Opinion
110432/03.
Decided February 19, 2008.
In this medical malpractice action commenced by J. Edgar Clayton as the executor of the estate of Margaret Austin against Memorial Hospital for Cancer and Allied Diseases ("the hospital") in which it is alleged in essence that its employees failed to timely diagnose Austin's anal cancer, the hospital moves for summary judgment dismissing this action on various grounds, including collateral estoppel based on the verdict in an earlier case commenced by Austin against Dr. Moshe Shike. The motion seeks dismissal of all claims arising out of contacts on three dates . . . a September 9, 1999 visit to the hospital's Cancer Prevention and Wellness Center (the "Wellness Center") where Austin was seen by a Dr. Rafael Barrera, a November 1999 telephone call to the office of Dr. Shike, a gastroenterologist employed by the hospital who in October 1999 performed a colonoscopy ordered by Dr. Barrera, and a January 2001 phone call to the hospital's Patient Representative Office.
Background
Austin who had a history of rectal bleeding and who had had a colonoscopy in July 1998 which revealed no problems, had an appointment at the hospital's Wellness Center on September 30, 1999. The registration form of that date lists Dr. Shike as the "Admitting M.D.", and there is deposition testimony suggesting that Dr. Shike worked at the Wellness Center and had a "leadership" position there (See Guillem EBT pp 28, 85). A form filled out by a nurse at the Wellness Center that day recited as Austin's chief complaint, "longstanding history of rectal bleeding — severe diarrhea x 2-3 weeks", and as the history of the present illness, "c/o rectal bleeding since 1994 increasingly worse — 24hrs/day." Dr. Barrera, a specialist in internal medicine, nutrition and critical care, who worked at the Wellness Center and was a hospital employee, examined Austin, ordered blood work, ordered a colonoscopy and an endoscopy to be performed by Dr. Shike on October 7, 1999, obtained Austin's informed consent to those procedures and had the staff review bowel prep for the colonoscopy. According to Dr. Barrera his job was to triage, evaluate and screen patients with a risk of cancer, and he would decide what further interventions or consultations the patient needed. Dr. Barrera sent Austin to Dr. Shike for a colonoscopy and endoscopy because he believed Austin needed evaluation by a gastrointestinal expert. Dr. Barrera testified (EBT p 41) that there was no anal clinic at the hospital in 1999. Dr. Barrera did not expect Austin to return to him because the Wellness Center was a triage center. Id pp 50-51 If necessary the patient would continue being seen by the consultation service. Id 52-53 When asked why he did not order an anoscope of the patient, Dr. Barrera testified that a colonoscopy would include visualization of the anus. Id 53-54, 55 Dr. Barrera also testified, however, that he did not know what an anoscope was or whether such procedure was performed at the hospital. Id 58; But see Guillem EBT p 77-78 (which indicated that at least in 2001 anoscopic exams were performed at the hospital's colorectal clinic). When asked if referring the patient for a specific test had an impact on the consulting physician, Dr. Barrera stated that it was for the consultant to decide which test was appropriate. Id 56-57 When queried why he sent the patient for a specific test Dr. Barrera responded that the patient [who presumably was already prepped for her 7-8am procedure with Dr. Shike at the time she first saw him] (See hospital chart of 9/30/99)] was only sent for a "possible endoscopy/colonoscopy". Barrera EBT, p57
Austin had her colonoscopy and endoscopy performed by Dr. Shike on October 7, 1999. Dr. Shike noted in the chart that the chief reason for the procedures were rectal bleeding and dysphagia. Dr. Shike testified at trial that when he saw Austin he had the information from the form filled out by the nurse at the Wellness Center on September 30th. See motion, Exh. I, p 139, Lichtenstein summation; Shike trial transcript pp 69, 102; See also Id p169 Dr. Shike's post-procedure diagnosis was an "[a]nal fissure with enlarged hemorrhoidal tissue". Dr. Shike testified at his deposition in the instant case that the patient, who had a normal blood count at the time, was allegedly advised to take sitz baths and to return if her condition did not improve in two months or to call back if her condition worsened. EBT p 57 He testified similarly at his trial. Otherwise, according to defense counsel Dr. Shike told the patient to return in 10 years. See Mandell reply aft, ¶ 9. See trial transcript pp 101-102. Austin called Dr. Shike's office about a month later on November 8th and allegedly complained of increased bleeding of "hemorrhage proportion". Motion, Exh. J, p 94 According to Austin this call was made during the day and she was "pretty sure" that it was made before the close of businessLichtenstein aff, Exh. A, p 95 Austin knew she spoke to a male physician but was unsure whether that person was Dr. Shike. Id 93 She was allegedly told to continue with the sitz baths.
