Opinion
Index 61347/2017
10-06-2020
ADJARATOU ZONGO, As Administratrix of the Estate Of FATIMATA ZONGO, Deceased, and ADJARATOU ZONGO Individually, Plaintiffs, v. DMITRY GERBER, JOHN ILARIO, ZAREEN KHAN, SHAHRAN RAZMZAN, WESTCHESTER MEDICAL GROUP, P.C., d/b/a WESTMED, SOUTHERN WESTCHESTER OB/GYN ASSOCIATES, LLP, and ST. JOHN'S RIVERSIDE HOSPITAL, Defendants. Seq Nos. 2, 3, 4, 5
Unpublished Opinion
DECISION & ORDER
HON.CHARLES D. WOOD, J.
New York State Courts Electronic Filing ("NYSCEF)) Documents Numbers 82-210, were read in connection with the respective motions for summary judgment of Dmitry Gerber, John Ilario, and Southern Westchester OB/GYN Associates, LLP. ("OB/GYN)) (Seq #2); Zareen Khan (Seq #3); St. Johns Riverside Hospital (Seq #4); and an application by Westchester Medical Group, P.C., d/b/a Westmed, for the court to so order a Stipulation of Discontinuance (Seq #5); as well as the court having heard oral argument by counsel in connection with the instant motions, on May 21, 2020, all attending by Skype or other electronic virtual means, in accordance with the Court's Administrative Orders.
This action sounding in medical malpractice and wrongful death against defendants, concerns a 36 year old plaintiff-decedent, Ms. Zongo, who died on November 28, 2015, at St. John's Riverside Hospital, eleven days after giving birth to her only child on November 17, 2015. After an autopsy was performed, Ms. Zongo's cause of death was determined to be disseminated pneumitosis due to postpartum bacterial infection.
Now, based upon the foregoing, the motions are decided as follows:
It is well-setlled that a proponent of a summary judgment motion must make a "prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]; see Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 A.D.3d 684, 686-687 [2d Dept 2007]; see also Rea v Gallagher, 31 A.D.3d 731 [2d Dept 2007]). Failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the motion papers (Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853' [1986]; see Jakabovics v Rosenberg, 49 A.D.3d 695 [2d Dept 2008]; see also Menzel v Plotkin, 202 A.D.2d 5.8, 558-559 [2d Dept 1994]). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (see Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]; see also Khan v Nelson, 68 A.D.3d 1062 [2d Dept 2009]). In deciding a motion for summary judgment, the court is "required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion" (Yelder v Walters, 64 A.D.3d 762, 767 [2d Dept 2009]; see Nicklas v Tedlen Realty Corp., 305 A.D.2d 385, 386 [2d Dept 2003]). The court's function in considering a summary judgment motion is not to resolve issues, but to determine if any material issues of fact exist (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]; Stukas v Streiter, 83 A.D.3d 18, 23 [2d Dept 2011]).
"To establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiffs injuries" (Stukas v Streiter, 83 A.D.3d 18, 23 [2d Dept 2011]). "A defendant physician seeking summary judgment must make a prima facie showing that there was no departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Iulo v Staten Island University Hospital, 106 A.D.3d 696, 697 [2d Dept 2013]). To successfully oppose a motion for summary judgment dismissing a cause of action sounding in medical malpractice, a plaintiff must submit a physicians affidavit of merit attesting to (depending on the defendants prima facie showing) a departure from accepted practice and/or containing the attesting doctors opinion that the defendant's omissions or departures were a competent producing cause of the injury (Domaradzki v Glen Cove Ob/Gyn Associates, 242 A.D.2d 282 [2d Dept 1997]; see Arkin v Resnick, 68 A.D.3d 692, 694 [2d Dept 2009]). Conclusory or general allegations of medical malpractice, "unsupported by competent evidence tending to establish the essential elements are insufficient to defeat a motion for summary judgment"" (Mendez v City of New York, 295 A.D.2d 487 [2d Dept 2002]; see Alvarez v Prospect Hospital, supra, at 325).
