Opinion
61194
04-19-2019
Aaron BOVEE, as Administrator of the Estate of Thomas M. Bovee, and Lisa Bovee, Plaintiffs, v. CHAMPLAIN VALLEY PHYSICIANS HOSPITAL MEDICAL CENTER, Champlain Valley Health Network, Inc., Community Providers, Inc., Fletcher Allen Partners, Inc., the University of Vermont Health Network Inc., Jean-Paul Menoscal, M.D., Howard L. Yeaton, M.D., Victor W. Ludewig, M.D., Edward J. Hannan, M.D., Wayne A. Abrahams, M.D. and Stephen G. Hausrath, M.D., Defendants.
LaFave Wein & Frament, PLLC, Guilderland (Matthew T. Fahrenkopf of counsel), for plaintiffs. O'Connor, O'Connor, Bresee & First, P.C., Albany (P. Baird Joslin Jr. of counsel), for defendants Champlain Valley Physicians Hospital Medical Center, Champlain Valley Health Network, Inc., Community Providers, Inc., Fletcher Allen Partners, Inc. and The University of Vermont Health Network, Inc. Burke, Scolamiero & Hurd, LLP, Albany (Peter M. Scolamiero of counsel), for defendant Jean-Paul Menoscal, M.D. Phelan, Phelan & Danek, LLP, Albany (Ryan Perry of counsel), for defendant Howard L. Yeaton, M.D. Maguire Cardona, P.C., Albany (Kathleen Barclay of counsel), for defendant Edward J. Hannan, M.D. Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Donald Ford of counsel), for defendant Stephen G. Hausrath, M.D.
LaFave Wein & Frament, PLLC, Guilderland (Matthew T. Fahrenkopf of counsel), for plaintiffs.
O'Connor, O'Connor, Bresee & First, P.C., Albany (P. Baird Joslin Jr. of counsel), for defendants Champlain Valley Physicians Hospital Medical Center, Champlain Valley Health Network, Inc., Community Providers, Inc., Fletcher Allen Partners, Inc. and The University of Vermont Health Network, Inc.
Burke, Scolamiero & Hurd, LLP, Albany (Peter M. Scolamiero of counsel), for defendant Jean-Paul Menoscal, M.D.
Phelan, Phelan & Danek, LLP, Albany (Ryan Perry of counsel), for defendant Howard L. Yeaton, M.D.
Maguire Cardona, P.C., Albany (Kathleen Barclay of counsel), for defendant Edward J. Hannan, M.D.
Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Donald Ford of counsel), for defendant Stephen G. Hausrath, M.D.
Robert J. Muller, J.
These multiple defense motions include motions for summary judgment and a motion in limine addressed to certain anticipated potential hearsay testimony together with a motion to strike and, or, preclude portions of plaintiffs' experts' anticipated testimony as against one of the defendants. The action is to recover damages for injuries sustained by Thomas Bovee (hereinafter decedent) — who expired on May 5, 2013 — allegedly as a result of the negligence and medical malpractice of defendants in connection with their care and treatment of him. The claims against most of the defendants concern a period of care from October 23, 2012 through October 27, 2012. Derivative damages are also claimed by plaintiff Lisa Bovee, decedent's spouse. Causes of action as to all defendants for lack of informed consent have been discontinued, as has the entire action against Wayne A. Abrahams, M.D. and Victor W. Ludewig, M.D.
Decedent presented to the office of defendant Stephen G. Hausrath, M.D., his primary care physician, on October 23, 2012, for complaints of abdominal pain, pain in his bladder, and the inability to void. Decedent, then 51 years old, had been treating with Hausrath since 2008 and had a medical history of lipoma, high cholesterol, and unspecified hypertension. A nurse practitioner at Hausrath's office evaluated decedent and escorted him to the emergency room for further evaluation and treatment of dysuria and the inability to void.
Decedent arrived at the Emergency Department of defendant Champlain Valley Physicians Hospital Medical Center (hereinafter CVPH) still with continuing complaints of constipation and associated dysuria. The triage nurse noted the patient's chief complaint was approximately 6 weeks of worsening difficulty voiding. His blood pressure was 144/89, heart rate was 106, respiratory rate was 20, temperature was 98.6, and oxygen saturation was 100% on room air. He was a smoker and seldom used alcohol. The nurse noted the patient had hyperactive bowel sounds, but otherwise appeared generally well and there was no reported history consistent with cardiac symptoms. He had no complaints, signs or symptoms of any cardiac issues and later that afternoon he was signed over by non-party emergency room physician Wayne Abrahams, M.D. to the oncoming shift physician, defendant Jean-Paul Menoscal, M.D., a board-certified emergency room physician. Menoscal proceeded to evaluate decedent, after which a CT scan was ordered that revealed a markedly thickened sigmoid colon with submucosal edema. Menoscal discussed these findings with the on-call surgeon, defendant Howard L. Yeaton, M.D., a board-certified general surgeon. Yeaton testifies that decedent was admitted under his service given the fact that he was a possible candidate for surgery. Yeaton ordered the EKG for decedent, although the CVPH Emergency Room Record, in error, states Menoscal ordered it. Yeaton also initiated a gastroenterology consult with the recently discontinued defendant Ludewig.
