Opinion
No. 9718–14.
09-20-2017
Vincent GEBBIA and Mary Gebbia, Plaintiffs, v. NASSAU UNIVERSITY MEDICAL CENTER, Matthew C. Leidl, M.D., Winthrop University Hospital and Ronald Paynter, M.D., Defendants.
Faber & Troy Esqs., Woodbury, for plaintiff. Barlett McDonough & Monaghan Mineola, Heidell Pittoni Murphy & Bach, Garden City, for defendants.
Faber & Troy Esqs., Woodbury, for plaintiff.
Barlett McDonough & Monaghan Mineola, Heidell Pittoni Murphy & Bach, Garden City, for defendants.
ROBERT A. BRUNO, J.
| Papers | Numbered |
|---|---|
| Sequence No. 002 | |
| Notice of Motion, Affirmation & Exhibits | 1 |
| Affirmation in Opposition | 2 |
| Reply Affirmation | 3 |
| Sequence # 003 | |
| Notice of Motion, Affirmation & Exhibits | 1 |
| Affirmation in Opposition | 2 |
| Reply Affirmation | 3 |
Upon the foregoing papers, the following motions are determined as set forth below.
Sequence # 002. Motion by defendant NASSAU UNIVERSITY MEDICAL CENTER ("NUMC") for an Order pursuant to CPLR § 3212 granting summary judgment in its favor and dismissing the action against it.
Sequence # 003. Motion by defendants WINTHROP UNIVERSITY HOSPITAL ("WINTHROP") and RONALD PAYNTER, M.D. (collectively, the "WINTHROP Defendants") for an Order pursuant to CPLR § 3212 granting summary judgment in their favor and dismissing the action against them.
This is a medical malpractice action based upon allegations that defendants failed to timely diagnose and properly treat plaintiff VINCENT GEBBIA for a central retinal artery occlusion ("CRAO") resulting in a total loss of vision in his left eye. The underlying facts, gleaned from the pleadings, medical records and deposition transcripts, are essentially undisputed, except where noted.
On September 7, 2013, at some time between 6:30 and 7:30 pm, then 57–year–old plaintiff VINCENT GEBBIA experienced a sudden and painless loss of vision in his left eye. The loss of vision was not accompanied by other symptoms. Mr. GEBBIA was seen at an urgent care clinic, where he was diagnosed with retinal detachment and instructed to go directly to the WINTHROP emergency room ("ER").
Mr. GEBBIA presented in the WINTHROP ER at 9:21 pm. He was triaged, and an initial assessment was conducted by nurse Kevin Surdi at 9:30 pm. Nurse Surdi noted that Mr. GEBBIA could only see "black" out of his left eye and that his "last known normal" was 7:30 pm. Defendant RONALD PAYNTER, M.D., an ER physician, reviewed Mr. GEBBIA's chart and advanced it toward the front of the queue. Dr. PAYNTER saw Mr. GEBBIA by 9:45 pm. Dr. PAYNTER immediately called for an ophthalmology consult. He suspected CRAO, a complete blockage of a central retinal artery caused by a clot. Dr. PAYNTER performed a physical examination of Mr. GEBBIA. When he examined Mr. GEBBIA's left eye, he observed that the retina was pale white in color, as opposed to the normal pinkish, signifying a lack of blood. Dr. PAYNTER ordered an immediate head computed axial tomography ("CAT") scan, chest x-ray, electrocardiogram, blood work, the administration of 100% oxygen and the administration of anti-coagulants Heparin and aspirin. (The Heparin and aspirin were delayed pending confirmation that there was no intracranial hemorrhage ). At 9:50 pm, the stroke team was called for a consult.
Dr. PAYNTER testified that he or other ER personnel performed ocular massage on Mr. GEBBIA intermittently for about twenty minutes, with no reported change. He encouraged family members to continue massaging plaintiff's eye. This testimony conflicts with that of plaintiff MARY GEBBIA and Nicholas Milowski, plaintiffs' son-in-law, who state that they did not ever see Dr. PAYNTER perform ocular massage and that a female staff member rubbed Mr. GEBBIA's eye for "maybe one or two seconds".