In addition, the plaintiff is required to raise a triable issue of fact as to causation only in the event that the defendant makes an independent prima facie showing that any claimed departure was not a proximate cause of the plaintiffs injuries (Stukas v Streiter, 83 A.D.3d 18). To establish proximate cause in a medical malpractice action, "a plaintiff needs do no more than offer sufficient evidence from which a reasonable person might conclude that it was more probable than not that the injury was caused by the defendant" (Johnson v Jamaica Hospital" Medical Center, 21 A.D.3d 881, 883 [2d Dept 2005] citing Holton v Sprain Brook Manor Nursing Home Nursing Home, 253 A.D.2d 852 [2d Dept 1998]; see Clarke v Limone, 40 A.D.3d 571, 571-572 [2d Dept 2007]). Since the burden of proof does not ask the plaintiff to eliminate every possible cause of her injury, "the plaintiffs expert need not quantify the exact extent to which a particular act or omission _decreased a patient's chances [of a cure or increased her injury], as long as the jury can infer that it was probable that some diminution" in the plaintiffs chance of a better outcome (Jump v Facelle, 275 A.D.2d 345, 346 [2d Dept 2000]; see Flaherty v Fromberg, 46 A.D.3d 743, 745 [2d Dept 2007]; Calvin v New York Medical Group, P.C., 286 A.D.2d 469, 470 [2d Dept 2001]).
Here, OB/GYN and their doctors, including Drs. Gerber and Hario, provided car treatment to Ms. Zongo during her pregnancy. On November 17, 2015, at 4:25 PM as the delivering obstetrician, delivered Ms. Zongo's infant vaginally. It was an and delivery, and Ms. Zongo was discharged from St. Johns on November 19 201
Four days after her discharge from St. John's, Ms. Zongo presented to OB/GYN with complaints of difficulty breastfeeding, abdominal cramping, back pain, feeling tired and occasional chills for a few days prior to arriving to OB/GYN. Ms. Zongo was attended by Maria Andreyko, (a physician assistant), who noted that Ms. Zongo had bloody vaginal discharge with no odor and her uterus was enlarged, but did not indicate any finding of an infection. Following the exam, Ms. Zongo was referred to her primary care physician, and informed to follow up in a couple of weeks if necessary.
On November 28, 2015, at approximately 12:48 AM., Ms. Zongo presented to the Emergency Room at St. John's with a chief complaint of chest pain. The record reflects 12:57 AM., Ms. Zongo's blood pressure was elevated at 186/93. She had chest pain radiating her left upper extremity, and her pain was 8 out of 10. At 1:32 A.M., Ms Zongo in ventricular fibrillation, and she was pulseless, unresponsive and had seizure like activity. Resuscitative efforts were unsuccessful and terminated at 3:17 A.M. when Ms. Zongo was pronounced dead. The Autopsy Report determined that the cause of death was disseminated pneumitosis due to postpartum bacterial infection.
Turning to OB/GYN, and Drs. Gerber and llano's motion Seq 2 for summary judgment, they argue that they established prima facie entitlement to judgment as a matter of law, through the submission of competent medical testimony, and the Affidavits of Drs. Gerber and llario, establishing that these doctors and practice, did not deviate from good and accepted standards of care in the evaluation, diagnosis, and treatment of Ms. Zongo during prenatal care, labor and delivery, and post delivery.
The crux of plaintiff's complaint against OB/GYN, and Drs. Gerber and llario focuses on the November 23, 2015 office visit, wherein P.A. Andreyko allegedly failed to diagnose Ms. Zongo With an infection. Drs. Gerber and Dr. llario attest that Andreyko, a physician assistant, was an employee of OB/GYN, and had been for many years. On November 23, 205,, only five days before Ms. Zongo's death, Ms. Zongo was attended by Ms. Andreyko at the offices of OB/GYN. On that date, Andreyko noted, that Ms. Zongo's abdominal and pelvic examination were normal and there was no indication that there was any infection, or anything other than normal postpartum complaints. PA. Andreyko concluded that the patient, who was breast feeding, was suffering from problems associated with breast engorgement as well as complaints associated with a pre-existing lower back condition. She recommended that Ms. Zongo see her primary care physician and that she return to OB/GYN in one to two weeks if necessary. P.A. Andreyko's notes were signed the following day by Dr. Razmzan, who was the physician supervising her patient care for the November 23 visit.
