Opinion
404708/02.
Decided September 16, 2008.
Plaintiff represented by: Jonathan Horn, Esq, Appearances.
Defendant represented by: J. David Canton of Aaronson Rappaport Feinstein Deutsch, LLP
Defendants Loren Harris, M.D., Gabor Nemesdy, M.D., Jacqueline Simonetta, P.A., and Mary Anna Licata, R.N. move for summary judgement dismissing the action as to them on the ground that it is barred by the statute of limitations. These defendants and Darryl M. Hoffman, M.D., also seek to dismiss this action on substantive grounds.
This is a medical malpractice action arising out of the performance of coronary artery bypass graft surgery ("CABG") and the replacement of plaintiff's decedent, Charles Crawford's mitral valve with a mechanical valve, on October 18, 1999 at Beth Israel Medical Center, which was named but never served in this action. The surgery was performed by cardiothoracic surgeon Dr. Hoffman, alleged to have been an employee of Beth Israel and/or Continuum Health Partners, Inc., which was also named but never served. Dr. Hoffman was assisted in the surgery by Dr. Harris, a cardiothoracic surgeon who was also alleged to have been employed by Beth Israel and/or Continuum, and Jacqueline Simonetta, P.A. Nurse Licata was the scrub nurse during the surgery. Dr. Nemesdy was the anesthesiologist. According to Dr. Hoffman, prior to the surgery and in the presence of Crawford's wife, Gertrude Crawford, the plaintiff herein, he explained the procedures and the alternatives, benefits and risks thereof, including that the mortality risk was about 4%, the risk of postoperative bleeding was about 2%, the risk of infection was 1%, and the risk of neurologic injury was about 2%. See Hoffman EBT pp 9-12
According to the deposition testimony, Simonetta harvested the vein to be used for the CABG from Crawford's leg, cannulated it, injected it with saline solution to sufficiently distend the vein to check for leaking side branches, used clips, provided by Beth Israel, to close off any leaks, and possibly may also have used some sutures to close off some leaks. See Simonetta EBT pp 9-15; See also Licata EBT p 24; Harris EBT p 10; Hoffman EBT pp 20, 40 Then the vein was handed to Dr. Hoffman who removed adventitia and looked underneath the adventitia to make sure that the vein was intact. See Hoffman EBT p 40 Usually if the vein needed cutting that was done by the surgeon and the assistant surgeon. Simonetta EBT p. 76 The surgeon and assistant surgeon would then examine and evaluate the integrity of the vein and retest it with a saline injection. Hoffman EBT p 41; Harris EBT p 11; Simonetta EBT pp 26-27; Licata EBT pp 23-24, 29-30, 63 Dr. Hoffman testified that if a leak were then encountered it would be dealt with appropriately. Hoffman EBT p 42 So, the surgeon could add clips or re-clip or suture the vein. Simonetta EBT pp 34-35; see also Hoffman EBT p 43 According to Dr. Harris (EBT p. 37) there were probably 50-100 clips placed during the surgery. Dr. Hoffman believed the clips were made of titanium. EBT p. 46 According to Dr. Hoffman (EBT p 44-45) he visually inspected the vein on multiple occasions and checked its integrity and clip placement. Dr. Hoffman stated that he used good quality segments of the vein to perform the bypass. EBT pp 21-22; see also Harris EBT p 40
Dr. Hoffman closed Crawford's chest and stayed in the operating room until the chest was closed. Hoffman EBT pp 23-24, 26-27 According to Dr. Nemesdy, the chest would have usually been closed a half hour to an hour after Protamine was administered, which in this case was at about 1:08 p.m. See Nemesdy EBT p. 25; See also chart (which indicates that Protamine was given at 13:08, i.e.1:08 p.m.) Dr. Hoffman then dictated his 2-page operative report and went across the street to eat lunch at a diner with Dr. Harris. Dr. Harris testified that it would generally take 20-30 minutes to eat. Meanwhile Simonetta closed the leg wound. If Dr. Hoffman were done with closing the chest he would not have stayed while Simonetta finished closing the leg. Simonetta EBT p. 68 According to Simonetta's recollection, Dr. Hoffman would leave "maybe like five minutes" before she were finished with a procedure. Simonetta EBT pp 68-69
According to the hospital records, Crawford left the operating room somewhere between 2:45 and 2:50 p.m. (Compare operating room log which states that the patient was out at 14:50 with the anesthesia/pain management record which states that the patient arrived at 2:45) on October 18 and was transferred to the adjacent (See Hoffman EBT p 19) room which was the "PACU", evidently the ICU. According to Dr. Nemesday (EBT p 21) they went by five minute intervals so that Crawford arrived in the ICU between 2:45 and 2:50. Dr. Nemesday testified (EBT p. 18) that the "Care Ending Time" of 2:50 p.m. on the Anesthesia/Pain Management Record represented when "you sign out the patient to the receiving end of the ICU personnel and write down the final vital signs before you leave."
