Opinion
000151/2016
04-04-2019
Michelle HIEGEL, as Personal Representative of the Estate of Charles Joseph Brennan, Deceased, and Elizabeth Brennan, Plaintiffs, v. ORANGE REGIONAL MEDICAL CENTER, Pamela Murphy, M.D., Pamela J Murphy MD FACEP PLLC, Orange Emergency Services, P.C., Elena Kaznatcheeva, M.D., Middletown Medical, P.C., Defendants.
Kramer, Dillof, Livinston & Moore Attorney for Plaintiffs 217 Broadway New York, New York 10007 Catania, Mahon, Milligaram & Rider, PLLC Attorney for Kaznatcheeva and Middletown Medical PO Box 1479 Newburgh, New York 12551 Martin Clearwater & Bell LLP Attorney for Orange Regional Medical Center 245 Main Street White Plains, New York 10601 Bartlett LLP Attorney for Pamela Murphy, Pamela J Murphy MD FACEP, and Orange Emergency Services 170 Old Country Road Mineola, New York 11501
Kramer, Dillof, Livinston & Moore
Attorney for Plaintiffs
217 Broadway
New York, New York 10007
Catania, Mahon, Milligaram & Rider, PLLC
Attorney for Kaznatcheeva and Middletown Medical
PO Box 1479
Newburgh, New York 12551
Martin Clearwater & Bell LLP
Attorney for Orange Regional Medical Center
245 Main Street
White Plains, New York 10601
Bartlett LLP
Attorney for Pamela Murphy, Pamela J Murphy MD FACEP, and Orange Emergency Services
170 Old Country Road
Mineola, New York 11501
Maria S. Vazquez-Doles, J.
The following papers numbered 1 - 53 were read on the motion of the defendants, PAMELA MURPHY, M.D., PAMELA J MURPHY MD FACEP PLLC, and ORANGE EMERGENCY SERVICES, P.C. for summary judgment (Motion Sequence # 5), on the motion of the defendants, ELENA KAZNATCHEEVA, M.D., and MIDDLETOWN MEDICAL, P.C., for summary judgment (Motion Sequence # 6), and on the motion of the defendant, ORANGE REGIONAL MEDICAL CENTER, for summary judgment (Motion Sequence # 7) in this action to recover damages for personal injuries and wrongful death resulting from medical malpractice :
Notice of Motion - Affirmation of D. Dyckman, Esq. - Exhibits A-K 1-13
Notice of Motion - Affirmation of S. Milligram, Esq. - Affirmation of Uri Napchan, MD - Exhibits A-M 14-29
Notice of Motion - Affirmation of M. Bastone, Esq. - Exhibits A-N 30-45
Affirmation in Opposition of R. Futterman, Esq. - Exhibits A-E 46-51
Reply Affirmation of S. Milligram, Esq. 52
Reply Affirmation of D. Dyckman, Esq 53
At issue in this case is the propriety of the determination of the defendants not to provide the plaintiff's decedent, Charles Joseph Brennan, with thrombolytic therapy, specifically the determination not to prescribe the thrombolytic drug, tissue plasminogen activator (hereinafter "tPA"). The administration of tPA to a stroke victim may lessen the consequences of a severe stroke. The drug will break up blood clots to restore blood flow to the parts of the brain affected by the clot. The downside of tPA therapy is that the drug can cause major systemic hemorrhage. Thus, the administration of tPA is limited to certain circumstances and not all stroke victims are candidates for this therapy.
On November 20, 2014, Mr. Brennan was transported by ambulance to the emergency department at Orange Regional Medical Center (the "hospital"). He had been at home when he began to have symptoms similar to those he felt when he suffered a stroke in 2013. He told ambulance personnel that he ate a salad for lunch and then took his daily walk. When he returned home, he did not feel right and laid down on the couch to watch television. He then began to feel pressure in his head which he reported as being like the pressure he felt when he had his first stroke. He also vomited. Because of these symptoms, he called 911. The records indicate that this call was made at 5:08 PM. By the time the ambulance arrived, Mr. Brennan had vomited two more times and was unable to get up off the floor by himself. At that time his speech was reported as normal. During transport, his speech was slurred and left sided facial droop was noted. The ambulance personnel alerted the hospital that Mr. Brennan might be having a stroke. This alert triggered a "CODE NEURO" at the hospital. CODE NEURO is the hospital's stroke protocol requiring the testing and evaluation of the patient within certain time periods. This protocol was based upon the requirements of the American Academy of Neurology and American Heart and Stroke Associations. By the time Mr. Brennan had arrived at the hospital, the hospital had initiated its stroke protocol. This protocol dictates, among other things, that a patient with a symptoms of a stroke be sent for an immediate CAT Scan and be evaluated by a neurologist in addition to emergency department personnel. Dr. Kaznatcheeva was the neurologist on call and arrived at the hospital at about the same time as Mr. Brennan. The medical evaluations to be made by the physicians include the assessment of the patient for the administration of tPA. Under the protocol, tPA could only be administered to a patient at the hospital within three hours of the onset of symptoms of a stroke. The parties appear to agree that the onset of symptoms was the time of Mr. Brennan's 911 call, 5:08 PM. The protocol required that the physicians assess a patient for administration of tPA under criteria dictated by the National Institute of Health. The criteria are an assessment of symptoms, patient history and condition by category with the physicians assigning a number to each category. If the sum of these values is 4 or more, the patient is deemed a candidate for tPA. If the sum of the values is less than 4, the patient is deemed to have a mild stroke and not eligible for tPA therapy unless the patient has debilitating symptoms. Dr. Murphy's NIH evaluation of Mr. Brennan resulted in a score of 3. Dr. Kaznatcheeva's NIH evaluation resulted in a score of 2. Based upon these scores and the lack of severity of Mr. Brennan's symptoms, he was deemed to not be a candidate for administration of tPA. The CAT Scan of Mr. Brennan's brain revealed chronic changes to the brain representing damage from the previous stroke, but did not show any current symptoms of a stroke. Both Dr. Kaznatcheeva and Dr. Murphy diagnosed Mr. Brennan as suffering from a mild stroke. While Mr. Brennan did have some additional deterioration by the 9:30 PM evaluation by Dr. Kaznatcheeva, the symptoms were well outside the three hour tPA window and were not debilitating. An MRI of the brain later at 10:00 PM in the evening had a similar result as the CAT Scan, i.e. no acute infarct, only pre-existing damage to the brain. Later that evening or in the ensuing early morning hours, Mr. Brennan's condition deteriorated seriously and he lapsed into a coma. Mr. Brennan was transferred to Columbia Presbyterian Medical Center. An MRI performed at Columbia Presbyterian Medical Center revealed that Mr. Brennan had suffered a pontine stroke and was left in a locked in state with only the ability to move his eyes.