These moving defendants offer no affidavits from independent experts but rely on affidavits from their own doctors Gerber and Hario. Through his affidavit, Dr. Gerber opines that Ms. Zongo did not have an infection on November 23, 2015, when she was seen by P.A. Andreyko. It is his opinion within a reasonable degree of medical certainty within the field of / obstetrics and gynecology that every applicable standard of care was observed by him and Dr. Hario, and by Maria Andreyko and OB/GYN .
For the purposes of the instant summary judgment motions before the court, the expert opinions shall be considered, and have established that these medical experts possesses the requisite credentials and experience to provide opinions within their respective fields and shall be given the appropriate weight by the court.
In fact, Dr. Ilario only saw Ms. Zongo on two occasions. On October 15, 2015, Dr. Ilario saw Ms. Zongo when she presented with complaints of palpitation,, and accordingly, he referred her to a cardiologist for further evaluation. Dr. Ilario also conducted a full prenatal examination at that time which revealed normal findings. Dr. Ilario again examined Ms. Zongo on October 19, 2015, and conducted a full prenatal examination. Nothing in the record suggests that on these two occasions, Dr. Ilario violated the standard of care or was in any way related to her death.
Dr. Gerber was the delivering obstetrician, and treated Ms. Zongo during her pregnancy. Likewise, it cannot be said that there is sufficient evidence that his treatment and care was a proximate cause of Ms. Zongo's death, as Dr. Gerber was also not involved on November 23, 2015, the date that Ms. Zongo visited their practice for chest pains and other ailments.
In considering this record, the court finds that Drs. Gerber and Ilario have demonstrated prima facie, that their care and treatment was not the proximate cause of Ms. Zongo's death, as neither doctor was involved in the care rendered on November 23, 205.. In any event, plaintiffs have now discontinued as against Drs. Gerber and I1ario, and therefore, Motion Seq. 2 is moot.
NYSCEF Doc No. 239
Moving on to consider OB/GYN's motion for summary judgment the court finds that these moving defendants failed to demonstrate prima facie that P.A. Andreyko, and OB/GYN's treatment, and care, and the alleged failure to diagnose the bacterial infection was not the proximate cause of Ms. Zongo's death. OB/GYN offered the medical record and the Affidavits of Drs. Gerber and I1ario, that made conclusory allegations without competent support.
Dr. Gerber's opinion that Ms. Zongo did not have an infection on November 23, 205,, when she was seen by P.A. Andreyko has insufficient support in the record. Dr. Gerber also fails to explain how Ms. Zongo's signs and symptoms on November 23, 2015, of abdominal cramping, pelvic pain, back pain, fatigue and chills - were not signs of an infectious process, and failed to address plaintiffs experts' opinions that they were such signs of infection.
These moving defendants' doctors' opinions offer nothing more than conclusory and self-serving statements. 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]).
Even if this court were to consider plaintiffs' opposing papers, it would lead to the same result. In opposition t6 the instant motions, including this Motion Seq 2, plaintiffs offer four unnamed Expert Affidavits from: physician Board Certified in Obstetrics and Gynecology (PI. Ex 11, NYSCEF Doc No. 167); an Infectious Disease Doctor (PI Ex 12, NYSCEF Doc No. 168); physician Board Certified in Internal Medicine and Pulmonary Disease (PI Ex 13, NYSCEF Doc No. 169); and a physician assistant in the field of Obstetrics and Gynecology (PI Ex 14, NYSCEF Doc No. 170).