While Crawford's blood pressure was adequate according to the aforementioned anesthesia/pain management record which listed after the 2:45 PACU Arrival Time a blood pressure of 115/70, it dropped precipitously soon thereafter, and from the tubes left in Crawford it became evident to a nurse that Crawford was hemorrhaging blood.
Dr. Tranbaugh, who was the chief cardiothoracic surgeon in charge of the ICU (See Simonetta EBT p. 74), was summoned. Dr. Hoffman, who was then done with lunch and was in the hospital stairwell immediately outside the ICU, was paged and ran up one flight of stairs to the ICU (Hoffman EBT pp 34-35) where Dr. Tranbaugh was at Crawford's bedside. Dr. Harris was with Dr. Hoffman and accompanied him to the ICU. Harris EBT p. 16 A surgical cause of the bleeding was suspected. Hoffman EBT, p. 38 Drs. Tranbaugh and Hoffman believed that Crawford should be immediately opened up to locate and control the bleeding source, so that was done in the ICU. Hoffman EBT pp 37-38 In addition, Crawford was administered in the ICU cardiac resuscitation involving cardiac massage, packed red blood cells, fluids and vascular suppressors which brought Crawford's pressure back up, permitting him to be brought back to the O.R. Harris EBT pp 29, 31-33 Within 10-15 minutes of Dr. Harris' arrival at the ICU, Crawford was transported back to the adjacent operating room. See Harris EBT p. 31
A 2:45 p.m. nurse's note summarized what happened as did a 3 p.m. note on the Cardiac Surgery Flow Sheet which states that the patient had been sent back to the O.R. The hospital's operating room log recites that the patient was brought back in at 15:05 (3:05 p.m.) and that various nurses were already there by 3:00 p.m. Dr. Hoffman testified (EBT p. 57) that Crawford had remained in the ICU for about 15 minutes between the two surgeries. The patient developed anoxic encephalopathy in the ICU as a result of the hypotension and massive loss of blood (Hoffman EBT pp 37, 74, 75), which allegedly left him permanently brain damaged (See e.g. G. Crawford, EBT pp 73-89; Bill of Particulars, item 17; Neurology Consult note of 10/20/99).
According to Dr. Nemesdy's deposition testimony (EBT p. 38) the 3:05 O.R. arrival time is reiterated in the Anesthesia/Pain Management record for the second operation. See also reply aff, Exh. A Dr. Nemesdy testified that that document indicated that the patient was reheparinized at 3:08. Ibid Although the operating room log listed an incising time of 3:10, Dr. Nemesdy testified effectively that an incision was not made because the patient had already been opened in the ICU. Nemesdy EBT pp 39-40 Upon exploration it was discovered that the bleeding was allegedly due to a pair of clips that had come off a side branch of the vein. Hoffman EBT pp 39, 40, 84 The vein itself had not failed. Id p. 43 Dr. Hoffman did not know who had placed the clips which came off and did not know why they had come off. Id pp 42-43 Those clips which were radiopaque were never identified or recovered from Crawford. Id 45-46 Dr. Hoffman testified that it "was impossible to retrieve those clips from the operative field and no attempt was made to do that". EBT p. 84; See also Simonetta EBT p. 57, Licata EBT p. 43 According to Simonetta clips which fell off would either end up in the thoracic cavity or the pericardium, that on subsequent x-ray it would be hard to know which clips had fallen off and that they would not necessarily be visible on x-ray. Simonetta EBT pp57-59; See also Harris EBT p. 37 The side branch was reclipped to stop the bleeding. Each of the movants, except Nurse Licata participated in the second surgery.
