Opinion
No. 119965.
05-13-2015
Fritz DAVID, as Administrator of the Estate of Nadine Legrand, a/k/a Nadine David, Deceased and Fritz David Individually, Claimants, v. The STATE of New York, Defendant.
Levine & Grossman by William T. Burdo, Esq., for Claimants. Eric T. Schneiderman, Attorney General by Ross N. Herman, AAG, for Defendant.
Levine & Grossman by William T. Burdo, Esq., for Claimants.
Eric T. Schneiderman, Attorney General by Ross N. Herman, AAG, for Defendant.
Opinion
ALAN C. MARIN, J.
Nadine Legrand was admitted to State University's Downstate Medical Center on September 29, 2010, and gave birth, by cesarean section, to her third child in the early hours of October 1. Her newborn daughter was healthy, but tragically Ms. Legrand died the next day; she was 40 years old. The autopsy report stated that the cause of death was “Pelvic vein thrombosis with pulmonary thromboembolism due to full term intrauterine pregnancy (status post cesarean section ).” [Exh B to claimant's Attorney Affirmation, dated October 15, 2014].
Fritz David, Ms. Legrand's husband and the administrator of her estate, had also brought suit in Supreme Court, Kings County, against Dr. Ehab Abdelmalek and Dr. Mary Toussaint–Milord. Justice Bert Bunyan, by Order dated December 18, 2013, dismissed the case against Dr. Abdelmalek upon an unopposed summary judgment motion. As a result, defendant State of New York has moved to amend its answer to include the affirmative defense of collateral estoppel and to dismiss the medical malpractice claim on such basis. Claimant consented to defendant's amendment of its answer, but otherwise opposed the motion.
Mr. David is also suing on an individual basis, but for ease of reference “claimant,” in the singular, will be used herein. Additional defendants in Supreme Court were Femcare Medical Services, LLC and Downstate Obstetricians and Gynecologists, P.C.
Paragraph 21 of claimant's amended bill of particulars, dated February 1, 2012, reads as follows:
“The following persons are presently known to have committed the acts of negligence and medical malpractice: Mary Toussaint–Milord, M .D., Ehab Abdelmalek, M.D. Claimant is unaware of the names of any additional persons that may have committed the acts of negligence and medical malpractice and were improperly supervised, trained and hired. Claimant reserves the right to supplement this response, should such information become available.” [Defendant's Affirmation in Support, exhibit 2].
On February 29, 2012, Mr. David supplemented his bill of particulars, by inserting the names of two nurses—Jacqueline McCrae–Clark and Migdalia Mojica—to the list of those who had committed negligence and medical malpractice. In addition, David's supplemental pleading added language which included the following (referring to the two doctors and the two nurses):
“The manner in which each of the above named individuals was negligently hired, trained, retained and /or supervised was that these individuals failed to administer indicated and necessary medication to the claimant's decedent.” [Id ].
Affirmation of Obstetrician: The Record of Treatment
Claimant submitted the affirmation of a physician (“Dr. R.”), board certified in obstetrics and gynecology, dated October 14, 2014, which is comprised of 60 paragraphs [Claimant's affirmation in opposition, exhibit E]. What follows in this part is drawn from the doctor's affirmation.
On May 10, 2010, Ms. Legrand was seen by Dr. Toussaint–Milord, who confirmed that she was pregnant—with an estimated delivery date of October 19, 2010. Legrand's pregnancy proceeded normally until September 29 when, during a scheduled visit to Toussaint–Milord, her blood pressure was 133/85. Because of the elevated reading, the doctor sent her patient to SUNY Downstate Medical Center as a precaution to check for preeclampsia, a condition that, among other things, can harm the kidneys.
The hospital diagnosed Legrand with mild preeclampsia and admitted her in the early afternoon of September 29. She was seen by Dr. Yvonne Chak, a resident, who found her at high risk for developing deep vein thrombosis. However, according to Dr. R., Dr. Chak failed to score the risk high enough—by not factoring in the patient's age and that she would be immobile because bed rest had been ordered.
On the morning of September 30, Legrand's oxygen saturation level was recorded as below normal on three occasions (84%, 68% and 79%), although at 6:16 a.m., it was an acceptable 97%. Dr. R. stated that the record does not indicate if the abnormal levels were recognized by any nurse or resident or reported to an attending physician.