Specifically, plaintiffs raised a triable issue of fact, through the Affirmations of Plaintiffs OB/GYN and Infectious Disease Expert, and Affidavit of Plaintiffs Expert Physician Assistant, as to whether OB/GYN, through the conduct of P.A. Andreyko, departed from the accepted standards of care in failing to do a complete and thorough physical exam, including failing to check Ms. Zongo's temperature, failing to evaluate Ms. Zongo's uterus for tenderness and size, failing to obtain a complete blood count, and failing to include an infectious process within their differential diagnosis on November 23, 2015.
In light of the foregoing, OB/GYN failed to eliminate all triable issues of fact insofar as if the Conduct of P.A. Maria Andreyko, departed from the accepted standards of care. Question remains as. to whether Ms. Zongo presented with an infection on the November 23rd visit, and whether OB/GYN, through the conduct of P.A. Maria Andreyko, departed from the accepted standards of care in failing to diagnose and treat Ms. Zongo postpartum infection.
Turning next to Dr. Khan and St. John's motion for summary judgment, Seqs 3 and 4, plaintiff is claiming that during the approximately thirty (30) minutes that Dr. Khan (an emergency doctor at St. John's) was involved in the care of Ms. Zongo before she coded, Dr. Khan failed to diagnose a postpartum infection and disseminated pneumitosis, and that Dr. Khan should have administered antibiotics, IV fluids and vasopressors to Ms. Zongo.
In support of her motion for summary judgment, Dr. Khan offers the expert affirmation of Thomas E. Klie, D.O., a physician licensed to practice medicine in New York State and Board certified in Emergency Medicine (NYSCEF Doc No. 118). Dr. Klie explains that pneumitosis, which is gas in the bowel wall, is an extremely rare condition. Symptoms are generally gastroenterological in nature, including nausea and vomiting. Ms. Zongo had neither, nor did she show any signs or symptoms of an abdominal infection during the approximately thirty-five (35) minutes she was present in the ER at St. John's She was triaged immediately and an EKG was performed.
Upon presentation to the ER, the patient's vital signs were: 98.7 (temperature); 71 (pulse rate); 18 (respiratory rate); 186/93 (blood pressure); and 100% (room air pulse ox). Abdominal exam was normal). As stated in Dr. Klie's affirmation, Dr. Khan appropriately reviewed the EKG result as soon as it was available, and then ordered the appropriate lab work.
Dr. Klie asserts that based on Ms.. Zongo's clinical picture at the time, there was no indication to start antibiotics or IV fluids or to order blood cultures. There was no indication that Ms. Zongo was suffering from a postpartum infection. According to Dr. Klie, based on the patient's chief complaint of chest pain, and her elevated systolic blood pressure it was appropriate to await the results of the lab work, keep the patient on a cardiac monitor, administer oxygen, and re-check the patient's blood pressure. Although her blood pressure remained elevated, she was in no distress and her other vital signs were stable. When Dr. Khan was on her way to the patient's room to conduct her examination (at 1:32 a.m., approximately 30 minutes after the patient arrived at the ER), Ms. Zongo suddenly went into VFib. Dr. Klie continues that there was no way to predict that this patient would go into VFib arrest; and there was no indication of tachycardia (abnormally rapid heart rate), dizziness, nausea, shortness of breath or loss of unconsciousness. Dr. Klie opines that Dr. Khan appropriately followed ACLS (Advanced Cardiovascular Life Support) protocol for a patient in VFib. During the resuscitation effort, the results of the patient's lab work came back, revealing no significant abnormalities. Ms. Zongo suffered an extremely rapid decompensation that could not have been predicted. Dr. Klie believes that based an the postmortem determination of disseminated pneumitosis secondary to bacterial infection, Ms. Zango's fate was already predetermined by the time she presented to the ER
Taking inta consideration the medical record and Dr. Klie's affirmation, Dr. Khan has made a prima facie showing that she was not negligent in treating Ms. Zango's. Dr. Hie, opined that there was no deviation or departure from accepted practice by Dr. Khan, and there is na evidence that anything Dr. Khan did or failed to da was the proximate cause of or a substantial factor in plaintiffs decedent's subsequent injuries.