Dr. Harris testified that besides clips not having been put on properly there are a number of reasons why clips would come off. . . specifically the tissue being inadequate to hold them and the patient having a hypertensive episode. Harris EBT pp 38-40 Dr. Harris testified that in Crawford's case there was no indication that the clips had come off because the vein was in a weakened state (Id p. 40), and as previously noted Dr. Hoffman testified that the vein had not failed. Dr. Harris also testified that there was no evidence that Crawford, who was on constant blood pressure monitoring, had had a hypertensive episode. Id pp 38-40 Dr. Harris, who did not know why the clips had come off, testified with respect to the clips coming off that there was a reason for everything but "we just do not know what the reason is". Id 51-52
Plaintiff's counsel suggested in his deposition questioning of Dr. Hoffman the possibility that the clips might have been defective (Hoffman EBT p. 45), however since the missing clips were never identified that could not be ruled in or out as a reason why they came off during. In any event there is no claim now by any party that the titanium clips were defective. Dr. Hoffman testified that he repeatedly checked for proper clip placement or installation during the first surgery. Id 44-45 Simonetta testified that in general she had in the past seen clips improperly applied and that if she saw that she had applied a clip incorrectly she would remove it and re-clip the area. Simonetta EBT p. 64 When asked what she would look for to see if a clip was improperly applied she stated "[i]t would not be parallel, it could be off like that or it could be crossing another clip. It could be misalignment or crossing another clip". Simonetta EBT pp 65-66 When asked if clips fall off absent a problem in the way they were applied, Dr. Hoffman stated that clips become dislodged "and there is often no explanation as to why that has happened." Hoffman EBT p. 78
Following the first surgery Nurse Licata had no further contact with Crawford and following the second surgery Drs. Harris and Nemesdy had no further contact with the patient. Simonetta had contact with Crawford on November 17 and 28, 1997 as the covering P.A. on the surgical floor.
While in the hospital an infectious disease consult was obtained on October 20 due to Crawford experiencing a low grade fever. The infectious disease specialist found "no evidence of active infection at this time." See I.D. note of 10/20/99 Blood cultures obtained on the patient on October 21st and 25th grew out coagulase negative staph/gram positive cocci. The infectious disease specialist's note of October 26 indicated that the prior blood cultures most likely represented skin contamination but that infection could not be ruled out. The patient was maintained on antibiotics and two subsequent cultures taken on October 29 were negative. A further blood culture of November 6 grew out coagulase negative staph/gram positive cocci and the patient was maintained on antibiotics. The infectious disease specialist continued to follow Crawford. Blood cultures of November 8, 9, 13 and 16 were negative. A sputum culture of October 3 indicated a pseudomonas infection which was treated. A November 23 urine culture was positive, and antibiotics were prescribed. At the time of Crawford's discharge from the hospital all of his labs were negative for infection, he was afebrile, and his vital signs were stable. During the October 1999 admission, Crawford was never diagnosed with sepsis, bacteremia or bacterial endocarditis. Crawford was discharged from the hospital on December 10, 1999 and returned on December 14 for a one day admission to remove a PEG tube. Dr. Hoffman continued to see the patient until December 21, 1999.
On June 19, 2003 Crawford presented to Lenox Hill Hospital complaining of a 104 ° fever since the day before. Staphylococcus aureas bacteremia was diagnosed based on positive blood cultures. Vegetation on the heart valves could not be confirmed. He was treated with antibiotics and discharged on July 3, 2003. He returned to Lenox Hill on July 4, 2003 due to spiking fevers. He was treated with antibiotics and released on July 17. He returned to Lenox Hill on July 31 for probable heart failure. He returned to Lenox Hill for the last time on August 1, 2003 with complaints of fever and weakness. Masses consistent with vegetation were attached to the valve annulus. He was treated with antibiotics and a repeat echocardiogram showed no vegetation. Crawford was sent home on antibiotics. He expired on October 30, 2003.
Meanwhile, this action was commenced by Crawford and his wife on May 31, 2002. The complaint alleged departures from accepted standards of medical practice, a lack of informed consent and a derivative claim on behalf of the wife. After Crawford's death, the complaint was amended to add a wrongful death cause of action, in essence alleging that the defendants were negligent in failing to timely diagnose and treat the infection which led to Crawford's death.
All defendants except Dr. Hoffman seek summary judgment on statute of limitations grounds. That application is granted and the action is dismissed as to Drs. Harris and Nemesdy, Licata and Simonetta since the action was commenced more than 2 ½ years after Crawford's last contact with each of these defendants. Plaintiff who has the burden of demonstrating the applicability of the continuous treatment doctrine has failed to show that any treatment by Dr. Hoffman should be imputed to the other movants for statute of limitations purposes. Accordingly the action is dismissed as to all movants except Dr. Hoffman, based on the expiration of the statute of limitations.