The stroke team arrived at 10:05 pm. At 10:10 pm, it was confirmed that Mr. GEBBIA did not have any intracranial hemorrhage. Heparin and aspirin were administered. The stroke team determined that plaintiff was not a candidate for Tissue Plasminogen Activator ("tPA"), a clot-dissolving drug.
Dr. Michelle Yao, the on-call ophthalmologist, arrived and examined Mr. GEBBIA at 10:00 pm. She observed the telltale "cherry red spot" in Mr. GEBBIA's left eye, and diagnosed Mr. GEBBIA with a CRAO. The prognosis was "guarded." As she testified at her deposition, Dr. Yao found it likely that Mr. GEBBIA's vision would not return, based upon studies showing that the damage to the retina is irreversible after a certain period of time without oxygen. According to Dr. Yao, any known treatments, including attempts to lower the ocular pressure in order to dislodge the clot from the central retinal artery, had no provable positive effects on the restoration of vision. No known treatment had proven effective after the 90 minute window following the onset of CRAO. Dr. Yao did not recommend paracentesis or eyedrops to lower intraocular pressure because her measurement of intraocular pressure in Mr. GEBBIA's left eye showed it to be in the "low to normal" range. She did not recommend treatment in a hyperbaric chamber because there was no proven success with such treatment. She recommended further testing to determine the etiology of the CRAO, in order to minimize peripheral damage.
Hyperbaric chamber treatment was recommended by Dr. PAYNTER. WINTHROP's hyperbaric chamber was not in service at the time, so Mr. GEBBIA was referred to NUMC.
At 11:07 pm, Mr. GEBBIA was discharged from WINTHROP, with instructions to go directly to NUMC for treatment in their hyperbaric chamber. Mr. GEBBIA arrived at NUMC at 11:24 pm. Defendant MATTHEW C. LEIDL, M.D., a senior ophthalmology resident, examined Mr. GEBBIA sometime between 11:40 pm on September 7, 2013 and 12:10 am on September 8, 2013. He consulted with Dr. Yao and his superiors at NUMC, and concluded that treatment in the hyperbaric chamber would not likely improve Mr. GEBBIA's condition. Nonetheless, after explanation of the risks and benefits, Mr. GEBBIA and his family decided to proceed with the hyperbaric chamber treatment. Mr. GEBBIA was admitted to NUMC and commenced treatments in the early morning hours of September 8, 2013, which were continued during his admission. Ultimately, Mr. GEBBIA did not regain vision in his left eye.
The instant action was commenced with the filing of the Summons and Verified Complaint on October 9, 2014. The Verified Complaint asserts causes of action sounding in medical malpractice and negligence on behalf of VINCENT GEBBIA, as well as a derivative cause of action on behalf of MARY GEBBIA, his spouse.
Issue was joined as to defendants NUMC and Dr. LEIDL by service of their Verified Answer on or about November 6, 2014. Issue was joined as to defendant Dr. PAYNTER by service of his Verified Answer on or about November 19, 2014, and as to defendant WINTHROP by service of its Verified Answer on or about November 24, 2014.
The action against Dr. Leidl was voluntarily discontinued pursuant to CPLR 3217(b), by Order of this Court dated February 23, 2017.
Motion by NUMC (Seq.002).
In their Verified Bill of Particulars dated February 6, 2015 and Supplemental Verified Bill of Particulars, dated February 20, 2017 plaintiffs allege, essentially, that Dr. LEIDL and NUMC failed to timely and properly use generally accepted techniques or procedures for the treatment of CRAO that were available to reduce the risk of permanent and total vision loss. These include ocular massage; medication to treat the CRAO; eye drops to lower intraocular pressure; paracentesis to relieve the pressure in plaintiff's left eye; and rebreathing, hyperventilation, or carbogen therapy. In their Supplemental Verified Bill of Particulars, plaintiffs add the claim that defendants negligently recommended hyperbaric treatment.
NUMC moves for summary judgment dismissing the action on the grounds that it did not depart from the standard of care in the medical community, and that any alleged act or omission on the part of NUMC did not proximately cause Mr. GEBBIA's injuries. In support of its motion, NUMC submits the Affirmation of its expert physician, Charles Barasch, MD, a Board Certified and practicing Opthalmologist.