In support of their motion far summary judgment St. John's offers the a pinion of Dr. Gary Mucciolo, a physician board certified in Obstetrics and Gynecology. He affirms that he is familiar with the standard of practice in the medical community, and in particular, with the standard of care relative to the management of obstetrical and gynecological patients, including the management of postpartum infection, as it existed in or around the year 20IS, including November 2015. He is also familiar with the standard of care as it relates to the role of the nursing staff relative to their pastpartum interactian with patients.
Dr; Mucciolo opines that "an November 28, 2015, the decedent presented to the Emergency Room at SJRH with an overwhelming infection and that at that time, there was nothing that could have been done to prevent her demise. Therefore, the decedent's death was . unavailable" (NYSCEF Doc No.121).
It is his Opinion that the employees and staff .of St. John's did not deviate from good and. accepted practice, nor were. the actions or inactions .of the employees and staff .of St. John's a praximate cause .of any injuries suffered by Ms. Zanga. It is his Opinion that the nursing staff .of St. John's acted within good and accepted practice in following all of the orders of the private attending physician.
In further support of their motion, St. John's offers the opinions of Bruce Farber, Board Certified in the specifiability of Infectious Diseases. Dr. Farber opines that "[i]n my opinion, the ventricular fibrillation arrest was caused by the underlying infection as identified in the autopsy report". Plaintiff charges that Dr. Farber's Affirmation is lacking any sort of reasoning to explain the discrepancies in the St. John's record, specifically, that St. Johns s record inaccurately notes that at I:09 AM, Ms. Zongo was not hypertensive despite her blood pressure being 173/88 elevated blood pressure (NYSCEF Doc No.122).
St. John's also offers the affirmation of Paul Antonecchia, a physician licensed to practice medicine in the State of New York, who is currently Vice-President, Medical Affairs and Chief Medical Officer, at St. John's. He states, as pertinent here, that Dr. Khan became an attending physician working in the emergency room at St. John's on August 10, 2015.
In opposition, plaintiffs offer their expert affirmations that St. John's departed from the accepted standards of care in failing to timely examine and render treatment to Ms. Zongo on November 28, 205;; and in failing to timely administer medication to lower Ms. Zongo's blood pressure. Had Dr. Khan timely administered medication, it is more likely than not that Ms. Zongo's blood pressure would have been reduced, and she would not had suffered from ventricular fibrillation, and her chances of survival would have been substantially increased. (PL Exhibit 13).
Additionally, Plaintiff s Infectious Disease Expert opined that:
If front-line antibiotics were timely administered to Ms. Zongo and her infection had been appropriately identified, diagnosed and treated, she would likely have survived the infection and had a full recovery. (See Exhibit 12, 124))
Based on the record, although moving defendants Dr. Khan and St John's made out a prima facie cases of entitlement to summary judgment, plaintiffs raised issues of fact, through their medical experts' affirmations, sufficient to preclude summary judgment. As is the case here, summary judgment "is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions such credibility can only be resolved by a jury" (Feinberg v. feit, 23 A.D.3d 517, 519 [2d Dept 2005] quoting Shields v Baktidy, 11 A.D.3d 671, 672 [2d Dept 2004]; see generally Darwick v Paternoster, 56 A.D.3d 714, 715 [2d Dept 2008]; Adjetey v New York City Health and Hospitals Corp, 63 A.D.3d 865 [2d Dept 2009]). The opinion of the plaintiffs' medical experts are not conclusory or without evidentiary value, thus, summary judgment is not appropriate here, where the parties adduce conflicting medical opinions and raise credibility issues which can only be resolved by a jury (Barrocales v New York Methodist Hosp., 122 A.D.3d 648, 649 [2d Dept 2014]). There is, in essence, a "battle of the experts" for the resolution of the trier of fact.