This leaves Dr. Hoffman's application to dismiss the action as to him on substantive grounds. In support of this application Dr. Hoffman relies inter alia on Dr. Hoffman's deposition, some of the decedent's medical records, and the affidavits of their medical experts, Dr. Abelardo Deanda, a thoracic surgeon who is among other things, Montefiore Medical Center's director of aortic and aneurysm surgery, and Dr. Bruce Hirsch, an internist and infectious disease specialist.
Dr. Deanda asserts that the CABG and initial valve replacement procedures were indicated for the patient and that the patient "was apprised of the risks such as bleeding and infection" and that accordingly an appropriate informed consent was obtained. Dr. Deanda further maintains that the graft was checked by the P.A. and then double-checked by Drs. Hoffman and Harris before it was used during surgery and that despite the best efforts, "staples" can come off side branches of grafts in the absence of negligence. Dr. Deanda asserts that it is a known and accepted risk that a clip can come off a side branch. He asserts that the clip came off while the patient was in the ICU. He alleges that the hospital records indicate that increased chest tube drainage and decreased blood pressure were noted at 3 p.m., that such bleeding was addressed "immediately after it was detected", and that the patient was returned to the operating room within 5 minutes of the detection of increased chest tube drainage and the drop in blood pressure. Thus he opines that diagnosis of the bleeding and resuscitation were timely undertaken. He further maintains that all of the resuscitative measures were appropriate.
Dr. Hirsch in his detailed affidavit opines that Crawford did not develop bacterial endocarditis as a result of the emergency bedside opening of his chest and resuscitation in the ICU, that he lacked the clinical criteria for a diagnosis of bacterial endocarditis during his October 1999 admission and that he did not have bacterial endocarditis in 1999. Dr. Hirsch also maintains that until June 2003 Crawford's course was "completely inconsistent with bacterial endocarditis", and that an echocardiogram done in May 2003 shows that Crawford did not have that disease in May 2003. Dr. Hirsch states in essence that such disease does not wax and wane over three years and nine months but rather Crawford if he had had the disease would have succumbed in a short period of time as he did in 2003 after Staphylococcus aureus was cultured out in June 2003. Dr. Hirsch notes that the staph found in June was a completely different organism than the coagulase negative staph which was present in the October 1999 cultures. Dr. Hirsch maintains that Crawford's bleed and subsequent re-operation following the CABG/MVR did not increase his susceptibility to bacterial endocarditis, but rather that Crawford was at risk for that infection by virtue of the fact that he had prosthetic heart valves. Dr. Hirsch concludes that any claims that movants negligently caused Crawford to suffer from bacterial endocarditis, increased his risk of contracting that infection and negligently failed to diagnose and treat that infection are without merit.
Plaintiff opposes the motion with, inter alia, the redacted affirmation of a physician whose area of specialization and expertise in the areas of cardiothoracic surgery and infectious diseases are not revealed. Plaintiff's expert maintains that properly placed clips do not come off absent negligence unless the vein fails and that therefore the clips were negligently applied. The expert further believes that the clips came off before the grafting procedure or that they were never applied at all because otherwise they would have shown up on a subsequent chest x-ray due to irregular positioning. The expert then in a vague and conclusory manner and without addressing the detailed and specific allegations in movant's expert's affidavit, including that the endocarditis was not present until June 2003 and that the reason Crawford was susceptible to endocarditis was the fact that he had a prosthetic heart valve rather than anything which occurred during the October 1999 admission, asserts that the "damage" caused by the CABG left Crawford "debilitated and vulnerable to greater infections, eventually leading to repeat bouts of infective endocarditis and hospitalizations." Plaintiff's expert then baldly asserts that Crawford "died from complications of the misapplied' clip."
I reviewed in camera the physician's unredacted affirmation.
Plaintiff's expert, while not claiming that Dr. Hoffman was negligent in going out to lunch and returning when he did, maintains that there was an unreasonable delay by the healthcare providers following the CABG/MVR in responding to Crawford's massive hemorrhaging. Specifically the expert points to the 2:45 nurse's note which details, among other things, the massive bleeding and precipitous drop in pressure. The expert reconstructing the time line from deposition testimony and the hospital records, asserts that there was a 20 minute delay in opening up Crawford's chest which allegedly resulted in his bleeding out, causing Crawford's injuries. The expert maintains that Dr. Hoffman as the surgeon was responsible for the patient's post-operative care between the first and second surgeries.