Dr. Shike testified at his trial that he was a salaried hospital employee, that he had no private patients and that the patients he saw were "registered hospital patients". Trial transcript p 155. He further testified at his deposition in the instant case that he had two secretaries in his hospital office and that the only other doctors in his office were fellows. The fellows would speak to patients after hours when Dr. Shike was not at the hospital or if he were away, absent, or "absolutely" unavailable. Shike EBT pp 44-45 During business hours a patient would generally be directed to speak to Dr. Shike. Id 45 Dr. Shike had no recollection of a call from Austin and had no written record of such a call from her. See motion, Exh. K
Because she needed eye surgery and allegedly because she had been told what to do, namely to take sitz baths (Lichtenstein aff. Exh. A, p 98-99), Austin sought no treatment for over a year for her rectal bleeding. Over Thanksgiving 2000 Austin visited her friends, the Claytons, in Texas where she was to have an extended stay into December and possibly until Christmas. Clayton EBT p 93 Austin during that visit complained of rectal bleeding and of feeling weak and tolerated little food. Id 104-105 Plaintiff, Mr. Clayton, the executor of Austin's estate, testified that Austin looked much worse than she had the year before. Id 106 Because she was not feeling well she left the Claytons in November and returned to New Jersey. Id 107-109 Before she left, Austin advised the Claytons that she intended to go back to the hospital. Id 107
At trial it was stipulated that a phone call was placed from Austin's phone to the hospital's Patient Representative Office on January 8, 2001, and Austin evidently testified that she made a call after the New Year's holiday. The Patient Representative Office was staffed by non-clinical, non-medical personnel. At her deposition Austin testified that she "begged" for an appointment for a colonoscopy "as soon as possible" allegedly indicating that she was "really weak, still had hemorrhoids and was still bleeding". Motion, Exh. J She took the first one available, which was with Dr. Shike. Austin did not remember the frequency of the bleeding but felt that she should have a colonoscopy yearly. She was given an appointment by the Patient Representative Office for April 30, 2001. According to Dr. Shike, the Patient Representative Office did not schedule appointments for his office. Motion, Exh. P, p 61 At his deposition, Dr. Shike testified that had Austin called him directly, as she could have done, she could have been seen in 7-10 days. EBT pp 20-21, 32-34, 49-51 As a result of the appointment allegedly given by the Patient Representative Office with Dr. Shike, Austin was referred to Dr. Jose Guillem, a colorectal surgeon employed by the hospital, who suspected cancer which was ultimately diagnosed via biopsy. The cancer was inoperable at that point, and following radiation and chemotherapy Austin succumbed to the cancer in September 2005.