The treatment plan was to undergo a colonoscopy for further evaluation of the presumed colitis - until blood work revealed an elevated white blood cell count of over 20,000 and decedent was admitted, in consultation with a CVPH hospitalist, to the surgery service under the care of Yeaton and started on intravenous antibiotics, analgesics, and antiemetics. Menoscal had no admitting privileges.
Although decedent was asymptomatic of any cardiac concerns, according to the medical records from CVPH and the deposition testimony of Menoscal and other witnesses, an EKG was ordered — as a screening event should surgery become necessary — within the admitting orders in the Emergency Department on October 23, 2012. The results revealed an "abnormal ECG" that was reviewed and signed by Menoscal who is credentialed to read EKGs. The EKG showed non-specific intraventricular conduction delay and an inferior infarct, "age indeterminate" that non-party cardiologist, Brett Hastings M.D., testifies was an inferior infarct, age indeterminate meaning - electrically the patient had a heart attack in the past, but one cannot know when it was. He further testified that it could reflect a heart attack twelve hours prior, six months prior or years prior. The record demonstrates the EKG became part of the official CVPH medical record on October 24, 2012 at 05:02:45, which would have made it available to all medical personnel at CVPH, as well as Hausrath. Menoscal has testified that his care and treatment of decedent ceased at 9:15 P.M. on October 23, 2012 once decedent was transferred to the admitting service of CVPH.
During decedent's admission to the hospital from October 23-26 his condition significantly improved; abdominal pain had decreased and his white blood cell count was decreasing. Defendant Edward J. Hannan, M.D., a board-certified general surgeon, initially saw decedent on October 26, 2012 during his rounds for the general surgery service, reviewing the medical chart and discussing his care and treatment plan with Yeaton. Hannan reviewed the medical history, complaints, laboratory results, and radiology imaging. Decedent had no complaints and did not have any signs or symptoms of any cardiac-related issues and underwent a physical examination, results of which indicated that he was free of abdominal pain, his constipation had subsided, and the abdomen was soft and non-tender. Hannan discussed with decedent any other complaints or symptoms he had and reviewed the laboratory results which showed that the white blood count was well within the normal range of 7,700. Following earlier discussions with Yeaton it was agreed that, due to decedent's significant improvement, the plan was to discharge him the following day, on October 27, 2012, after undergoing a sigmoidoscopy and colonoscopy. The discharge plan was discussed with decedent and on a second evaluation by Hannan, on October 27, 2012, he was without any complaints and his condition continued to improve. The white count remained within normal limits and his abdominal pain had subsided. Hannan made no further evaluation, testing, or referrals after October 27, 2012. Decedent had a follow-up visit with Hausrath on December 12, 2012, January 30, 2013, and April 29, 2013.
Although an EKG was intended for this visit Hausrath has testified that this was not done, in all likelihood, because the electrocardiogram equipment was not working.
There was testimony from decedent's wife that she obtained her husband's medical records from the October 2012 CVPH admission, which included the EKG performed on October 23, 2012, sometime in November of 2012 and became aware, for the first time, of the abnormal indication. She indicates she discussed the test results with her husband and maintains that her husband afterwards discussed the EKG at a follow-up visit with Hausrath. Hausrath claims that he never saw, nor was aware, that an EKG had been done during the October 2012 admission until after his patient died. Embedded in this assembly of assertions are the hearsay objections addressed in the motion in limine on behalf of Hausrath which will be analyzed hereinafter.
There is testimony from CVPH that these records were requested by decedent on or about December 20, 2012 and sent to him on or about December 26, 2012.
Decedent returned to Hausrath's office on January 30, 2013 for an evaluation of his hypertension and, during the visit, denied any chest discomfort or further cardiac-related issues. On April 29, 2013, decedent again presented to Hausrath's office for a three-month check-up of his hypercholesterolemia and hypertension. He was on antibiotics prescribed for an abscess in his colon, but denied any abdominal pain and there is no record of any cardiac complaints, signs, or symptoms.