The burden of prima facie establishing entitlement to summary judgment is on the movant. Where that burden is not met the application must be denied irrespective of the adequacy of the opposing papers. Following a review of all the papers, the branch of the motion which seeks dismissal of the wrongful death cause of action is granted. Dr. Hoffman prima facie eliminated the claims asserted in plaintiff's bill of particulars in essence that the endocarditis was due to the clips coming off, that malpractice resulted in an improperly diagnosed and treated infection and that the alleged malpractice resulted in Crawford's death. Even assuming arguendo that plaintiff's expert had the qualifications to offer an opinion on any of these issues, the expert's conclusory affidavit is inadequate to rebut Dr. Hoffman's prima facie showing that Crawford's death was not attributable to malpractice on the part of Dr. Hoffman. Moreover plaintiff's expert failed to address Dr. Hirsch's claim that Crawford was vulnerable to infection because he had a prosthetic heart valve. See Abalola v Flower Hosp., 44 AD3d 522; Stone v Salzer, 7 AD3d 609; Chance v Gottlieb, 33 AD3d 645; Rebozo v Wilen, 41 AD3d 457 Accordingly the wrongful death cause of action is dismissed as to Dr. Hoffman.
The branch of the motion which seeks dismissal of the lack of informed consent claim, and the plaintiff's derivative claim to the extent that it is predicated on the lack of informed consent cause of action, is granted, and those claims are dismissed. Dr. Hoffman asserted at his deposition that he obtained an appropriate informed consent from Crawford, his expert opined that an appropriate informed consent was obtained and neither plaintiff's counsel nor her expert opposed the application to dismiss this cause of action.
This leaves the claims for conscious pain and suffering and the derivative cause of action to the extent that they are premised on Dr. Hoffman's alleged departures from standards of good and accepted medical practice. This branch of Dr. Hoffman's motion is denied. While Dr. Hoffman's expert opined that a clip can come off absent negligence, that is not disputed. As observed by Dr. Harris, beside improper clip placement, a clip can come off if a vein is inadequate or if the patient becomes hypertensive. There was no evidence of either of those two latter causes of the failure of the two clips in the instant case. Dr. Deanda does not state that there are non-negligent reasons for clips coming off aside from these two causes. While it is clear that the clipped and sutured vein was checked for leaks, via the saline injection, it's not readily apparent that Dr. Hoffman, who testified that he checked proper clip placement and installation because "[i]t's in the nature of the process to check repeatedly for the integrity of the conduit." (EBT pp 44-45), checked to see that each and every one of the 50-100 clips principally placed by Simonetta, were properly aligned, parallel, not crossing another clip or not otherwise "off", (See Simonetta EBT p. 66), or whether he did so adequately.
In any event assuming arguendo that Dr. Hoffman testified that he examined the placement of each and every one of the 50-100 clips and found them to be appropriately placed, that would not entitle him to summary judgment on this claim since resolution of this issue is "dependent for its resolution on movant's credibility, and [is] one which is peculiarly within movant's knowledge". Krupp v Aetna Life, 103 AD2d 252, 263; Vitiello v Mayrich Construction Corp., 255 AD2d 182, 184; New York Practice, 4th Ed., Siegel, p. 465 In addition, assuming arguendo that Dr. Hoffman's inspection and/or placement of the two clips was inadequate, thereby resulting in injury to Crawford, Dr. Hoffman would be liable for the negligence of any subsequent tortfeasor in failing to timely and appropriately treat the bleeding in the ICU. See Hill v St. Clare's Hosp., 67 NY2d 72, 82 While Dr. Deanda's opinion on the timeliness of treatment is based on his extrapolating from the records to come up with the increased chest tube bleeding and decreased blood pressure occurring at 3 p.m., there is at least the 2:45 nurse's note which suggests that it occurred before 3 p.m. Accordingly, Dr. Hoffman has not eliminated the issue of the timeliness in dealing with post-operative bleeding.
In conclusion, Dr. Hoffman's motion is granted only to the extent that the wrongful death cause of action is dismissed as to him as is the lack of informed consent cause of action and any part of the derivative claim which is predicated on a lack of informed consent. Dr. Hoffman's application is otherwise denied. The action is dismissed as to the other movants on statute of limitations grounds.
Settle order.