Turning to OB/GYN defendants' motion to dismiss the cause of action premised on lack of informed consent, to establish a cause of action [to recover damages] for malpractice based on lack of informed consent, [a] plaintiff must prove (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury" (Walker v Saint Vincent Catholic Med. Centers. 114 A.D.3d 669, 670 [2d Dept 2014]). The court agrees with these defendants that the record in this case demonstrates a lack of specificity on the part of plaintiffs in their claims of lack of informed consent; it is unclear how a theory of informed consent could be applied to the treatment rendered by Drs. llario or Gerber, or to any of the staff at Southern Westchester OB/GYN. In opposition, plaintiffs fail to raise a triable issue of fact. Accordingly, the cause of action for informed consent is dismissed.
Likewise, to the extent that an informed consent cause of action is being maintained against St. John's, it has demonstrated a prima facie entitlement to dismiss this cause of action. That claim should be dismissed because it was not the responsibility or the duty of the hospital to obtain the patient's informed consent when Ms. Zongo was treated by Dr. Gerber (Tomeo v. Beccia, 127 A.D.3d 102 [2d Dept 2015]). Where a private physician attends his or her patient at a hospital, it is the physician's duty to obtain the patient's informed consent. Additionally "[f]he right of action to recover for medical... malpractice based on a lack of informed consent is limited to those cases involving either (a) non-emergency treatment, procedure or surgery, or (b) a diagnostic procedure which involved invasion or disruption of the integrity of the body" . (Sample v. Levada, 8 A.D.3d 465, 466-67 [2d Dept 20041).
Plaintiffs having failed to raise triable issues of fact, this cause of action is dismissed as to St. John's.
Lastly, as for Seq 5, for an Order pursuant to CPLR 3217(b), so Ordering the Stipulation of Discontinuance with prejudice as to defendant WESTCHESTER MEDICAL GROUP, P.C., d/b/a WESTMED; amending the caption to delete WESTCHESTER MEDICAL GROUP, P.C., d/b/a WESTMED; was so ordered by the court on September 8, 2020.
The court has considered the remainder of the factual and legal contentions of the parties and to the extent not specifically addressed, finds them to be without merit or rendered moot by other aspects of this decision. This constitutes the decision and order of the court.
Accordingly, based upon the stated reasons, it is hereby
ORDERED, that the motion for summary judgment (Seq 2) of Dmitry Gerber, John llario is moot, as plaintiffs have discontinued this action against Dmitry Gerber and John llario, with prejudice; and denied as to Southern Westchester OB/GYN Associates, LLP; and it is further
ORDERED, that motion for summary judgment by Zareen Khan (Seq 3) is denied; and it is further
ORDERED, that the motion for summary judgment by St. John's Riverside Hospital (Seq 4) is granted to the extent that any cause of action for informed consent is dismissed as against St John's, and the motion is denied otherwise; and it is further
ORDERED, that the motion by Westchester Medical Group, P.C., d/b/a West Med (Seq 5) is moot, as the Stipulation of Discontinuance, was so ordered by the court on September 8, 2020 date, and the caption of this action shall delete reference to WESTCHESTER MEDICAL GROUP, P.C., d/b/a WESTMED;'(and to Dmitry Gerber and John llario- Seq 2), and shall, now read as follows:
SUPREME COURT OF THE STATE OF NEW YORK WESTCHESTER
ADJARATOU ZONGO, As Administratrix of the Estate Of FATIMATA ZONGO, Deceased, and ADJARATOU ZONGO Individually,, Plaintiffs,
v.
ZAREEN KHAN, SHAHRAM RAZMZAN, SOUTHERN WESTCHESTER OB/GYN ASSOCIATES, LLP, and ST. JOHN1S RIVERSIDE HOSPITAL, Defendants.
and it is further
ORDERED, that the remaining parties are directed to appear in Courtroom 1600, the Settlement Conference Part, at the Westchester County Courthouse, I11 Dr. Martin Luther King Jr. Blvd., White Plains, New York 1060I at a date and time to be determined by that Part.
The Clerk shall mark his records accordingly.