Opinion
K1-2010-1582
06-27-2017
Daniel J. Kubera, Plaintiff, v. Anthony J. Bartholomew, M.D., BETH WLODAREK, RPA-C., G. JAY BISHOP, M.D., ANDREW J. LANDIS, M.D., MEDICOR ASSOCIATES, INC., MEDICOR ASSOCIATES OF CHAUTAUQUA, BROOKS MEMORIAL HOSPITAL, and THOMAS BURNS, M.D., Defendants.
THE MISERNDINO LAW FIRM Attorneys for Plaintiff Joyce Ellen Miserndino, Esq., appearing of Counsel RICOTTA & VISCO Attorneys for Defendants Bartholomew, Bishop, Landis and Brooks Memorial Hospital Katherine V. Markel, Esq., of Counsel NOTARO & LAING Attorneys for Defendant Wlodarek Charles L. Notaro, Esq., of Counsel FELDMAN, KIEFFER, LLP Attorneys for Defendant Burns Lauren A. Heimer, Esq., of Counsel MARSHALL, DENNEHY, WARNER, COLEMAN & GIGGIN Attorneys for Defendant Medicor Associates Thomas M. Lent, Esq., of Counsel
THE MISERNDINO LAW FIRM Attorneys for Plaintiff Joyce Ellen Miserndino, Esq., appearing of Counsel RICOTTA & VISCO Attorneys for Defendants Bartholomew, Bishop, Landis and Brooks Memorial Hospital Katherine V. Markel, Esq., of Counsel NOTARO & LAING Attorneys for Defendant Wlodarek Charles L. Notaro, Esq., of Counsel FELDMAN, KIEFFER, LLP Attorneys for Defendant Burns Lauren A. Heimer, Esq., of Counsel MARSHALL, DENNEHY, WARNER, COLEMAN & GIGGIN Attorneys for Defendant Medicor Associates Thomas M. Lent, Esq., of Counsel Frank A. Sedita III, J.
On March 26 2008, the plaintiff suffered a subarachnoid hemorrhage during brain surgery at Gates Vascular Institute in Buffalo, NY. The plaintiff is not suing the surgeon or the Institute. He is, instead, suing a host of medical providers who treated him before the surgery. They are moving for summary judgment after several years of litigation. The question before the court is whether they are entitled to that relief.
Defendant Matthew O. Bartholomew, M.D. was the plaintiff's primary care physician. Dr. Bartholomew was a member of defendant Medicor Associates of Chautauqua practice group, which also included defendant G. Jay Bishop, M.D., defendant Andrew J. Landis, M.D. and defendant Beth Wlodarek, a Physician's Assistant. The plaintiff was also treated by defendant Thomas Burns, M.D., an Emergency Room physician at defendant Brooks Memorial Hospital in Dunkirk, NY.
The plaintiff — whose deposition testimony was taken over three days in July of 2014 — essentially portrays the defendants as unconcerned and/or incompetent in the face of his glaring stroke symptoms and his repeated declarations of stroke, which he suggests occurred on March 11, 2008. Plaintiff claims that while installing rugs that day, he suddenly felt a shooting pain in his left ear and was blinded by a bright light, which caused him to collapse. The plaintiff further claims that he initially endured two or three hours of pain — described as "ten" on a scale of one-to-ten — on the left side of his head and that the pain worsened over the next two days. He did not go to a hospital for treatment.
The plaintiff was seen at Medicor Associates on March 14, 2008. He claims to have reported the March 11th incident and its symptoms to PA Wlodarek, adding that he was still dizzy. The plaintiff denies that he complained of pain and pressure in the sinus area or that he was diagnosed with a sinus infection.
PA Wlordarek's March 14, 2008 treatment notes indicate the plaintiff contacted Medicor Associates with complaints of sinus pain, headache and nasal discharge, all of which were confirmed during a physical examination. The plaintiff was diagnosed with Acute Left Maxillary Sinusitis (i.e. a sinus infection). He was prescribed an antibiotic and new blood pressure medicine (because he had stopped taking his old one) and a return appointment was scheduled for the end of March. Noticeably absent from the treatment notes is any mention of the March 11th incident, the excruciating pain he purportedly endured and the dizziness. Indeed, according to the notes, the plaintiff denied dizziness and reported only, "moderate discomfort."
The plaintiff claims he was bedridden over the next few days and could not tolerate the prescribed medication. The plaintiff was taken to Medicor Associates on March 19, 2008 by his sister, Colleen Kubera, and was again seen by PA Wlodarek. According to the plaintiff, he informed PA Wlodarek that he thought he had a stroke. According to the September 22, 2015 deposition testimony of his sister, the plaintiff told PA Wlodarek that his head was "killing" him, and that he had suffered a stroke, no less than three times.
