Opinion
Index 516030/2016
01-06-2022
BARBARA ARRINGTON, Individually and as Administrator of the Estate of REYES PELLOT, JR., deceased, Plaintiff, v. ADESUWA OKESANYA, M.D., SIRISHA RANI TIKKO, M.D., HELEN VALSAMIS, M.D., and BROOKLYN HOSPITAL CENTER, Defendant.
Unpublished Opinion
DECISION/ORDER
HON. BERNARD J. GRAHAM SUPREME COURT JUSTICE
Recitation, as required by CPLR 2219(a), of the papers considered on the review of this motion to: award summary judgment to the defendant, pursuant to CPLR sec. 3212.
| Papers | NYSEF Doc. # |
| Notice of Motion and Affidavits Annexed | 44-53 |
| Order to Show cause and Affidavits Annexed | |
| Answering Affidavits | 55-64 |
| Replying Affidavits |
|
| Exhibits | |
| Other:....... (memo) |
Upon the foregoing cited papers, the Decision/Order on this motion is as follows:
Defendant Helen Valsamis, M.D. ("Dr. Valsamis") has moved (seq. 3) pursuant to CPLR § 3212, for an Order awarding summary judgment and a dismissal of plaintiff s complaint upon the grounds that Dr. Valsamis was neither negligent nor departed from accepted medical practice with respect to the treatment of the decedent during his hospitalization at the Brooklyn Hospital Center ("TBHC") from September 27, 2014 through November 15, 2014.
Counsel for the plaintiff, Barbara Arlington as Administrator of the Estate of Reyes Pellot ("plaintiff), has opposed the relief sought in the motion of defendant Dr. Valsamis for summary judgment and a dismissal of plaintiff s complaint upon the grounds that there are issues of fact with regard to the causes of action that have been pled by the plaintiff, as against the defendant, for medical malpractice and whether the departure from good and accepted practice through her alleged acts and omissions was a proximate cause of the decedent's injuries, specifically decedent's paraplegia.
Background:
The within action sounding in medical malpractice was commenced on behalf of the plaintiff by the filing of a Summons and Complaint with the Clerk of this Court on or about September 13, 2016. Issue was joined by defendants via the service of Verified Answers. A Verified Bill of Particulars was served upon the defendants on or about March 16, 2017, and depositions of the plaintiff, Dr. Okesanya, as well as defendants Dr. Tikko, and Dr. Valsamis were held. Plaintiff served the Note of Issue on March 4, 2019, and following a conference with Judge Steinhardt on April 28, 2020, the time to file a motion for summary judgment was extended.
Facts:
The decedent, Reyes Pellot Jr., a 59-year old male with a history of diabetes and hypertension, first presented to the Emergency Department at TBHC on September 26, 2014 with a high fever. It appears that the decedent was seen by medical personnel who performed an exam and administered Tylenol. However, it is disputed amongst the parties that when decedent left the hospital later that day (when the pain he was experiencing appeared to have resolved), it was done so against medical advice. The following day (September 27th) when the decedent once again had a fever and was experiencing back pain, a call was made to 911 and emergency medical personnel transported the decedent from his residence to the Emergency Department at TBHC.
The decedent remained in the emergency room for two days, during which time he was evaluated by non-parties Dr. Bhaktidevi Makadia and Dr. Andras Fenyves, (emergency attending physicians), who expressed the opinion that the decedent's diabetes needed better control. Dr. Fenyves noted that Infectious Disease believed the patient was suffering from a viral syndrome. An ultrasound, performed of the abdomen, revealed that while his liver was enlarged, the gallbladder and bile ducts were normal.
The decedent was admitted to TBHC on September 28th, as he continued to have a high fever, left arm pain, chest tightness, as well as abdominal pain. After becoming tachycardic in the 120-140 range and hypoxic, he was transferred to the telemetry unit and also was in the Intensive Care Unit ("ICU"). When his kidney function and pain did not improve, further testing suggested he had a heart attack, and cardiology was consulted. In the ensuing days, the decedent was evaluated by a critical care resident and infectious disease, who noted that the decedent had suffered a heart attack and may have been septic.
On October 2nd, the decedent underwent several CT scans including that of the abdomen and pelvis, in which a finding was made of a serious kidney infection. Later that same day, the decedent allegedly fell out of his bed and was found lying on the floor.In the weeks that ensued, the decedent continued to be treated and MRIs of the spine were scheduled to rule out an abscess and the source of the pain and weakness that the decedent was experiencing, but it appears that the MRIs were never completed as the decedent was unable to tolerate the procedure. The October 10th notes of infectious disease indicate that the decedent could not move his legs.
The decedent allegedly fell twice during his admission at TBHC.
On October 14th, the medical records indicate that the decedent exhibited a disoriented mental state. When his mental status showed improvement, the decedent was moved from the ICU to a regular unit at the hospital.
On October 23rd, the decedent was transferred to the Rehabilitation Unit of TBHC for short term rehabilitation which treatment included care for "presumptive osteomyelitis." The decedent underwent a Rehabilitation Physical Therapy evaluation and his ambulation skills were characterized as "unable to perform" as he had diminished sensation below the ankles. Co-defendant, Dr. Tikko, who performed a neurological consult, found the decedent was experiencing chronic back pain and osteomyelitis. Infectious Disease recommended antibiotics (Levaquin) for the treatment of possible osteomyelitis.