Decedent presented back to the CVPH Emergency Department on May 5, 2013 at 12:04 with complaints of acute shortness of breath, abdominal pain, fever, nausea, vomiting, and diarrhea with the past medical history noted as positive for hypertension and hyperlipidemia. During a catheterization the cardiologist found 100% occlusion of the left anterior descending coronary artery, 99% occlusion of the circumflex, and 100% occlusion of the right coronary artery. Decedent expired at 18:30 on this same day.
The " ‘essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury’ " ( Howard v. Stanger , 122 AD3d 1121, 1123 [2014], lv dismissed 24 NY3d 1210 [2015], quoting Wexelbaum v. Jean , 80 AD3d 756, 757 [2011] [internal quotation marks and citations omitted] ). In moving for summary judgment, defendants must make a prima facie showing that they "did not depart from good and accepted medical practice or that any departure did not proximately cause plaintiff's injuries" ( Ducasse v. New York City Health & Hosps. Corp. , 148 AD3d 434, 435 [2017] ). In order to rebut this showing and survive summary judgment, a plaintiff "must submit evidentiary facts or materials" ( Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ), typically through expert testimony, and "demonstrate the existence of a triable issue of fact" (id. ). Plaintiff's expert testimony must rebut the prima facie showing made by defendants and "must demonstrate ‘the requisite nexus between the malpractice allegedly committed’ and the harm suffered" ( Dallas-Stephenson v. Waisman , 39 AD3d 303, 307 [2007], quoting Ferrara v. South Shore Orthopedic Assoc. , 178 AD2d 364, 366 [1991] ; accord Anyie B. v. Bronx Lebanon Hosp. , 128 AD3d 1, 2 [2015] ; Nolin- Strassburg v. Bashant , 62 Misc 3d 1201[A], *2 [Sup Ct, Warren County 2018] ); see Stukas v. Streiter , 83 AD3d 18, 30 [2011].
In order to meet the initial burden on these summary judgment motions the movants are 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 injury to the patient" ( Cole v. Champlain Val. Physicians' Hosp. Med. Ctr. , 116 AD3d 1283, 185 [2014]; accord Webb v. Scanlon , 133 AD3d 1385, 1386 [2015] ). "A defendant physician may submit his or her own affidavit to meet that burden, but that affidavit must be ‘detailed, specific and factual in nature’ " ( Webb v. Scanlon , 133 AD3d at 1386, quoting Toomey v. Adirondack Surgical Assoc. , 280 AD2d 754, 755 [2001] ), and must "address each of the specific factual claims of negligence raised in ... plaintiff's bill of particulars" ( Wulbrecht v. Jehle , 89 AD3d 1470, 1471 [2011] [internal quotation marks and citation omitted] ).
Motion No. 1 on behalf of Edward J. Hannan, M.D.
In substance plaintiffs allege Hannan deviated from the standards of care by failing to review decedent's entire chart prior to discharge; failing to review and, or, timely review the October 23, 2012 EKG results; failing to inform decedent about the abnormal EKG; failing to order further cardiac testing; failing to order a cardiac consult; failing to include the results of the October 23, 2012 EKG within the discharge summary; failing to inform decedent's primary care physician, Hausrath, about the EKG result; failing to refer decedent to a cardiologist or a specialist based on the EKG result, and by failing to adhere to CVPH's Chest Pain Protocols.
In support of the motion Hannan has submitted the medical records of decedent, deposition testimony, and his own affidavit to argue that, as a matter of law, the care and treatment provided to decedent was appropriate in all respects and that there were no deviations from the standard of care. He articulates multiple standards of care specifically addressing each of the factual claims of negligence raised in the bill of particulars and how he was in compliance with each of them. He opines that his duty as a general surgery physician required him to assess this previously admitted patient to determine whether or not he was a candidate for discharge and, in that capacity, he did not take on a generalized duty of care. Finally the clinical presentation of decedent during the time he saw him did not point to any signs or symptoms of any cardiac issues that would have warranted the need for any further cardiac evaluations, tests, or referrals to a cardiologist.
Hannan has demonstrated his entitlement to summary judgment shifting the burden of proof to plaintiffs to rebut by expert testimony this prima facie showing and who "must [now] demonstrate ‘the requisite nexus between the malpractice allegedly committed’ and the harm suffered" ( Dallas-Stephenson v. Waisman , 39 AD3d at 307, quoting Ferrara v. South Shore Orthopedic Assoc. , 178 AD2d at 366 ).