Dr. Barasch states that CRAO occurs when a clot moves into the central retinal artery, which prevents oxygenated blood from reaching the retina. Oxygen deprivation causes the retinal tissue to die permanently and irreversibly.
Dr. Barasch asserts that, in 2013, there was no known generally accepted method for treating CRAO. All studies performed as of September, 2013 did not show any treatment modality that improved the chance of restoring vision. The modalities cited by plaintiffs in their Bills of Particulars were aimed at lowering the intraocular pressure in an attempt to get the clot to dislodge. According to Dr. Barasch, none of these modalities had met with more than anecdotal success. In fact, he states, plaintiffs who had been treated with these modalities have had no greater success rate in moving the clot than those who were not treated. Dr. Barasch opines that since Mr. GEBBIA's intraocular pressure was already in the low range, it is unlikely that further attempts to lower the pressure would have been effective to dislodge the clot.
Further, Dr. Barasch notes that Mr. GEBBIA did not appear at NUMC until 11:25 pm on September 7, 2013, approximately 4–1/2 to 5 hours after the onset of left eye blindness. According to Dr. Barasch, studies have shown that retinal tissue dies within 60–120 minutes without oxygen. Dr. Barasch opines that, by the time Mr. GEBBIA appeared at NUMC, he had already sustained irreversible damage to his retina. Even if the clot could have been dislodged, his vision loss was permanent.
The Court finds that NUMC's submission is sufficient to demonstrate, prima facie, NUMC's right to judgment as a matter of law. See Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). The opinion of Dr. Barasch articulates a reasoned basis for his conclusion that there was no departure from accepted practice, and that any acts or omissions of NUMC were not a substantial factor in causing Mr. GEBBIA's injuries. Dr. Barasch's opinion is supported by undisputed facts and competent medical evidence in the record to date. See Abalola v. Flower Hosp., 44 AD3d 522 (1st Dept.2007). It is corroborated by the testimony of Dr. Yao.
The Court finds that the opposition fails to raise an issue of fact. Plaintiffs provide no expert opinion or other admissible proof to refute NUMC's prima facie showing with respect to departure or causation. See Alvarez, 68 N.Y.2d at 327 ; Stukas v. Streiter, 83 Ad3d 18 (2d Dept.2011). Accordingly, summary judgment in favor of NUMC is warranted.
Motion by Dr. PAYNTER and WINTHROP (Seq.003)
In their Verified Bills of Particulars, dated February 6, 2015 and April 28, 2015, and their Supplemental Verified Bill of Particulars, dated February 20, 2017 plaintiffs allege, among other things, that Dr. PAYNTER and WINTHROP staff failed to timely and properly use generally accepted techniques or procedures to treat Mr. GEBBIA's CRAO. In particular, plaintiffs allege that defendants failed: to perform ocular massage; to administer Timolol or Acetazolamide eye drops; to provide carbogen or rebreathing therapy; to administer thrombolytics (clot busters); to perform paracentesis, and/or to provide hyperbaric oxygen therapy. In their Supplemental Verified Bill of Particulars, plaintiffs add the claim that defendants negligently recommended hyperbaric treatment. Plaintiffs claim that the failure to timely use such techniques or procedures deprived Mr. GEBBIA of a chance to prevent his total vision loss.
In support of their motion for summary judgment, the WINTHROP Defendants submit the Expert Affirmation of Saul Melman, M.D., who is a Board Certified and practicing physician specializing in Emergency Medicine. Generally, Dr. Melman opines that the claims against the WINTHROP Defendants should be dismissed because the medical care and treatment that they provided was in accordance with good and accepted standards, and none of their acts or omissions was a substantial factor in causing any injuries to Mr. GEBBIA.