A Fibrinogen test taken at 9:56 a.m. showed a reading of 484; the normal range falls between 200 and 400. Fibrinogen, a protein that assists in clotting, is produced by the liver, and an elevated level can “indicate the presence of thrombus ” [Paragraph 11 and footnote 4].
At 3:05 p.m. on the same day (September 30), the chart indicated that the plan was to induce labor, but a physical examination an hour later showed, according to Dr. R.: “her cervix to be fingertip dilated, long and posterior ... she was still remote from vaginal delivery at this time” [Paragraph 14].
At 7 p.m., Dr. Yu, a resident, commenced induction with the placement of a vaginal suppository. An examination at 10 p.m. found that the patient's cervix was dilated 2 centimeters and 50% effaced.
Very early the next morning, October 1, fetal monitoring showed that the fetus was experiencing heart rate decelerations, and Dr. Toussaint–Milord decided to perform a cesarean section (C-section) “stat.” In anticipation of the C-section, the drug Heparin was stopped. A baby girl was born at 4:50 a.m., and Ms. Legrand was brought to the labor and delivery recovery room.
Dr. Agrawal, a resident, at 6:40 a.m. completed a new “Deep Vein Thrombosis Prophylactic Guideline and Physician Orders” form, assigning a score that fell within the high risk category for the development of DVT. Dr. R. said that the assigned score should have been higher because of the patient's age, immobility and postpartum state. Dr. R. went on to note that Dr. Agrawal ordered the resumption of Heparin “but delayed its start to almost 24 hours later, at 6:00 AM” the next day, October 2 [paragraph 17].
At 10:45 a.m., on October 1, Dr. Smythe, a resident, noted that the patient's pain was inadequately controlled. Legrand was given Toradol, and by noon, Dr. Toussaint–Milord indicated that Ms. Legrand felt better because of the Toradol.
Just after noon, at 12:04, the patient's Fibrinogen level was again elevated—to 479. Later in the evening, at 9:44 p.m., the reading was 484. On October 2, at 6:05 a.m. Legrand had a result from what is known as the D–Dimer test that Dr. R. said may be indicative of “significant blood clot formation.”
Dr. R. described that Ms. Legrand was seen at 10:40 a.m. by Dr. Abdelmalek, who noted that Ms. Legrand's pain was well controlled, but that she had the same elevated D–Dimer result as at 6:05 a.m. and her Fibrinogen score was also high at 539. At 2 p.m., Dr. Toussaint–Milord recorded that Legrand's pain was well controlled and Heparin would be continued.
At 5:52 p.m., Ms. Legrand was transferred from the labor and delivery department to the postpartum floor. At 10:35 p.m., nurse Jennifer Christie assisted the patient to the bathroom; Legrand was then heard calling for help. The nursing staff found her on the bathroom floor, conscious, but unable to get up without assistance. Dr. Abdelmalek and Dr. Chak were called and evaluated Legrand.
The patient was assisted back into bed. Her blood pressure was 84/41 and the oxygen saturation level was 64%. A code was called; and the code team defibrillated Ms. Legrand twice, administered six rounds of epinephrine and atropine, two rounds of bicarbonate and two rounds of calcium chloride. This was unsuccessful, and Nadine Legrand died at 10:59 p.m, October 2, 2010.
In addition, Dr. R. had explained that the protocol of administering Heparin, which is known as prophylactic Heparin therapy or Heparin prophylaxis, is done not only to prevent DVT, but also a pulmonary embolism. Dr. R. said that the normal respiratory rate for an adult female at rest is 12–20. Legrand's respiratory readings were initially elevated following her C-section, which according to Dr. R., was to be expected. The reading at 6:40 a.m. on October 1 was 24, it went to 30 at 7:15 a.m. and back to 24 at 9:00 a.m. From 10 a.m. to 7 p.m., “[t]he values quickly stabilized ... as her recovery from the surgery continued”—there were 11 readings in this time period, all at either 18 or 20 [paragraph 55].
This normalizing trend would have been expected to continue, said Dr. R., who observed that while some of the readings were normal, many again became abnormal. From 8:00 p.m. on October 1, the patient's respiratory rate was taken every hour through 11 a.m. on October 2, then generally, every two hours until 7 p.m. and finally at 10 p.m. on October 2—an hour before Ms. Legrand's death. The two highest readings of 25 and 26 were recorded at 10 p.m. (October 1) and 2 a.m. (October 2). The last six readings from 1 p.m. to 10 p.m were 19, 19, 24, 17, 22 and 22. Dr. R. gave the opinion that “[t]his type of alternating respiratory rate between normal and abnormal is [a] common finding in pulmonary embolism ” [paragraph 56].