Before she died however, represented by current counsel, she commenced a medical malpractice action solely against Dr. Shike. That case went to trial. At the trial the essence of plaintiff's expert Dr. David Zimmon's testimony was that the anal cancer was present in October 1999 [(Trial transcript, "T") 234; see also Id p342], that a colonoscopy was an inadequate means to assess Austin's condition ((Id 251 et seq.), that Dr. Shike therefore departed from an accepted standards of care in failing to perform or refer Austin for an anoscopic exam in October 1999 (Id 256-259, 280-282, 336), and that had an anoscopic exam been performed the cancer would have been diagnosed via a biopsy taken of the mass which would allegedly have been seen during that exam (Id 260-261). Dr. Zimmon testified that the cancer at that time was localized and smaller, and thus would have responded better to treatment. Id 268-270 Dr. Zimmon also effectively testified that if Dr. Shike did not correctly diagnose the cancer in October 1999, then, when Austin's condition failed to respond to the treatment suggested in October 1999, it should have been diagnosed through proper followup. Id 261, 257-258 Presumably this line of testimony with respect to followup was to be linked to the November 1999 phone call to the unidentified physician at Dr. Shike's office. The case put in by Dr. Shike and his expert at Dr. Shike's trial was essentially that a colonoscopy was one of several appropriate means to assess Austin's condition at the time in issue and that therefore an anoscopic exam was unnecessary (See Shike T, p 111; Greenwald T of 6/10/03 pp 9-10, 22, 31, 34-35, 60-61, 136-137, 147), that there was no evidence that the colonoscopy was improperly performed (Id 57, 96), that it was properly performed, and that in any event cancer was not present in October 1999 (See Greenwald testimony of 6/11/03, p 34).
The portion of the trial transcript that has been provided shows that plaintiff's counsel wanted a departure question to go to the jury against Dr. Shike with respect to the November 1999 telephone call by Austin to Dr. Shike's office in which she was allegedly told by an unknown physician, possibly Dr. Shike, to continue to take sitz baths. The trial judge refused to allow such a departure, to go to the jury stating, "you can't hold a doctor liable for a telephone call made to an unknown person . . ." "[The] defendant, as far as we know, is an employee of the hospital. He's not responsible for what other doctors may have said. And as far as I know he has no other doctor in his office, so I'm not charging it." Motion, Exh. L
Three departure questions were presented to the jury in that case, namely whether in October 1999 Dr. Shike departed from accepted standards of gastroenterology medical practice by not using an anoscope when he treated her in October 1999, by failing to refer Austin for an anoscopic exam when he treated Austin in October 1999, and by failing to diagnose the anal cancer in October 1999. On summation plaintiff's counsel stated that, "in a sense . . . and it is not the specific issue on the verdict sheet per se, but it is in these other issues . . . is did she have cancer that was subject to diagnosis in 99 when she saw Dr. Shike? That's an issue, obviously that underlies any decision that you have to make, and I suggest to you that the evidence is very strong to indicate that it was." See summation pp 141-142 As to the first two departures Austin's counsel urged that an anoscope was necessary, that a colonoscopic exam was inadequate to evaluate Austin's condition (Id 147-148) and that the cancer would have been seen with the anoscope (Id 149). With respect to the third departure Austin's counsel maintained that if in fact a colonoscopy was an adequate test to diagnose Austin's condition, then the cancer that was "there to be diagnosed" should have been diagnosed as a result of that test in October 1999, yet it was not. That, according to Austin's counsel, was the rationale for the third departure. Id 151-152 Defense counsel urged on summation that a colonoscopic exam was an appropriate test to evaluate Austin's condition (Id 87-89) and that in any event Austin did not have diagnosable cancer on October 1999 (Id 111, 128). The jury answered all of the questions in the negative, and did not reach the causation questions.
Plaintiff commenced the instant action during the trial of the prior action when the judge in that case refused to give a vicarious liability charge against Dr. Shike with regard to the November 1999 phone call. The hospital even before a bill of particulars was served, moved to dismiss the instant action on the grounds of res judicata and collateral estoppel and the expiration of the Statute of Limitations. Plaintiff maintained on that application that he was not asserting claims arising out of Dr. Shike's treatment in October 1999; rather he was asserting claims based on Dr. Barrera's alleged malpractice in September 1999, the hospital's alleged vicarious liability for the unidentified physician who spoke to Austin when she called Dr. Shike's office in November 1999 and for the alleged negligence of the hospital's Patient Representative Office in not giving Austin an earlier appointment.