Dr. Melman opines that there were no treatments for CRAO that have proven benefit in restoring a patient's vision. Nonetheless, he states that "the standard of care for the treatment of CRAO is an attempt with some of these therapies when available and/or appropriate." Dr. Melman opines that Dr. PAYNTER and the WINTHROP staff initiated and pursued many of the therapeutic options in a timely and appropriate manner. In particular, Dr. Melman notes that: (i) that "[o]cular massage is the most commonly employed first line therapeutic intervention," and that Dr. PAYNTER and hospital staff provided same to Mr. GEBBIA intermittently throughout the ER visit; (ii) Dr. PAYNTER ordered appropriate diagnostic testing and consultations; (iii) Dr. PAYNTER ordered the administration of 100% oxygen, Heparin and aspirin (which were properly withheld pending the results of the CAT scan ); (iv) Mr. GEBBIA was given Timolol eye drops by Dr. Yao to keep his intraocular pressure low; and (v) Dr. PAYNTER appropriately arranged to transfer Mr. GEBBIA to a regional facility for treatment in a hyperbaric chamber.
Dr. Melman opines, in sum and substance, that the WINTHROP Defendants appropriately decided not to administer the other treatments listed in plaintiffs' Bills of Particulars. In Dr. Melman's view, there was no reliable scientific evidence that carbogen or rebreathing therapy is effective in treating a CRAO, so there was no obligation to provide it. Additionally, Dr. Melman noted that Mr. GEBBIA was receiving 100% oxygen through a non-rebreather mask, and could not simultaneously undergo carbogen or rebreathing therapy.
Dr. Melman explains that thrombolytics such as tPA are typically administered to a patient who has suffered an ischemic stroke caused by a clot. According to Dr. Melman, however, they carry a significant risk of causing spontaneous uncontrollable bleeding. Dr. Melman concludes, essentially, that, insofar as there is no medical evidence that thrombolytics are effective in treating a CRAO, the WINTHROP Defendants appropriately determined that the potential risk outweighed the benefit.
Similarly, Dr. Melman approved of the decision not to perform paracentesis. Dr. Melman explains that paracentesis involves inserting a needle into the eye in an attempt to relieve intraocular pressure. According to Dr. Melman, doing so increases the risk of, among other things, infection, uncontrollable leaking of ocular fluid and bleeding. Dr. Melman found that Mr. GEBBIA's intraocular pressure was at an acceptably low level, and eye drops were utilized to maintain the level. Thus, there was no medical basis for paracentesis, and there was significant risk.
In opposition, plaintiffs argue that the WINTHROP Defendants have failed to eliminate all issues of fact. They note conflicts in the deposition testimony with respect to whether or not the WINTHROP Defendants performed ocular massage for any significant length of time. Dr. PAYNTER testified that he or other ER personnel performed ocular massage on Mr. GEBBIA intermittently for about twenty minutes. MARY GEBBIA and Nicholas Milowski state that they did not ever see Dr. PAYNTER perform ocular massage and that a female staff member rubbed Mr. GEBBIA's eye for "maybe one or two seconds"
Plaintiffs also note conflicts in the deposition testimony with respect to whether or not eye drops were administered to Mr. GEBBIA. Dr. PAYNTER testified that, although Dr. Yao's notes do not document that she had administered eye drops, Dr. Yao told him during their consult that she had done so. Dr. Yao testified that she did not administer eye drops or any other medication to Mr. GEBBIA.
In addition, plaintiffs submit the Expert Affirmation of Vivien Boniuk, M.D., a Board Certified Ophthalmologist. Dr. Boniuk opines that the WINTHROP Defendants departed from good and accepted practice by failing to timely perform certain therapeutic measures, and that the such failure substantially decreased Mr. GEBBIA's chances for restoration of his vision.
Dr. Boniuk explains that with CRAO, time is of the essence, and the standard of care requires expeditious action to increase ocular circulation. Whether or not vision is restored depends on whether the clot is dislodged, and also on the retinal tolerance time to total or almost total occlusion of the blood supply.
Dr. Boniuk reviews the purpose and protocol with respect to each of the treatment modalities and concludes that all of the therapies, including ocular massage, pressure reducing eye drops, carbogen inhalation, paracentesis and tPA were indicated for Mr. GEBBIA. Dr. Boniuk notes the conflicting testimony with respect to the performance of ocular massage and the administration of eye drops. Further, Dr. Boniuk notes that carbogen inhalation, paracentesis and tPA were not performed at all.
With respect to carbogen inhalation, Dr. Boniuk opines that while it cannot be administered at the same time as oxygen, it is the superior intervention for CRAO. In Dr. Boniuk's view, carbogen should have been administered instead of oxygen therapy.
