, 21 A.D.3d 1045, 1047 [2d Dept 2005], Iv denied 6 N.Y.3d 705 [2006]).
The Court agrees with the observations of the defendants. Specifically, plaintiffs' expert, Dr. Flancbaum, did not provide any background information regarding how he became familiar with the standard of care for gynecological surgery. His affidavit does not reference what, if any, materials he reviewed or consulted to become familiar with the standard of care applicable to a gynecologic oncologist performing minimally invasive and open hysterectomies and bilateral salpingo-oophorectomies and the lysis of adhesions in the pelvic cavity using the da Vinci robot. Nor did Dr. Flancbaum explain how he is familiar with the standard of care for diagnosing and treating bowel perforations during pelvic and gynecological surgeries. Under the circumstances of this case, as the plaintiffs' expert failed to lay the requisite foundation for his asserted familiarity with the applicable standards of care, his affirmation is of no probative value (see Mustello v Berg, 44 A.D.3d 1018, [2d Dept 2007], Iv denied 10 N.Y.3d 711 [2008], see generally Dziwulski v Tollini-Reichert, 181 A.D.3d 1165, 1166 [4th Dept 2020], Iv denied 37 N.Y.3d 901 [2021]).
Even if the Court were to also overlook the qualification issue, the plaintiffs' expert's affirmation simply fails to raise a triable issue of fact.
Although plaintiff submitted a physician's affidavit in opposition to defendants' motion, "[g]eneral 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]). Where "the expert's ultimate assertions are . . . unsupported by any evidentiary foundation, . . . [his or her] opinion should be given no probative force and is insufficient to withstand summary judgment" (Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544 [2002]; see Occhino v Fan, 151 A.D.3d 1870, 1871 [4th Dept 2017]).
The Court agrees with defendants that plaintiffs' pleadings are not clear as to whether plaintiffs are alleging that Dr. Bunn negligently caused a bowel injury. Litigants and the Court alike should not have to guess or speculate as to what a plaintiff is alleging. It should be clear. New allegations or theories should not be raised for the first time in opposition to the motion (see DeMartino v Kronhaus, 158 A.D.3d 1286, 1286 [4th Dept 2018]; Marchetti v East Rochester Cent. School Dist., 26 A.D.3d 881, 881-882 [4th Dept 2006] [" '(a) plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability for negligence for the first time in opposition to the motion' "]). In any event, as a whole, the Court finds that Dr. Flancbaum's affirmation is speculative and conclusory, and therefore insufficient to raise a triable issue of fact (see Simko v Rochester General Hospital, 199 A.D.3d 1408, 1408 [4th Dept 2021]; Martingano, 188 A.D.3d at 1639-1640: Pinnock v Mercy Med. Ctr., 180 A.D.3d 1088, 1092 [2d Dept 2020]; Campbell v Bell-Thomson, 189 A.D.3d 2149, 2150-2151 [4th Dept 2020]; see also Wicks v Virk, 198 A.D.3d 1315, 1315 [4th Dept 2021] ["Plaintiff failed to raise a triable issue of fact in opposition because her expert's affidavit addressed neither the specific conclusions in Virk's affidavit nor many of the undisputed facts concerning the decedent's treatment"]; Vargas v St. Barnabas Hosp.,168 A.D.3d 596 [1st Dept 2019]).
The Court further agrees with defendants that plaintiffs' reliance on res ipsa loquitor is misplaced. To start, this theory does not appear in plaintiffs' pleadings. Thus, the Court concludes that the plaintiffs' inexcusable delay in presenting the new theory of liability must result in the rejection of that argument (see Yousefi v Rudeth Realty, LLC, 61 A.D.3d 677, 678 [2d Dept 2009]). In any event, the evidence failed to show that the doctrine of res ipsa loquitur applies to this case (see id.).
Without a viable cause of action against defendant Dr. Bunn, there is no predicate for imposing vicarious liability on defendant GYN Oncology of Central New York, P C. (see Wicks, 198 A.D.3d at 1315).
As a final point, the Court must address a case not cited by either party, i.e., Bristol v Bunn (189 A.D.3d 2114 [4th Dept 2020]). Interestingly, this case involved the same defendant (Dr. Bunn), the same counsel for the defendants (Sugarman Law Firm, LLP), and a similar procedure at issue. The difference, as the Court sees it, are the alleged theories and the support of a viable opinion from plaintiffs' expert. Of particular relevance, however, is the fact that the experts in that case were in complete agreement that bowel perforation is a known complication from this type of surgery (see id. at 2116).
Accordingly, it is hereby ORDERED, that defendants' motion is GRANTED and plaintiffs' complaint is DISMISSED.
PAPERS CONSIDERED :
1) Notice of Motion, filed on July 15, 2021 (NYSCEF # 48, 62).
2) Attorney Affirmation in Support, with annexed exhibits, filed on July 15, 2021 (NYSCEF # 49-57).
3) Statement of Material Facts, filed on July 15, 2021 (NYSCEF # 58).
4) Memorandum of Law, filed on July 15, 2021 (NYSCEF # 59).
5) Expert Affirmation, with annexed exhibit, filed on July 15, 2021 (NYSCEF # 60-61).
6) Memorandum of Law in Opposition, filed on October 6, 2021 (NYSCEF # 66).
7) Attorney Affirmation in Opposition, filed on October 6, 2021 (NYSCEF # 67).
8) Expert Affirmation in Opposition, filed on October 6, 2021 (NYSCEF # 68).
9) Attorney Affirmation in Reply, with annexed exhibits, filed on October 28, 2021 (NYSCEF # 73-78).
10) Additional Exhibits filed on November 1, 2021 (NYSCEF #80-81).