Between October 23rd and October 26th, the decedent was monitored and seen by both residents, as well as defendant Dr. Valsamis, to address neurological concerns, the paraparesis which had not improved, and the lower extremity weakness he was experiencing. On November 7th, Dr. Valsamis once again examined the decedent and it was her impression that he was likely suffering from myopathy with superimposed critical care neuropathy from diabetes.
At the time, the decedent's lower extremity reflexes were absent and the hospital records indicate that the patient stated he noticed an inability to move his legs and had some throbbing pain in his back a few days prior.
At some point during the decedent's stay at TBHC, he developed two pressure ulcers, one on his feet (which appears to have resolved over time) and the other on his rectum.
On November 15, 2014, the decedent was discharged from the Rehabilitation Unit at THBC and transferred to the Center for Nursing and Rehabilitation (a private rehabilitation center) where he remained until December 4, 2014, when he was discharged to his residence (see NYSEF Doc. 59). While the decedent was at home, he was allegedly cared for by Ms. Arlington, who assisted the decedent in all aspects of daily living (the decedent had lost function of his bowel and bladder) including transferring in and out of the wheelchair from which he was confined. In addition, both a wound care doctor and a home health aide provided care twice a week at the decedent's residence (see Ms. Arrington EBT p. 50-52).
On December 26, 2014, the decedent presented to New York Methodist Hospital ("Methodist Hospital") with back pain and six days later on January 2, 2015, the decedent once again went to the Emergency Department at Methodist Hospital.
When the decedent continued to have back pain and an inability to walk, the decedent's primary care doctor (Dr. Bella) recommended that he see a neurologist (see Ms. Arrington EBT p. 53). In January 2015, the decedent saw Dr. Amit Schwartz, the Director of the Department of Neurosurgery at Maimonides Medical Center. The decedent had three office visits with Dr. Schwartz (see Ms. Arrington EBT p.55). Dr. Schwartz' assessment of the plaintiff was that he had significant neurological deficits in the lower extremity and loss of bowel and bladder control, which is "related to severe nerve damage likely from a severe L5-S1 discitis osteomyelitis" (see Dr. Schwartz's Report, annexed as NYSEF Doc. 61). Dr. Schwartz recommended that the decedent submit to further testing with respect to the stability of his lower spine and to address the source of an infection.
In late March, the decedent was once again admitted to Methodist Hospital where he passed away on April 4, 2015.
Parties' Contentions:
Here, the Court is presented with the issue as to whether defendant Dr. Valsamis departed from accepted medical practice in the care and treatment rendered to the decedent, and if so, whether that departure from accepted medical practice was the proximate cause of the injuries that allegedly occurred.
In support of defendant Dr. Valsamis' motion to dismiss, counsel offers the affirmation of Amy Sanders, M.D. ("Dr. Sanders"), who opines that Dr. Valsamis, who was not the decedent's attending physician but rather a consulting physician, did not determine the treatment that the decedent received. Dr. Sanders further asserts that all of the treatment recommended by Dr. Valsamis, regardless of whether it was ultimately administered to the decedent, was in accordance with the standard of care.
Plaintiff, by her attorneys, opposes the relief sought in defendant's motion by offering the affirmation of a board-certified neurologist, who opines that Dr. Valsamis departed from the standard of care by failing to: perform various tests; include abscess in her differential diagnosis; ensure the urgent performance of an MRI; and request a neurosurgery consult. Plaintiffs expert alleges that these failures on behalf of Dr. Valsamis prevented the timely diagnosis of the decedent's abscess and resulted in the decedent being rendered paraplegic and losing complete function of bowel and bladder.
Discussion:
A defendant moving for summary judgment in a case sounding in medical malpractice "must make a prima facie showing either that there was no departure from accepted medical practice, or that any departure was not a proximate cause of the plaintiffs injuries." Guctas v Pessolano. 132 A.D.3d 632, 633 [2d Dept 2015], quoting Matos v Khan. 119 A.D.3d 909, 910 [2d Dept 2014]. This Court finds that the defendant Dr. Valsamis has presented evidence sufficient to meet this burden.