In opposition plaintiffs submit the affirmation of a cardiologist and the affidavit of a hospitalist, the latter currently also a primary care physician. Physicians offering opinions in medical, dental, podiatric, chiropractic, or other specialty malpractice actions must establish their credentials in order for their expert opinions to be considered by courts. They do so by being specialists in the field that is the subject of the action, or if not specialists in the same field, then by possessing the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable (see Bongiovanni v. Cavagnuolo , 138 AD3d 12, 18 [2016] ; Tsimbler v. Fell , 123 AD3d 1009, 1009 [2014] ; Mustello v. Berg , 44 AD3d 1018, 1019 [2007], lv denied 10 NY3d 711 [2008] ; Behar v. Coren , 21 AD3d 1045, 1046-1047 [2005], lv denied , 6 NY3d 705 [2006] ; Postlethwaite v. United Health Servs. Hosps. , 5 AD3d 892, 895 [2004] ). Thus, when a physician offers an expert opinion outside of their specialization, a foundation must be laid tending to support the reliability of the opinion rendered (see Tsimbler v. Fell , 123 AD3d at 1009 ; Bey v. Neuman , 100 AD3d 581, 582 [2012] ; Shectman v. Wilson , 68 AD3d 848, 850 [2009] ; Geffner v. North Shore Univ. Hosp. , 57 AD3d 839, 842 [2008] ; Bjorke v. Rubenstein , 53 AD3d 519, 520 [2008] ; Glazer v. Lee , 51 AD3d 970, 971 [2008], lv dismissed and denied 11 NY3d 781 [2008] ; Mustello v. Berg , 44 AD3d at 1019 ). The hospitalist opines that the standard of care placed all of the responsibilities of an attending physician upon Hannan at the time of discharge on October 27, 2012 and this would have included reviewing all of decedent's medical chart, laboratory results, and radiology imaging. This would have required Hannan to be familiar with the EKG and to have discussed it with the patient, as well as to have included it in the discharge summary which Hannan knew would be sent to Hausrath. The Court finds the hospitalist is foundationally qualified and possesses the requisite skill, training, education, knowledge, or experience from which it can be assumed that the opinion rendered is reliable. Expression of this opinion, more germane to the matter at hand, demonstrates a dispute significant enough to rebut Hannan's claim of no deviation from the standard of care.
The affirmation of the cardiologist is likewise sufficient to rebut the expert testimony offered by Hannan and in which the expert proceeds to opine, on the matter of proximate cause, that had Hannan taken the steps to include the results of the EKG in the discharge summary Hausrath would have been able to have his patient followed for coronary artery disease and have the "cardiac catheterization [which] would have saved him." The expert also opines that "[decedent] was suffering from significant coronary artery disease on October 23, 2012 and the EKG finding of a prior inferior infarct was an indication of that." Summary judgment in favor of Hannan is denied.
Motion No. 2 on behalf of Jean-Paul Menoscal, M.D.
Essentially plaintiff's allegations of the deviations from standards of care involve Menoscal failing to properly evaluate decedent prior to the performance of the EKG; failing to properly review the EKG of decedent; failing to obtain prior records relating to any cardiac conditions for decedent; failing to order appropriate follow-up testing after the EKG was performed; failing to order the appropriate consults including that of a cardiologist after the EKG was obtained; and failing to follow-up and discuss this abnormal finding with the patient directly. Menoscal's expert is board certified in the fields of internal medicine and emergency medicine and maintains a practice in emergency medicine at Albany Medical Center Hospital in Albany, New York.
The expert opines that decedent was not exhibiting any cardiac symptomatology prior to Menoscal taking over his care and there were no cardiac complaints voiced. The expert indicates that Menoscal had no admitting privileges and that he has no responsibility to a patient after they are admitted absent a medical necessity or a specific request to consult on a patient. Furthermore, that absent any medical need or specific request, Menoscal's responsibility to decedent ended once he was discharged from the Emergency Department and admitted to CVPH at 19:15 hours. The EKG was performed at 23:17 hours. The expert also opines that while the EKG indicated sinus rhythm, non-specific intraventricular conduction delay, and inferior infarct of indeterminate age, it did not show any findings consistent with acute ischemia which would have required follow up or further testing and immediate intervention was not necessary from Menoscal. According to the expert, it was reasonable for Menoscal to defer follow-up to the inpatient team once decedent had been admitted.
Finally, the expert observes that although there was no obligation for Menoscal to personally discuss the October 23, 2012 EKG with decedent, by decedent's wife's own testimony she and her husband were aware of the findings in the EKG since approximately November 2012, at least seven months prior to decedent's death. Accordingly, the expert concludes that the failure to discuss the EKG played no role in causing injury to, or the death of decedent in May 2013 and, based upon a thorough factual analysis, the expert further finds no departures from acceptable specific medical standards by Menoscal that caused injury to, or the death of decedent.