The contemporaneously made medical record is at odds with these claims. According to Physician's Assistant Wlodarek's treatment notes, the plaintiff said that he felt worse and complained of intolerance to the previously prescribed anti-biotic. The treatment notes also document the plaintiff reporting that he had suffered sinus infection symptoms several weeks beforehand and his theory that fibers from a recent rug installation might have contributed to a relapse. Anything relating to stroke or the March 11th incident is absent from the medical record.
The plaintiff was driven to Brooks Memorial Hospital later that night by his niece, Valerie Csont, and was treated by two emergency room nurses and Dr. Burns. According to the plaintiff, he told Dr. Burns that he had suffered a stroke. The plaintiff's niece makes similar claims in her September 23, 2015 deposition testimony, adding that her Uncle's opinion made sense to her because the "stroke signs [like] slurring, disorientation and super-dizziness, were everywhere."
Once again, the contemporaneously made medical record — this time from Brooks Memorial Hospital — contradicts the claims of the plaintiff and his family members. Neither a neurological examination nor a battery of tests revealed any evidence of a stroke or "stroke signs." All testing proved negative, except for an elevated red blood cell count. The plaintiff was discharged on the morning of March 20, 2008 with a preliminary diagnosis of polycythemia (elevated red blood cell count) and was advised to follow up with his primary care physician in one-to-two days.
That follow-up visit occurred on March 21, 2008 when the plaintiff, accompanied by his sister, saw PA Wlodarek for the third time in a week. The plaintiff claims to have witnessed his sister inform the physician's assistant that he was losing his balance; that the right side of his body was weak; and, that he was having trouble speaking.
According to PA Wlodarek's extensive treatment notes, the plaintiff reported thick nasal discharge and acute post-nasal drip as well as body aches, chills, weakness, dizziness and loss of balance. The plaintiff denied a number of other symptoms, including headache, blurred vision, double vision, confusion, hemiparesis (weakness in one side of the body), numbness and tingling. PA Wlodarek noted that the plaintiff was, "Alert and oriented x3" and that his speech was clear and appropriate. Her March 21, 2008 notes also indicate that the plaintiff declined to take a CT (Commuted Tomography) Scan.
Dr. Bartholomew returned to work from a vacation on March 25, 2008 and saw the plaintiff that day. According to Dr. Bartholomew's notes, "Patient presents for a follow up exam. Dan had an episode 2 weeks ago where he moved suddenly and became dizzy. He felt a pain in the back part of his head and had bright white light and he could not see out of the eye and he became very dizzy. He was also slurring his speech He is feeling better today but has right sided weakness, slow word production and some difficulty with word finding." Dr. Bartholomew diagnosed the plaintiff with, "436 CVA" (i.e. the billable medical code for acute, but ill-defined cerebrovascular disease) and noted, "I suspect he had a lacunar CVA" (i.e. a stroke). Dr. Bartholomew's March 25, 2008 treatment notes are the first time where a traumatic incident and/or symptoms indicative of stroke are mentioned in the medical record.
Dr. Bartholomew ordered non-surgical imaging tests, which indicated that the plaintiff's left carotid artery was constricted or blocked. The plaintiff was promptly admitted to the Gates Vascular Institute. On March 26, 2008, Dr. Adam Siddiqui performed a cerebral angiography (a surgical imaging procedure of the brain) and stent deployment (the insertion of a tube to hold a structure, such as an artery, open) within the left carotid vasculature. The plaintiff suffered a subarachnoid hemorrhage or so-called "brain bleed," toward the end of the procedure.
The plaintiff initially commenced a medical malpractice lawsuit against Dr. Bartholomew, Medicor Associates, Brooks Memorial Hospital, Dr. Burns and PA Wlodarek on September 17, 2010. Partial summary judgment was granted in Dr. Bartholomew's favor by Chautauqua County Supreme Court Justice James Dillon on September 25, 2012. Shortly thereafter, Justice Dillon permitted the plaintiff to file an amended complaint, adding Dr. Bishop and Dr. Landis, neither of whom ever treated the plaintiff, to the lawsuit.