With respect to paracentesis, Dr. Boniuk opines that it was a departure from good and accepted practice to fail to perform this procedure. Although Mr. GEBBIA's intraocular pressure was "low normal," the purpose of the procedure is to lower the pressure further in an effort to dislodge the clot. In Dr. Boniuk's view, the potential benefit outweighed the relatively small risk.
With respect to tPA, Dr. Boniuk states that in 2013, tPA was a commonly used therapy for the treatment of CRAO. Acknowledging the risks presented by tPA, Dr. Boniuk nonetheless opines that tPA was indicated because it could break up the clot and allow for the return of vision. Moreover, the risk associated with tPA was bleeding. Here, according to Dr. Boniuk, once the CAT scan revealed no intra-cranial bleed, tPA should have been administered.
Dr. Boniuk opined generally that the risks of all of the above procedures were outweighed by the potential benefits. According to Dr. Boniuk, the majority of the risks cited by the defendants' experts involved risk to the eye and a loss of vision. Yet, the failure to perform the procedures, in Dr. Boniuk's view, left Mr. GEBBIA blind in the affected eye.
Finally, Dr. Boniuk states that the time when retinal damage becomes irreversible is not positively known, but it is suggested to be approximately 4–6 hours. The standard of care for CRAO is to attempt the various therapeutic options. Although it cannot be said definitively that the therapies would have worked, Dr. Boniuk opines that the failure to administer them deprived Mr. GEBBIA of a chance at restoring his vision.
Viewing the evidence in the light most favorable to plaintiffs, and affording plaintiffs the benefit of every favorable inference (see Gonzalez v. Metropolitan Life Ins. Co., 269 A.D.2d 495 [2d Dept.2000] ), the Court finds that issues of fact exist, precluding summary judgment. The record is conflicting with respect to whether and how certain treatments were performed. Further, the expert opinions are contradictory with respect to the standard of care, departure and causation. See Contreras v. Adeyemi, 102 AD3d 720, 721 (2d Dept.2013) ("[s]ummary judgment is not appropriate where the parties adduce conflicting medical opinions, as such issues of credibility can only be resolved by a jury"); Hayden v. Gordon, 91 AD3d 819 (2d Dept.2012).
Contrary to the assertions of counsel on both sides, the Court does not find either expert's opinion to be too speculative or conclusory to have probative value. Both opinions have an adequate foundation in the record (see Cummo v. Children's Hosp. of New York, 113 AD3d 405 (1st Dept.2014). Although neither expert refers to any specific outside material of a kind generally relied upon in forming a professional opinion, such as an authoritative treatise or scientific study, that does not necessarily undermine the validity of their opinions. "In some situations, the nature of the subject matter or the expert's area of special skill will suffice to support the inference that the opinion is based on knowledge acquired through professional experience." Romano v. Stanley, 90 N.Y.2d 444 (1997). To the extent that either opinion is expressed in somewhat equivocal language, it is sufficiently supported by a detailed explanation of its scientific basis to remove it from the realm of mere speculation. See Clark by Clark v. Medical College Physicians Group, 244 A.D.2d 599 (3d Dept.1997).
Finally, although plaintiffs' expert could not say that any particular therapy would have restored Mr. GEBBIA's vision, the opinion raises an issue of fact regarding causation insofar as it supports the inference that the failure to perform certain therapies diminished Mr. GEBBIA's chance of a better outcome. See Clune v. Moore, 142 AD3d 1330 (4th Dept.2016) ; Jump v. Facelle, 275 A.D.2d 345 (2d Dept.2000) ; Stewart v. New York City Health & Hosps. Corp., 207 A.D.2d 703 (1st Dept.1994).
The Court has considered the remaining contentions of the parties and finds that they do not require discussion or alter the determination herein. Based upon the foregoing it is
ORDERED, that the motion by defendant NUMC for an Order pursuant to CPLR § 3212 granting summary judgment in its favor and dismissing the action against it (Sequence # 002) is granted; and it is further
ORDERED, that the motion by the WINTHROP Defendants for an Order pursuant to CPLR § 3212 granting summary judgment in their favor and dismissing the action against them (Sequence # 003) is denied.
All matters not decided herein are denied.
This constitutes the Decision and Order of this Court.