As already observed there is testimony from CVPH that these records were sent to decedent on or about December 26, 2012.
Menoscal has demonstrated his entitlement to summary judgment shifting the burden of proof to plaintiffs to rebut by expert testimony this prima facie showing and to "demonstrate ‘the requisite nexus between the malpractice allegedly committed’ and the harm suffered" ( Dallas-Stephenson v. Waisman , 39 AD3d at 307, quoting Ferrara v. South Shore Orthopedic Assoc. , 178 AD2d at 366 ).
Plaintiff's expert opposition is in the form of an affidavit of a physician whose discipline is that of a hospitalist and attending physician and the affirmation of a cardiologist. The hospitalist opines that the standard of care required Menoscal to inform decedent, Yeaton — the board-certified general surgeon who actually ordered the EKG — and Hausrath - that decedent had suffered a prior heart attack. This expert further observes that the standard of care required that Menoscal confirm that this information was followed up.
Plaintiff's expert cardiologist, board certified in internal medicine with a subcertification in cardiovascular disease, expresses, inter alia , the opinion, on the issue of causation, that had any of defendant healthcare providers addressed the October 23, 2012 EKG the standard of care required a cardiac work up "which would have revealed that [decedent] was suffering from three vessel coronary atherosclerotic disease." Consistent with the analysis in Bongiovanni v. Cavagnuolo (supra ) these physicians are qualified to render these opinions which the Court finds sufficiently rebut this movant's evidence. Summary judgment in favor of Menoscal is denied.
Motion No. 3 on behalf of Stephen G. Hausrath, M.D.
Hausrath's motion is styled as seeking summary judgment and, or, a trial motion in limine to preclude testimony by any party to this litigation that decedent told his wife that he discussed the results of the October 2012 EKG with Hausrath. The Court deems this a motion in limine and, or, a motion to preclude.
The motion seeks to strike portions of the expert response in which plaintiffs list four experts, i.e. , primary care, gastroenterologist, emergency room specialist and cardiologist. Although all are supposedly to summarize the entire medical record and testify to Hausrath's fault and departures from the standard of care, this motion in limine seeks to limit the testimony of the cardiologist, to strike all testimony of the gastroenterologist and emergency room specialist as it pertains to Hausrath, to strike all references to 10 NYCRR part 405 (which pertains to hospital practices), and to strike references to the 2008 Standards and Guidelines for Physician Practice Connections — Patient-Centered Nursing Home (hereinafter PPC-PCNH 2008 Edition). These matters are address ad seriatim.
Hearsay Objection
On October 23, 2012, decedent came under the care of a nurse practitioner employee of Hausrath's practice, appearing for a sick visit — after an absence since March 10, 2010 — complaining of abdominal pain without fever. The history was of abdominal pain on and off for one month. The pain became so severe that he stopped urinating. In the waiting room the nurse observed that decedent was very sick and immediately escorted him to the emergency room for treatment. Given the severity of his symptoms decedent did not receive any office treatment for his abdominal complaints and there was no further contact with Hausrath's office that day.
As already observed decedent was hospitalized from October 23, 2012 until October 27, 2012 coming under the care of Hannan, Menoscal and Yeaton, among others. Yeaton's history included the notation that "[i]If the patient worsens or clinical deterioration occurs, consider exploratory surgery and rectosigmoid resection with diverting colostomy," and he has testified that in anticipation of surgery the EKG was ordered in consideration of the anesthesiologist who would have to attend if surgery was required. Instead of surgery a colonoscopy was performed by Ludewig.
The EKG findings have been discussed hereinbefore and to reiterate, plaintiffs assert that Yeaton and Menoscal failed to inform decedent of the results, and failed to insure the results of the EKG were sent to Hausrath. The EKG results are not mentioned in the discharge summaries of Hannan and plaintiffs' claim is that if Hausrath was aware of the EKG, this would have required treatment by him, or other medical practitioners, and would have prevented the fatal heart attack that occurred in May 2013.
The CVPH audit trail indicates that Hausrath reviewed the medical record on December 12, 2012, April 29, 2012 and May 5, 2013, the latter being the date of death. December 12, 2012 was the first visit after the October hospitalization. At this office visit decedent gave a history of hospitalization for "infected intestine" with no mention in Hausrath's notes of the EKG or any cardiac complaint or symptoms.
Hausrath's access was always to the entire CVPH chart, necessarily including the October 2012 EKG.