The time limit could be extended an additional 1½ hours if a clot was visualized and the patient transferred to a facility that could administer tPA surgically. The hospital was not approved for the surgical administration of tPA. However, the CAT Scan at admission (and the subsequent MRI) did not reveal any clot indicating the need for this treatment.
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This action was commenced and issue was joined. During the pendency of this action, Mr. Brennan died and Michelle Hiegel was substituted as representative of the Estate of Mr. Brennan. Discovery is complete, the plaintiff has filed a trial note of issue, and the defendants now each move for summary judgment. This decision decides all the motions as there are common documents relied upon by the parties.
ANALYSIS
A defendant moving for summary judgment in a medical malpractice action must make a prima facie showing either that there was no departure from accepted standards of medical care or that any departure was not a proximate cause of the plaintiff's injuries. Schwartzberg v. Huntington Hospital , 163 AD3d 736 (2nd Dept 2018), Mackauer v. Parikh, 148 AD3d 873 (2nd Dept 2017). Once this showing is made, the burden shifts to the plaintiff to submit evidentiary facts to rebut the defendant's prima facie showing. Schwartzberg v. Huntington Hospital , 163 AD3d 736 (2nd Dept 2018), Mackauer v. Parikh, 148 AD3d 873 (2nd Dept 2017).
Here, each of the moving defendants have demonstrated their prima facie entitlement to judgment as a matter of law dismissing the claims against them by submitting expert evidence demonstrating that the defendants did not depart from accepted standards of care in their medical treatment of Mr. Brennan. The medical records and the tests performed at the hospital demonstrate that Mr. Brennan was not a candidate for tPA therapy at any time during the 3 hour time window provided for in the hospital protocol or the 4 ½ hour window for transfer to a facility for surgical tPA therapy. The defendant doctors performed their NIH evaluations independently and both concluded that tPA therapy was not warranted. While they determined that Mr. Brennan was suffering from a stroke, the symptoms were not debilitating so as to require a different result under the NIH standard and the hospital protocol. The initial negative CAT Scan and the negative MRI result at 10:00 PM demonstrate that there was no detectable clot or damage to the brain indicative of a clot during either time window. These objective test results are consistent with Dr. Kaznatcheeva's opinion of a transient ischemic stroke which would not require tPA therapy.
In opposition, the plaintiffs fail to demonstrate the existence of a triable issue of fact. Plaintiffs' expert ignores the negative CAT Scan and MRI results and fails to discuss how these negative results would support a determination to proceed with tPA therapy. These tests show that there was no discernable blood clot to warrant clot busting drug therapy. Nor does plaintiffs' expert effectively challenge the defendants position that a higher NIH score would not require tPA therapy where the patient symptoms are not debilitating. Certainly, Mr. Brennan suffered a devastating stroke. But this result is not evidence of deviation from accepted standards by the defendants. The record on this motion does not demonstrate that the defendants deviated from accepted standards of care in treating this patient or that the treatment caused any injury sustained by the plaintiffs as a result of the stroke he suffered.
Moreover, Plaintiffs' expert, a neurologist, submits opinions on the negligence of the hospital, its employees, the emergency room physician, and the neurologist. Where a medical expert renders opinions outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion rendered. Absent such a foundation the opinion has no probative value. DiLorenzo v. Zaso , 148 AD3d 1111 (2nd Dept 2017). Here the plaintiffs' expert affirmation does not specify any specific training or expertise in nursing, emergency medicine, or hospital management. Nor does the affirmation state that he/she was familiar with the relevant literature setting the applicable standard of care, or otherwise set forth how he/she was, or became, familiar with the applicable standards of care in these areas. Thus, plaintiffs' expert opinion had no probative value regarding these areas and was insufficient to defeat the prima facie showing of entitlement to summary judgment made by the hospital and Dr. Murphy.
Accordingly, it is hereby
ORDERED that the motions of the defendants are hereby granted, the amended complaint is hereby dismissed as against all defendants, and all cross claims asserted by the defendants are also dismissed. Defendants may enter Judgment accordingly without further Order or direction of this court.
The foregoing constitutes the Decision and Order of this Court.