Opinion
13106/02.
Decided March 24, 2006.
Upon the foregoing papers, and upon oral argument, defendants Israel Jacobowitz, M.D. ("Dr. Jacobowitz") and NY Cardiothoracic Surgeons move pursuant to CPLR 3212 for an order granting summary judgment and dismissing the complaint.
This is an action in medical malpractice, in which it alleged that during a surgical procedure performed upon Fay Marchisotti ("decedent") at Maimonides Medical Center ("Maimonides") on July 19, 2001, Adeyemi Williams, a physician's assistant ("P.A."), under the supervision of Dr. Jacobowitz, was negligent and departed from accepted standards of surgical practice in surgically removing ("harvesting") at the direction of Dr. Jacobowitz, the decedent's left radial artery, thereby causing damage to the radial nerve in the decedent's left arm. Plaintiff alleges that Maimonides is responsible for P.A. Williams, its employee, as is William's supervisor and attending surgeon, Dr. Jacobowitz. Plaintiff further alleges that NY Cardiothoracic Surgeons is Dr. Jacobowitz's employer and responsible for his actions.
A motion for summary judgment made by defendants P.A. Williams, Wendy Reynoso, P.A. and Maimonides has also been under consideration by the court. However, prior to the court's issuance of a decision on that motion, this matter was settled as to those defendants and the motion by Williams, Reynoso and Maimonides has been withdrawn.
The Motion for Summary Judgment
Asserting that there are no triable issues of fact and therefore no merit to plaintiff's lawsuit as to them, defendants submit the expert medical affidavit of Dr. Kenneth M. Steinglass, in which the defendants maintain that the following is true:
1. Dr. Steinglass is a thoracic surgeon, and is board certified in both surgery and in thoracic surgery. He has reviewed the pleadings; photographs of plaintiff's forearm; various medical records, including decedent's medical records from Dr. Jacobowitz' office and from Maimonides Medical Center; the death certificate of Fay Marchisotto; and the transcripts of the Examinations Before Trial of plaintiff John Marchisotto, Dr. Jacobowitz, and P.A. Williams;
2. Based upon his review of the pertinent records in this matter, Dr. Steinglass states, within a reasonable degree of medical certainty, that the medical care and treatment rendered to the decedent by Dr. Jacobowitz and NY Cardiothoracic Surgeons, P.C., in connection with a July 19, 2001 coronary artery bypass surgery was at all times appropriate, that there were no departures from good and accepted medical practice, and that none of the treatment provided by Dr. Jacobowitz or NY Cardiothoracic Surgeons, P.C. was a substantial cause of any injury to Ms. Marchisotto;
3. While Dr. Jacobowitz was the thoracic surgeon who performed Ms. Marchisotto's July 19, 2001 coronary artery bypass surgery, the harvesting of plaintiff's left radial artery graft during the course of such procedure was performed by Physician's Assistant Adeyemi Willliams. In connection with coronary artery bypass surgery, it is common practice for a physician's assistant to harvest a radial artery graft, particularly where the thoracic surgeon is simultaneously performing a median sternotomy incision to the plaintiff's chest. Such is within the applicable standard of care, and is not a fact which is ordinarily discussed with the patient prior to surgery;
4. Further, in July 2001, the decedent was a 61 year-old obese diabetic with hypertension and hypercolesterolemia, who demonstrated symptoms of congestive heart failure. A June 14, 2001 cardiac catheterization showed severe stenosis involving the left anterior descending coronary artery as well as the right coronary artery; Ms. Marschisotto further had calcific aortic stenosis with calcification of the ascending aorta. Given her condition, coronary artery bypass surgery was the appropriate treatment, and it would not be expected that a reasonably prudent person in Ms. Marchisotto's position would have chosen to delay or not undergo the surgery if she were told that a physician's assistant would be harvesting the radial artery graft, or that a post-operative infection or scarring could result. It is not the standard of care for a separate surgeon to be retained to perform the artery harvesting, nor would a reasonably prudent person delay surgery in order to demand same;
5. Finally, among the various risks associated with harvesting a radial artery graft is the possibility that delayed healing and nerve injury may result.Plaintiff's Opposition
In opposition to the motion, plaintiff submits the affirmation of Michael Golding, M.D., in which the plaintiff maintains that the following is true:
1. Dr. Golding is a surgeon, board certified in surgery and in thoracic surgery. He has reviewed the motion papers; the affidavit of Thomas Banks, P.A.; the affirmation of Kenneth Steinglass, M.D.; the Maimonides records; the deposition transcripts of Dr. Jacobowitz and of P.A. Willliams, as well as portions of the depositions of Fay Marchisotto and John Marchisotto; Dr. Jacobowitz' office records, including copies of photographs of the plaintiff's left arm; and the office records of Dr. Patel, including EMG records;
This affidavit was submitted in the summary judgment motion by the other defendants, mentioned above in footnote 1.