Decedent's wife has testified that she obtained the October 2012 CVPH records for her husband a few weeks after that hospitalization and read them a few days afterwards, sometime in November 2012, noticing the EKG and seeing a notation that it was "abnormal." She claims she told her husband of the notation on the EKG and, at that time, he told her he had an appointment with Hausrath the following day.
The next proffered information is that from decedent who is alleged to have told his wife that there was a discussion at that office visit with Hausrath and that the physician retrieved the EKG on a computer monitor and told him this was not an abnormality but, rather, "only an artifact."
Hausrath denies these events and conversations occurred and contends that the proposed wife's testimony amounts to classic impermissible hearsay. Plaintiffs, on the other hand, contend that the statements will not be offered to prove the truth of the matters stated therein but, rather, to impeach Hausrath's denial that he ever discussed the EKG with his patient. Plaintiffs further contend that these out-of-court declarations portray decedent and his wife's state of mind as to whether decedent perceived a need for cardiac care and, or, that the alleged statements amount to an admission by Hausrath.
The Court reserves on this issue until the time of trial, inviting an offer of proof and arguments of counsel.
Objections to Expert Responses of Plaintiffs
Plaintiffs' bill of particulars references several sections of 10 NYCRR part 405, entitled "Hospitals—Minimum Standards." Specifically, it references 10 NYCRR §§ 405.1 (Introduction), 405.2 (Governing Body), 405.4 (Medical Staff), 405.5 (Nursing Services), 405.7 (Patients' Rights), and 405.10 (Medical Records). The Court finds that none of the sections of 10 NYCRR part 405 described in the supplemental disclosure dated February 26, 2019 have any application to Hausrath and shall accept no proof thereupon.
Plaintiffs' bill of particulars also references Hausrath's alleged violations of the PPC-PCNH 2008 Edition. These standards are voluntary standards that do not have the force of law and, or, are inapplicable to Hausrath's practice. The Court concludes that the PPC-PCNH 2008 Edition has no application to Hausrath and shall admit no proof thereupon.
This analysis turns next to a review of a plaintiffs' expert witness disclosure dated February 22, 2012 and styled as a "combined" disclosure which, in 266 pages, devotes 162 paragraphs to Hausrath, describes the facts to be relied upon and the opinions related thereto as the failure to take an EKG on a scheduled December 12, 2012 office visit; the failure to obtain and review the October 2012 EKG; and the failure to conduct proper examinations and follow-ups on June 15, 2009, December 12, 2012, January 30, 2013 and May 2, 2013. The Court also notes over 150 allegations of negligence against Hausrath. Although prolix, this disclosure is sufficient. As previously indicated, however, the Court shall not admit testimony, as it concerns Hausrath, with respect to the sections of 10 NYCRR part 405 described in the supplemental disclosure dated February 26, 2019 or the PPC-PCNH 2008 Edition.
Presuming the four proposed experts are foundationally qualified - whether their evidence should be excluded as cumulative rests within the sound discretion of the Court. ( Berry v. Jewish Bd. of Family & Children's Servs. , 173 AD2d 670, 671 [1991] ; see also, Abbott v. New Rochelle Hosp. Med. Ctr. , 141 AD2d 589, 591, 529 [1988], lv. denied 72 NY2d 808 [1988] ; Irrizary v. City of New York , 95 AD2d 713 [1983] ). There will be no blanket preclusion of plaintiffs' four expert medical witnesses at this juncture with respect to all defendants. This issue shall be revisited at trial and, if the Court deems some of it cumulative, an appropriate remedy of limitation or preclusion of that testimony will be fashioned.
Motion No. 4 on behalf of Howard L. Yeaton. M.D.
The focus of plaintiffs' claims against Yeaton is that he should have communicated the results of the EKG to the patient and the need for follow-up. The defense in this summary judgment motion argues the record demonstrates decedent and his wife, in fact, were aware of the results of the EKG and the need for follow-up, decedent's wife having testified that she had discussed the matter with her husband prior to an appointment with his primary care physician, Hausrath. This set of facts is at least, in part, contested by Hausrath and contradicted by other facts identified in this record. This cannot, in the context of a summary judgment motion, serve as prima facie evidence of that which Yeaton and his expert urge the Court to declare as a matter of law.
Next, Yeaton's expert, board certified in internal medicine and cardiovascular disease, opines that the October EKG was appropriately interpreted and reviewed by two separate medical providers and, further, that their interpretations — with which he concurs — did not demonstrate an acute cardiac condition requiring immediate intervention during the hospitalization.
Assuming, arguendo , that Yeaton had made his prima facie showing of entitlement to the relief requested, plaintiffs' expert submissions in opposition "demonstrate the existence of ... triable issues of fact" ( Alvarez v. Prospect Hosp. , 68 NY2d at 324 ). Summary judgment in favor of Yeaton is denied based upon the described factual issues.