Affirmation of Obstetrician: Conclusions
The departures from accepted medical practice Dr. R. found were as follows:
a) The “nursing staff and resident staff at SUNY Downstate” departed by failing to report the significant decreases in oxygen saturation levels and Legrand's complaint of a headache to an attending physician [paragraph 47]. Dr. R. says that had such been reported, the patient would have been worked up and such workup would have revealed the presence of pulmonary embolism and pelvic vein thrombosis with appropriate treatment then being instituted. If done timely, the patient's death would have been averted. No persons are named here.
b) The “nursing staff and resident staff at SUNY Downstate” departed by failing to resume the use of the pulsoximeter at 3:38 p.m.; the standard of care required continuous monitoring of oxygen saturation levels [paragraph 48]. Again, no names are presented.
c) Dr. Chak departed from the standard of care by failing to note the significance of—and act upon-the drop in oxygen saturation levels. Dr. Chak saw Legrand at 9:30 a.m. on September 30, and the note indicates that she discussed the patient with Dr. Toussaint–Milord and Dr. Abdelmalek. Dr. R. concludes, “even assuming Dr. Chak was aware of this significant incident, but failed to report it to these attending physicians when they spoke, such failure constituted a departure from accepted standards of care ...” [paragraph 49].
d) In Dr. R.'s opinion, “assuming that Dr. Chak did report the incident to these physicians,” it was a departure for Dr. Abdelmalek to fail to act upon such information. Had Dr. Chak not so reported, Dr. Abdelmalek should have made inquiry which would have revealed “this strong evidence of pulmonary embolism and an immediate work-up could have been initiated” [paragraph 50].
e) Dr. Agrawal, a resident, departed by delaying resumption of Heparin until almost 24 hours after the C-section. It should have been resumed 8 hours later, resulting in the patient missing two doses of Heparin. Dr. R. added that the placental abruption at birth did not excuse the delay.
f) Dr. Abdelmalek departed by failing to recognize the signs and symptoms of pulmonary embolism after the C-section, most specifically with regard to what Dr. R. concluded was Legrand's respiratory rate abnormalities.
g) Dr. Abdelmalek departed by failing to recognize the significance of, and act upon, the elevated Fibrinogen and D–Dimer levels.
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The final paragraph of the affirmation states that “each of the aforementioned departures by Dr. Abdelmalek, Dr. Chak, Dr. Agrawal and the resident and nursing staff at SUNY Downstate Medical Center were substantial contributing factors in Mrs. Legrand suffering a fatal pulmonary embolism ” [paragraph 60].
The Court assumes that Dr. R. meant that each departure was “a substantial factor,” as per PJI 2:70.
Claimant's supplemental bill of particulars names Dr. Toussaint–Milord, Dr. Abdelmalek, and two nurses (McCrae–Clark, R.N. and Mojica, R.N.) as having committed departures from accepted medical practice.
Dr. R. does not explain in his affirmation what act or omission was imputed to either or both nurses that represented departures from accepted medical practice. Nurses, as health care providers, can be subject to medical malpractice, but a factual foundation is necessary (Bleiler v. Bodnar, 65 N.Y.2d 65 [1985] ; Schmitt v. Medford Kidney Ctr., 121 AD3d 1088 [2d Dept 2014] ).
Dr. Agrawal, a resident, is not named in the supplemental bill of particulars and thus defendant did not receive proper notice that they had to defend Agrawal's care of the patient. Dr. R. does not conclude, nor state a conclusion, that Dr. Toussaint–Milord committed malpractice. That leaves Dr. Abdelmalek, who is both named in the bill of particulars and charged by Dr. R. with malpractice (and causation).
Setting aside the question of whether, and under what circumstances, the acts or omissions of an attending physician like Dr. Abdelmalek can be the subject of suit in the Court of Claims , this motion comes down to whether the summary judgment determination in favor of Abdelmalek in Supreme Court, Kings County, forecloses the action here as collateral estoppel.
It is undisputed that Dr. Abdelmalek and Dr. Toussaint–Milord were attending physicians; for example, see paragraph 49 of the affidavit of Dr. R. See also Seiden v. Sonstein, 127 AD3d 1158 (2d Dept 2015).