Plaintiff advances many liability claims — like negligent supervision by Dr. Bishop and Dr. Landis and negligent vacationing by Dr. Bartholomew — but his principal contention is that the defendants failed to timely diagnose and adequately treat him. More specifically, it is alleged that the defendants deviated from the standard of care in that they failed to record "key neurological symptoms" and that they failed to promptly conduct necessary "stroke work-up protocol and evaluation" as well as necessary tests. It is further alleged that these deviations from the standard of care "directly" caused the plaintiff permanent brain injury, neurological damage and permanent disability (see, February 21, 2017 Attorney Miserndino Responding Affidavit, ¶21-22). When asked at oral argument whether the plaintiff was equating a lack of earlier intervention with causation, his attorney responded, "absolutely."
In support of their summary judgment motion, Doctors Bartholomew, Bishop and Landis, as well as Medicor Associates and Brooks Memorial Hospital, principally rely upon the expert affirmation of Edward A. Stehlik, M.D. Seventy-five paragraphs in length, Dr. Stehlik's affirmation directly addresses the plaintiff's claims against each of these four defendants individually. It also details why he believes the plaintiff was not suffering from a stroke when examined on March 14, 19, 20 and 21, 2008 and why the treatment rendered by each provider was appropriate and within the standard of care. Perhaps most importantly, Dr. Stehlik sets forth why there is no causal connection between the defendants' purported negligence and the plaintiff's injuries. In this regard, Dr. Stehlik alleges that the plaintiff's injuries, "were caused by the bleed which occurred during his subsequent stenting procedure at Gates Vascular Institute, which is a known and accepted risk of the procedure" (Stehlik affirmation, ¶65); that the specialists at Gates Vascular, "did not identify any additional risk to the procedure based on the timing of his presentation to the hospital" (Stehlik affirmation, ¶66); that, "an alleged delay in diagnosis and transfer to Gates Vascular Institute does not increase plaintiff's risk of hemorrhage during stenting" (Stehlik affirmation, ¶67); and, that the, "plaintiff had a spontaneous dissection of his left carotid artery, which was not gradual but acute" (Stehlik affirmation, ¶68). Dr. Stehlik also points out:
"Notably, the patient's NIH stroke scale was a 2 at the time he was transferred to Gates by Dr. Bartholomew on March 25, 2008. After the stent procedure, plaintiff's NIH stoke scale was a 13, confirming that the complication of the procedure is the proximate cause of the patient's neurologic sequellae" (Stehlik affirmation, ¶69).
Physician's Assistant Wlodarek also relies upon Dr. Stehlik's affirmation. While her attorney conceded at oral argument that a factual dispute exists regarding whether she accurately recorded the plaintiff's purported complaints, she nonetheless contends that she is entitled to summary judgment on causation grounds.
Dr. Burns also submits the affidavit of Brian T. Kloss, D.O., which sets forth, in detail, why he believes the plaintiff was not suffering from a stroke when seen by Dr. Burns and why the treatment rendered by Dr. Burns was appropriate and within the standard of care. Dr. Kloss also concludes the Dr. Burns did not cause the plaintiff's injuries.
The plaintiff, in response, chiefly relies upon the affidavit of Finley W. Brown, Jr., M.D. Regarding whether the defendants deviated from the standard of care, the plaintiff's expert alleges that PA Wlodarek, "failed to get a complete and proper history which should have included the presence of neurologic signs and symptoms suggesting impending stroke, failed to do any testing whatsoever (he was hypertensive), and failed to institute a stroke protocol, workup and evaluation" (Brown affidavit, ¶8). Virtually identical allegations are lodged against Dr. Burns and Brook Memorial Hospital (Brown affidavit, ¶13) as well as Dr. Bishop and Dr. Landis (Brown affidavit, ¶15). As to Dr. Bartholomew, "Dr. Bart [sic] was negligent and failed to leave his clients [sic] with proper and adequate medical care and attention while on vacation" (Brown affidavit, ¶17). The plaintiff's expert contends that all of the defendants further deviated from the standard of care by "failing to follow two important maxims (1) to protect against serious and life threatening disease and (2) early diagnosis leads to early treatment and the best chance for cure, avoidance of pain and suffering, and avoidance of early neurologic injury" (Brown affidavit, ¶19-20). The plaintiff's expert then devotes a one-sentence paragraph of his affidavit to causation, alleging:
"Had Daniel J. Kubera been timely referred to the hospital emergency room for neurology and/or neurological consultation and institution of a stroke protocol, he would have been timely worked up, diagnosed, and treated and would not have developed the permanent brain injury and neurologic damage from which he suffers" (Brown affidavit, ¶23).