Once the movant has made a prima facie showing, the plaintiff must submit evidence in opposition to rebut the movant's prima facie showing. Alvarez v Prospect Hosp.. 68 N.Y.2d 320 [1986]; Poter v Adams. 104 A.D.3d 925 [2d Dept 2013]; Stukas v Streiter. 83 A.D.3d 18 [2d Dept 2011]. The plaintiff must "lay bare her proof and produce evidence, in admissible form, sufficient to raise a triable issue of fact as to the essential elements of a medical malpractice claim, to wit, (1) a deviation or departure from accepted medical practice, [and/or] (2) evidence that such a departure was a proximate cause of injury." Sheridan v Bieniewicz. 7 A.D.3d 508, 509 [2d Dept 2004]; Gargiulo v Geiss. 40 A.D.3d 811-812 [2d Dept 2007]. In order to prevail on a claim for medical malpractice, "expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause." Nicholas v Stammer. 49 A.D.3d 832-833 [2008]. In addressing the issue of proximate cause, the Court notes that "[i]n a medical malpractice action, where causation is often a difficult issue, a plaintiff need 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 Hosp. Med. Ctr.. 21 A.D.3d 881, 883 [2d Dept 2005]. "A plaintiffs evidence of proximate cause may be found legally sufficient even if his or her expert is unable to quantify the extent to which the defendant's act or omission decreased the plaintiffs chance of a better outcome or increased the injury, as long as evidence is presented from which the jury may infer that the defendant's conduct diminished the plaintiffs chance of a better outcome or increased [the] injury." Semel v Guzman, 84 A.D.3d 1054, 1055-1056 [2d Dept 2011]. "The issue is whether a doctor's negligence is more likely than not a proximate cause of [a plaintiffs] injury is usually for the jury to decide." Polanco v Reed. 105 A.D.3d 438, 439 [1st Dept 2013]. It has also been held that where "a failure to treat is alleged, the plaintiff simply must show that it was probable that some diminution in the chance of survival had occurred." Borawski v Huang, 34 A.D.3d 409, 410 [2d Dept 2006], "[T]he evidence presented by the plaintiff need not eliminate every other possible cause of the resulting injury." Clarke v Limone. 40 A.D.3d 571, 571-572 [2d Dept 2007], Iv denied 9 N.Y.3d 809 [2017].
This Court finds that the defendant has established prima facie entitlement to summary judgment by the submission of the affirmation of Dr. Sanders, who opines that Dr. Valsamis fulfilled her responsibilities with respect to her position as a consulting neurologist by recommending treatment, and that her recommendations did not deviate from the standard of care nor cause or contribute to the decedent's alleged injuries. Dr. Sanders argues that the decedent's alleged injuries are a result of the attending physicians not following Dr. Valsamis' recommendations.
In opposition, plaintiff has pointed to several possible deviations from the standard of care by Dr. Valsamis. Plaintiffs expert opines that when a patient such as the decedent presents with such symptoms as spiking fever of unknown origin, complaints of back pain and lower extremity weakness, and loss of bowel and bladder control, then the standard of care dictates that the consulting neurologist inform the referring physician that the patient's situation is a neurological emergency. Despite Dr. Valsamis co-signing various doctors' notes and adding her findings, there is no indication that Dr. Valsamis spoke with any of the decedent's attending physicians regarding the decedent's alleged emergent status. Plaintiff argues that Dr Tikko, the attending physician in Rehabilitative Medicine, requested the neurology consult and was therefore relying upon Dr. Valsamis' expertise. In addition, plaintiffs expert opines that Dr. Valsamis should have appreciated the need for a neurosurgical consultation and made the referral herself, or informed the attending physician of the urgent need for a neurosurgical consultation. Further, plaintiffs expert states that Dr. Valsamis deviated from the standard of care when she didn't conduct her own physical examination of the decedent's back and sensory levels, and didn't perform sensory tests. Plaintiffs expert asserts that, had an MRI been performed, as well as a Babinski test to rule out myelopathy, the proper diagnosis would have been rendered and the infectious abscess would have been treated. Plaintiff states that the decedent was not yet paralyzed when he presented to Dr. Valsamis, and that by the time the abscess was found, decedent's injuries were irreversible due to the abscess compressing the nerves controlling those areas of the body.
It is well settled that where parties to a medical malpractice action offer conflicting expert opinions on the issue of malpractice and causation, issues of credibility require resolution by the factfinder (see Loaiza v Lam. 107 A.D.3d 951, 953 [2013]; Omane v Sambaziotis. 150A.D.3dll26, 1129 [2d Dept. 2017]: Dandrea v Hertz. 23 A.D.3d 332. 333 [2005]). Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical opinions (see Elmes v Yelon. 140 A.D.3d 1009, 1011 [2d Dept. 2016], Feinberg v Feit. 23 A.D.3d 517, 519 [2d Dept. 2005]; Shields v Baktidy. 11 A.D.3d 671, 672 [2d Dept. 2014]). This Court finds that there are issues of fact with respect to the care and treatment provided by Dr. Valsamis to the decedent. In reaching this determination, the Court considered that the experts offered differing opinions as to whether Dr. Valsamis' examinations of the decedent were adequate, whether Dr. Valsamis had a duty to ensure that the attending physicians were following her recommendations, and whether Dr. Valsamis had any direct control over the treatment the decedent did or did not ultimately receive.
Conclusion:
While the defendant Dr. Valsamis has met her burden for establishing a prima facie case for summary judgment, the plaintiff, in opposition, has met her burden to offer admissible evidence raising a question of fact as to whether Dr. Valsamis departed from good and accepted medical practice in the treatment rendered to plaintiff. The issue of credibility regarding conflicting expert testimony must be submitted to the trier of fact. Accordingly, the motion by Dr. Valsamis for summary judgment and a dismissal of plaintiffs complaint, pursuant to CPLR §3212, is denied.
This shall constitute the decision and order of this Court.