In my February 9, 2004 order I held that any claim regarding the January 2001 phone call was not time barred, and did not rule on the substantive viability of any such claim since that issue had not been raised. I denied, without prejudice to renewal after discovery, the branch of the motion predicated on collateral estoppel/res judicata. I further noted that there appeared to be an issue as to whether any 2001 visits to the hospital constituted a resumption of the 1999 treatment or a timely return visit instigated by Austin to complain about and get treatment for matters related to earlier treatment, and denied that branch of the motion without prejudice to renewal following discovery.
The Instant Motion
The hospital now seeks to dismiss any claim regarding the September 1999 visit on the ground that the jury in the Shike action necessarily determined that Austin's cancer was either not present or was not discoverable in October 1999 and was therefore not present or not discoverable about a week earlier on September 7, 1999 when Austin was seen by Dr. Barrera at the Wellness Center. The hospital maintains that plaintiff is collaterally estoppel from asserting that Dr. Barrera was negligent in failing to diagnose the cancer in September 1999 because the jury found that Dr. Shike was not negligent in failing to diagnose the cancer in October 1999.
It is readily apparent based on the trial testimony and plaintiff's counsel's summation (See Kret v Brookdale Hospital, 61 NY2d 861) that the jury in the prior case found that Austin did not have detectible cancer in October 1999 and that based on Austin's condition and complaints in October 1999 which included the complaints set forth in the Wellness Center chart which Dr. Shike, a gastroenterology specialist, testified that he had neither the performance of nor referral for an anoscopic exam was required of him as an expert in gastroenterology and that a colonoscopy was sufficient. In light of the foregoing plaintiff is barred by collateral estoppel from asserting any claims with respect to the September 1999 treatment by the Wellness Center.
The branch of the motion which seeks dismissal of claims arising out of the November 1999 phone call solely on the grounds that those claims are barred by collateral estoppel/res judicata and the expiration of the Statute of Limitations is denied. As to collateral estoppel, it is evident that the judge in the Shike action simply held that there was a failure of proof by Austin thereby warranting a denial of a charge that Dr. Shike was vicariously liable for the doctor who allegedly answered the phone in his office. There was no determination of who that doctor was (including whether he was Dr. Shike) or who was vicariously liable for that doctor's actions. Austin's deposition transcript in the Shike action was to the effect that she was not sure whether Dr. Shike or some other physician answered the phone. The other judge found that there was no evidence that Dr. Shike employed another doctor. See Motion, Exh. L That judge further indicated that another basis for his ruling was that one can not be held liable for a phone call to an unknown person. Cf. Dehn v Kaplan, 131 AD2d 535 (2nd Dept 1987); Griggs v Children's Hospital of Buffalo, 193 AD2d 1060 (4th Dept, 1993)
Presumably at trial plaintiff will be unable to establish that a particular hospital physician (other than Dr. Shike), spoke to Austin over the phone in 1999, since inter alia, Austin herself was unsure whether she had spoken to Dr. Shike or to another physician. In addition although on this motion the hospital does not object to the admissibility of Austin's former testimony and indeed has offered it as an exhibit to its motion, it is not even clear whether Austin's testimony would be admissible at trial against the hospital, which was not a party to the Shike action and did not evidently have a chance to cross-examine her. However, I do not decide these issues since the hospital has not moved to dismiss the claims arising out of the November 1999 phone call on any grounds other than res judicata/collateral estoppel and the expiration of the Statute of Limitations. It is apparent that the Shike jury did not decide who answered the call or whether the person who did was Dr. Shike's agent, apparent, ostensible or otherwise. Nor did the jury in the Shike case make any determination with respect to Austin's care or condition in November 1999. While it may well be that collateral estoppel applies with respect to the November 1999 call, for example if it were Dr. Shike who spoke to Austin that day, it can not be said on this record as a matter of law that such doctrine applies. Thus dismissal of the November 1999 claim on res judicata/collateral estoppel grounds is denied.