Summary judgment permits a party to show that there are no material issues of fact to be tried and that judgment may be directed as a matter of law (Brill v. City of New York, 2 NY3d 648, 650-651). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any genuine, material issues of fact. When such a showing has been made, the burden shifts to the party opposing summary judgment to produce evidentiary proof sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v. Prospect Hospital, 68 NY2d 320, 324).
The requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, aka the standard of care and (2) evidence that such departure was a proximate cause of injury or damage. It is well-settled that defendants bear the initial burden of establishing either that there was no departure from the applicable standard of care or that any alleged departure did not proximately cause the plaintiff's injuries. Assuming they do both, the plaintiff, in opposition, must submit a physician's affidavit sufficiently attesting to the defendants' departure from accepted practice and that such a departure was a competent producing cause of the injury. (Bagley v. Rochester General Hospital, 124 AD3d 1272,1273; O'Shea v. Buffalo Medical Group, 64 AD3d 1140). In other words, once a prima facie case as to departure from the standard of care and causation is made, the burden shifts to the plaintiff to lay bare his proof and demonstrate the existence of a triable issue of fact as to both elements (Digiaro v. Agrawai, 41 AD3d 764, 767; Sheridan v. Bieniewicz, 7 AD3d 508, 509).
General allegations that are conclusory and unsupported by competent evidence tending to establish both essential elements of medical malpractice are insufficient to defeat summary judgment (Alvarez v. Prospect Hospital, 68 NY2d 320, 325). Indeed, where the expert's ultimate assertions are speculative or unsupported by any evidentiary foundation, the opinion should be given no probative force and is insufficient to withstand summary judgment. (Diaz v. New York Downtown Hospital, 99 NY2d 542, 544; Moran v. Muscarella, 85 AD3d 1579, 1580-1581).
Both the Stehlik affirmation and the Kloss affidavit meticulously detail why the treatment rendered by each provider was appropriate and within the standard of care. Dr. Stehlik similarly details why there is no causal connection between the defendants' purported negligence and the resultant injuries to the plaintiff. The defendants have therefore met their burden of establishing that there was no deviation or departure from the applicable standard of care and that any alleged departure did not proximately cause the plaintiff's injuries. Because the defendants have made a prima facie showing of entitlement to judgment as a matter of law, the burden shifts to the plaintiff to produce evidentiary proof sufficient to establish the existence of material issues of fact as to both elements of medical malpractice.
In stark contrast to his colleagues, Dr. Brown offers only platitudes and conclusory allegations regarding whether the defendants departed from the standard of care. For example, the plaintiff's expert repeatedly criticizes the defendants for failing to conduct "testing" without noting what tests should have been performed. Similarly, Dr. Brown faults the defendants for failing to implement a "stroke protocol, workup and evaluation" without revealing what any of that entails. It should also be noted that in Dr. Brown's view, the defendants' negligence is, for the most part, interchangeable and indistinguishable.
Regarding causation, Dr. Brown merely offers a single sentence theory that, but for the negligent conduct of all the defendants, the plaintiff, "would not have developed permanent brain injury and neurologic damage." This sweeping allegation is made despite the fact Dr. Brown does not dispute that the plaintiff's brain bleed and subsequent disabilities were a direct result of the March 26, 2008 brain surgery at Gates Vascular Institute. Dr. Brown fails to allege, let alone substantiate, how and/or why the defendants' negligence weakened or affected the plaintiff's brain vasculature, made him more susceptible to a known surgical complication or caused a subarachnoid hemorrhage.
Dr. Brown's affidavit fails to detail what actual tests, procedures or actions should have been undertaken by the defendants (see, Golden v. Pavlov-Shapiro, 138 AD3d 1406); it fails to differentiate between the acts of the various defendants or explain how or why the plaintiff's injuries would have been less severe but for their purported negligence (see, Rebozo v. Wilen, 41 AD3d 457, 459); it fails to provide the requisite nexus between the malpractice allegedly committed and the harm suffered (see, Foster-Sturrup v. Long, 95 AD3d 726, 728); and, it fails to address important elements set forth by Dr. Stehlik regarding causation and, to the brief extent causation is addressed, offers an opinion that is conclusory and speculative (see, Sukhraj v. New York City, 106 AD3d 809). Regarding causation especially, Doctor Brown offers a post hoc ergo propter hoc hypothesis in lieu of evidentiary facts. Consequently, his opinions have no probative force and his affidavit is insufficient to defeat defendants' summary judgment motions.
The defendants' summary judgment motions are granted and the lawsuits filed against them are dismissed.
The foregoing shall constitute the judgment and order of this court. Dated: June 27, 2017 HON. FRANK A. SEDITA, III, J.S.C.