The term collateral estoppel will be used here because the parties do. Courts often use a phrase like “res judicata and/or collateral estoppel” (State of New York v. Zurich Am. Ins. Co., 106 AD3d 1222, 1223 [3d Dept 2013] ). Strictly speaking, collateral estoppel is issue preclusion, and res judicata, claim preclusion (Siegel, New York Practice, 5th ed, supp 2015, § 443). They often seem to overlap because foreclosing a particular issue may well foreclose the claim or suit as well.
The Court of Appeals has held that there are two requisites for invoking collateral estoppel: “First, the identical issue necessarily must have been decided in the prior action and be decisive of the present action, and second, the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination [citations omitted]” (Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 [1985] ).
Claimant contends that summary judgment does not satisfy the standard for collateral estoppel, arguing that the motion before Justice Bunyan was unopposed, and thus, there was not a “full and fair opportunity to contest the prior determination.” However, a summary judgment determination does trigger collateral estoppel.
In Windley v. City of New York, 104 AD3d 597 (1st Dept 2013), the appellate court looked back to a prior action involving these two parties and a building owner, which had successfully argued that it, 4761 Broadway Associates, LLC, did not own, control or maintain the staircase that Ms. Windley fell on. The Court ruled: “The Transit Authority had the requisite full and fair opportunity to litigate the issue in the prior action, but it failed to do so, and it has not offered any explanation for this failure (see Academic Health Professionals Ins. Assn. v. Lester, 30 AD3d 328, 329 [1st Dept 2006] )” 104 AD3d at 598. See also Collins v. Bertram Yacht Corp., 42 N.Y.2d 1033 (1977) ; QFI, Inc. v. Shirley, 60 AD3d 656 (2d Dept 2009).
The cases claimant cites are not persuasive: Weston v. Cornell Univ., 116 AD3d 1128 (3d Dept 2014) ; Matter of Bubel v. Board of Educ. of the Saugerties Cent. Sch. Dist., 117 AD3d 1157 (3d Dept 2014) and State of New York v. Zurich Am. Ins. Co., 106 AD3d 1222 (3d Dept 2013).
Weston was a breach of contract and sex discrimination suit brought by an associate professor who sought a full professorship with tenure. A separate Article 78 motion was dismissed because Cornell's internal procedures were complied with; however, the Third Department, reversing the trial court, held that collateral estoppel did not apply because the merits of breach of contract and discrimination were not decided as part of the Article 78 proceeding.
In Bubel, the defendant, seeking dismissal of a suit by a teacher for recall following a layoff, pointed to a case brought by a different teacher subject to the layoff, which was dismissed as time barred. The issue of whether Ms. Bubel was entitled to more seniority, which would have improved her chances of recall, had not been decided.
The Zurich case was one for reimbursement for ground water and soil contamination caused by a gasoline station. Zurich American had successfully defended a suit brought by the property owner for insurance coverage, but could not defeat the subject suit because of a lack of privity between the plaintiffs in the two cases.
Finally, no issue has been raised that the basis for medical malpractice involving Dr. Abdelmalek's treatment of Ms. Legrand would somehow differ in the Court of Claims from in Supreme Court. Compare for example, Morris v. State of New York, 71 AD3d 492 (1st Dept 2010) and Morris v. Eversley, 282 F Supp 2d 196 (SD N.Y.2003), the latter involving a section 1983 civil rights suit.
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In view of the foregoing, and having reviewed the parties submissions, IT IS ORDERED that defendant's motion No. M–85780 is granted and claim No. 119965 is dismissed.
The Court reviewed from defendant: a Notice of Motion with an Affirmation in Support (including exhibits 1 through 12), dated October 8, 2014; a Reply Affirmation in Support of State's Motion to Amend Its Answer, and for Collateral Estoppel, dated November 17, 2014; and a Reply Affirmation of Ross N. Herman, AAG, in Support of Defendant's Summary Judgment Motion (including exhibits P through U), dated November 18, 2014.
There was a prior motion brought by defendant (No. M–84377 for summary judgment), dated December 6, 2013, that has effectively been superseded by this collateral estoppel motion, No. M–85780.
The Court reviewed from claimant: an Attorney Affirmation (including exhibits A through C), dated October 15, 2014; and an Affirmation in Opposition (including exhibits A through E), dated November 10, 2014. This motion was fully submitted prior to receipt of the letter from claimant's attorney to the Court (copy to the defendant), dated December 18, 2014.
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Further, a prior motion, dated December 6, 2013, brought by defendant for summary judgment, No. M–84377, is denied as moot.