Motion No. 5 on behalf of CVPH, Champlain Valley Health Network, Inc. Community Providers, Inc., Fletcher Allen Partners, Inc. and The University of Vermont Health Network, Inc.
The material parts of plaintiffs' complaint will not be repeated as they are elsewhere distilled in sufficient detail. Plaintiffs seek to impose liability upon CVPH and defendants Champlain Valley Health Network, Inc., Community Providers, Inc., Fletcher Allen Partners, Inc. and The University of Vermont Health Network, Inc. (hereinafter collectively referred to as CVPH) for the actions and, or, inactions of Hannan, Menoscal, and Yeaton as treating physicians under the doctrine of respondeat superior, as well as for CVPH's alleged independent acts of negligence in failing to implement a policy or procedure.
CVPH supports this motion with the expert affirmation of a hospitalist, who is also the Medical Director of Saratoga Hospital and board certified in internal medicine. This expert opines that neither CVPH nor the three physicians were obligated to advise decedent of the abnormal October 2012 EKG because: (1) decedent had presented to the hospital with complaints of abdominal pain, and problems with bowel movements and urination; (2) decedent did not complain of, or exhibit, any cardiac symptoms during his hospitalization; and (3) the October 2012 EKG was not pathologic and was unchanged from an earlier 2009 EKG that had been reviewed by Hausrath.
This EKG carries two notations: "borderline" and "probably normal."
CVPH also adopts and incorporates by reference each of the other parties' affidavits submitted in support of their motions for summary judgment. A hospitalist also opines that CVPH, as an institution, did not depart from the requisite standard of care by not having a policy requiring physicians to notify patients of all abnormal test results as such a policy is not required by accepted standards of hospital practice. Perhaps more pointedly, it is urged, CVPH complied with the standard of care in providing up-to-date information regarding a patient's care and treatment by maintaining an electronic medical records system which was accessible to physicians at the hospital as well as primary care physicians in private practice such as Hausrath.
Lastly CVPH recycles the argument that decedent and his wife were in possession of the October 2012 EKG by late December, 2012 and that decedent had an early opportunity to seek medical guidance regarding that EKG and did not follow through with Hausrath or anyone else. As already observed this set of facts is at least, in part, contested by Hausrath and contradicted by other facts identified herein. Once again, this version of the facts cannot in the context of a summary judgment motion serve as prima facie evidence of that which CVPH and its' expert urge the Court to declare as a matter of law.
The Court finds it unnecessary to further autopsy the CVPH submissions and that which is submitted in opposition. The conflicting opinions, far from conclusory, mandate that summary judgment in favor of CVPH also be denied.
The within constitutes the Decision and Order of this Court.
Therefore, based upon the forgoing, it is hereby
ORDERED that the motion for summary judgment on behalf of defendant Edward Hannan, M.D. is denied; and it is further
ORDERED that the motion for summary judgment on behalf of defendant Jean-Paul Menoscal, M.D. is denied; and it is further
ORDERED that the motion in limine and to strike portions of plaintiffs' expert witness disclosure and bills of particulars on behalf of defendant Stephen G. Hausrath, M.D. is granted in part and denied in part as set forth hereinabove; and it is further
ORDERED that the motion for summary judgment on behalf of defendant Howard L. Yeaton, M.D. is denied; and it is further
ORDERED that motion for summary judgment on behalf of defendants Champlain Valley Physicians Hospital Medical Center, Champlain Valley Health Network, Inc., Community Providers, Inc., Fletcher Allen Partners, Inc., and The University of Vermont Health Network, Inc. is denied, and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been filed by the Court together with the Notices of Motion dated March 8, 2019, March 15, 2019, March 15, 2019, March 18, 2019, and March 20, 2019, as well as the submissions enumerated hereinafter. Counsel for plaintiffs is hereby directed to promptly obtain a filed copy of this Decision and Order for service with notice of entry upon all parties in accordance with CPLR§ 5513.
Papers Reviewed :
Motion No. 1 on behalf of Edward J. Hannan, M.D.
Notice of Motion, dated March 8, 2019
Affidavit of Mackenzie E. Kesterke, Esq., sworn to on March 7, 2019 together with Exhibits "A" through "N"
Affidavit of Edward J. Hannan, M.D., sworn to on February 27, 2019
Memorandum of Law, dated March 8, 2019
(Opposition)
Attorney Affirmation of Matthew T. Fahrenkopf, Esq., dated March 28, 2019 with Exhibits "A" through "J"
Redacted Affidavit of Hospitalist, sworn to on March 26, 2019 together with curriculum vitae reviewed in camera
Redacted Affirmation of Cardiologist, dated March 26, 2019 together with curriculum vitae reviewed in camera
Memorandum of Law, dated March 29, 2019
(Reply)
Affidavit of Mackenzie E. Kesterke, Esq., sworn to on April 4, 2019
Motion No. 2 on behalf of Jean-Paul Menoscal, M.D.