The branch of the hospital's motion which seeks dismissal of the November 1999 claims based on the expiration of the 21/2 year Statute of Limitations is denied since there is an issue as to whether treatment rendered in 2001 at the hospital by its various employees, including Dr. Shike, constituted a timely return visit instigated by the patient to complaint about and seek treatment for the same condition. See McDermott v Torre, 56 NY2d 339, 406 Again there is no objection here to the admissibility of the former testimony of plaintiff or of her trial expert. Based on the testimony of Austin and Mr. Clayton and of Dr. Zimmon who testified that Austin had cancer in 1999, it is theoretically possible that a jury could find that the cancer was detectable in November 1999 and that Austin's return to the hospital after she finished her eye treatment was a timely return visit following the alleged treatment advice given via the phone in November 1999. The gap in treatment while a factor for the jury to consider is not determinative. Also, that Austin had been planning to go back "anyway" for a physical (See motion, Exh. J, p 115) does not mean that she was not also going back to complain about and seek treatment for the same condition allegedly present in November 1999, especially since she specifically asked for a colonoscopy (Id p 116). It appears that some of the delay in Austin returning was her allegedly having been told during the November 1999 phone call that she should simply continue to take sitz baths and that "there was no other help or recommendation available". Motion, Exh. J, p 98 Therefore an issue of fact has been raised as to whether there was continuous treatment of the cancer which was allegedly present in 1999. Cf. Kropiewnicki v City of New York, 29 AD3d 532; Plummer v NYCH HC, 285 AD2d 374, rvsd on other grounds, 98 NY2d 263 Accordingly the branch of the motion which seeks dismissal of the November 1999 claims based the expiration of the Statute of Limitations is denied.
The hospital also moves to dismiss all claims arising out of Austin's call to the Patient Representative Office in January 2001. The hospital relies on the affidavit of Janice Levy, its Associate Hospital Administrator, Director of Patient Representatives. According to Levy the Patient Representative Office served "as a liaison between hospital patients . . . and the hospital systems and personnel". The Patient Representative facilitated communications between patients . . . and hospital's personnel". The Patient Representatives acted as the "hospital's central grievance mechanism". See motion, Exh. T Levy asserted that the "Patient Representative Office consisted of non-clinical, non-medical personnel" and that none of that office's staff had formal medical training. In addition she maintained that the Patient Representatives did not have the role of triaging patients' medical conditions or of providing or offering to provide medical advice.
The hospital also points to Austin's deposition testimony in the Shike case in which she asserted that she spoke to an individual she could not identify, and could not recall the exact conversation except that she asked for a colonoscopy and "begged for an appointment as soon as possible", and then "took the first one available" which was on April 30th. Austin EBT p 116 Austin asserted that she "certainly told them" that she was "really weak", still had hemorrhoids and was still bleeding. Id p 117 She testified that she could not recall how often or what the frequency of the bleeding was at that time. Ibid There is no claim that after being given the April 30th appointment Austin requested an earlier one, or that she called Dr. Shike's office directly or sought a colonoscopy elsewhere.
The hospital asserts that under the circumstances including the nature of the Patient Representative Office, it had no duty to obtain an earlier appointment for Austin and that it can not be held liable for any injury to her caused by the three month gap between her asking for an appointment and her being seen.
In response plaintiff provides the affirmation of a Lawrence Ross, "a physician". Dr. Ross' specialty and familiarity with patient representative offices, much less defendant's Patient Representative Office, is not revealed. Dr. Ross claims that the patient representative should have essentially triaged the patient and obtained her complaints, which would have shown, inter alia, a history of continuous bleeding and an inability to get up, the latter of which Dr. Ross attributes to severe anemia. Based on that history the patient representative was required, according to Dr. Ross, to have spoken to a physician or put a physician on the telephone. The failure to do so and to give Austin an immediate appointment allegedly amounted to negligence and medical malpractice.
The branch of this motion which seeks dismissal of all claims arising out of the January 2001 phone call is granted. Assuming arguendo that Austin's testimony regarding a call to an unidentified person after New Year's is admissible, no evidence has been submitted rebutting the hospital's showing that the Patient Representative Office was not staffed by medically trained personnel and that its representatives did not triage patients. Dr. Ross' unsupported conclusions to the contrary are unavailing.
In conclusion the motion is granted except as to the claims involving the November 1999 phone call.
Settle order.