Notice of Motion, dated March 15, 2019
Affidavit of Thomas A. Cullen, Esq., sworn to on March 15, 2019 together with Exhibits "A" through "U"
Affirmation of Joel M. Bartfield, M.D., dated March 14, 2019
Memorandum of Law, dated March 15, 2019
(Opposition)
Attorney Affirmation of Matthew T. Fahrenkopf, Esq., dated March 28, 2019 with Exhibits "A" through "D"
Redacted Affidavit of Hospitalist, sworn to on March 26, 2019 together with curriculum vitae reviewed in camera
Redacted Affirmation of Cardiologist, dated March 26, 2019 together with curriculum vitae reviewed in camera
Memorandum of Law, dated March 28, 2019
(Reply)
Reply Affirmation of Thomas A. Cullen, Esq., dated April 3, 2019
Motion No. 3 on behalf of Stephen G. Hausrath, M.D.
The Court notes that Hausrath also referenced in support of his motion certain papers submitted in support of a motion by Ludewig, before the action was discontinued as against him. The papers referenced include a Notice of Motion dated March 5, 2019 and Affidavit of Shawn F. Brousseau, Esq., sworn to on February 26, 2019 together with Exhibits "A" through "O."
Notice of Motion, dated March 15, 2019
Affidavit of Donald P. Ford, Esq., sworn to on March 15, 2019 together with Exhibits "A" through "L"
Affidavit of Annette Osborne, sworn to on March 14, 2019 together with Exhibits "A" through "K"
Memorandum of Law, dated March 15, 2019 with Exhibit (10 NYCRR 405)
Supplemental Attorney Affidavit of Donald P. Ford, Esq., sworn to March 26, 2019 together with Exhibits "A" through "H"
(Opposition)
Attorney Affirmation of Matthew T. Fahrenkopf, Esq., dated March 29, 2019 with Exhibits "A" through "K"
Memorandum of Law, dated March 28, 2019
(Reply)
Reply Affirmation of Donald P. Ford, Esq, sworn to April 4, 2019 together with Exhibits "A" through "D"
Reply Memorandum of Law, dated April 4, 2019
Motion No. 4 on behalf of Howard L. Yeaton. M.D.
Notice of Motion, dated March 18, 2019
Affirmation of Timothy S. Brennan, Esq., dated March 18, 2019 together with Exhibits "A" through "M"
Affirmation of Roland T. Phillips, M.D., dated March 15, 2019
Memorandum of Law, dated March 18, 2019
(Opposition)
Affirmation of Matthew T. Fahrenkopf, Esq., dated March 28, 2019 together with Exhibits "A" through "K"
Redacted Affidavit of Hospitalist, sworn to on March 27, 2019 together with curriculum vitae reviewed in camera
Redacted Affirmation of Cardiologist, dated March 26, 2019 together with curriculum vitae reviewed in camera
Memorandum of Law, dated March 28, 2019
(Reply)
Reply Affirmation of Timothy S. Brennan, Esq., dated April 3, 2019 together with Exhibit "A"
Reply Memorandum of Law, dated April 3, 2019 together with Exhibit "A"
Motion No. 5 on behalf of Champlain Valley Physicians Hospital Medical Center, Champlain Valley Health Network, Inc., Community Providers, Inc., Fletcher Allen Partners, Inc., and The University of Vermont Health Network, Inc.
Notice of Motion, dated March 20, 2019
Affirmation of P. Baird Joslin, Jr., Esq., dated March 20, 2019 together with Exhibits "A" through "X"
Affirmation of J. Robert Hayes, M.D. (with curriculum vitae), dated March 20, 2019
Memorandum of Law, dated March 20, 2019
(Opposition)
Attorney Affirmation of Matthew T. Fahrenkopf, Esq., dated March 28, 2019 with Exhibits "A" through "P"
Redacted Affirmation of Hospitalist, dated March 27, 2019 together with curriculum vitae reviewed in camera
Redacted Affirmation of Cardiologist, dated March 26, 2019 together with curriculum vitae reviewed in camera
Memorandum of Law, dated March 28, 2019
(Reply)
Affirmation of P. Baird Joslin, Jr., Esq., dated April 5, 2019