2. Based upon a review of the above documents, it is Dr. Golding's opinion with a reasonable degree of medical certainty that Dr. Jacobowitz and P.A. Williams were negligent and departed from the accepted standards of surgical practices in the surgical removal of her left radial artery for use in the coronary artery bypass procedure which they performed on July 19, 2001;
3. The plaintiff decedent was a 62 year-old diabetic female who was referred to Dr. Jacobowitz for treatment of coronary artery disease, aortic stenosis and a calcified ascending aorta. She was admitted to Maimonides as a private patient of Dr. Jacobowitz, who opted to perform a two vessel bypass grafting off pump (a left Internal Mammary Artery to Left Anterior Descending Coronary Artery and Left Internal Mammary Artery to the left radial artery bypass to the distal right coronary artery). The left radial artery was harvested by P.A. Willliams, but there was no description of that procedure in the medical records;
4. A blister at the harvest site of the left radial artery was noted without further description. According to the discharge summary this was to be managed by the Visiting Nurse Service. There was no further description of this wound nor was there any mention of pain or other neurological symptoms in the left hand in the Discharge Summary;
5. Dr. Jacobowitz' office records failed to note the status of the left forearm incision but a series of photographs (08/31/01 to 04/02) revealed a problem with the incision. A photograph dated 10/12/01 showed a large necrotic wound that involved more than the distal third of the linear incision that was used for the open radial artery harvest. The last photo, dated April, 2002, confirmed that the incision had finally healed. No other details were noted regarding this surgical incision that became necrotic, resulting in a gaping wound with delayed and prolonged healing;
6. The patient was referred to Dr. Patel, who saw her on or about September 10, 2001, at which time she had complaints of severe left hand pain upon waking up from anesthesia following the July 19, 2001 surgery. The hand was described as "on fire." This severe pain was not relieved by Tylenol with codeine. EMG's were performed on September 25, 2001 that indicated: (1) moderately severe median neuropathy at the wrist, retrograde demyelination of the left median nerve, elbow to wrist; and (2) left radial sensory neuropathy;
7. The damage done to the donor site, the failure of the harvest site to heal as shown by the photographs, as well as a review of the depositions of P.A. Williams indicate, in Dr. Golding's opinion, that P.A. Williams was unable to properly harvest the left radial artery, due to poor technical skills and inadequate training and knowledge. This resulted in damage to the median and radial nerves and necrosis of the harvest site incision. In this expert's opinion, with a reasonable degree of medical certainty, Dr. Jacobowitz was negligent and departed from the accepted standards of surgical practice in allowing an unqualified P.A. to harvest the left radial artery in Mrs. Marchisotto's left forearm;
8. P.A. Williams admitted in his deposition that his training was done by senior physician's assistants and outside corporations, i.e. Guidant. The New York State Department of Education statutes require physician supervision of physician assistants and further state that the attending physicians "remain medically responsible" for the services performed by a physician's assistant. Dr. Jacobowitz, in his deposition (beginning at page 21: line 11) stated:
A: "I really don't know what his experience was or when P.A. Williams started working with us. I — he's not hired by me. He was hired by the hospital and assigned to me on a case."
Then at page 22, line 2:
Q. "When the P.A. harvests the radial artery, are you supervising him directly, or are you doing something else at the time?
A: I'm doing something else at the time" (line 8).
9. Plaintiff's expert opines that the findings of moderately severe median neuropathy at the wrist, retrograde demyelination of the left median nerve, elbow to wrist and left radial sensory neuropathy found in this patient are consistent with injury to the nerves encountered during the left radial artery harvest caused by the lack of proper surgical technique by P.A. Williams, and his supervising and responsible attending surgeon, Dr. Jacobowitz, and that the injury demonstrated by this patient was not a risk of the procedure and would not happen in the absence of improper technique. In Dr. Golding's opinion, the nerve injury represented a permanent injury which was substantially caused by the departures from accepted practice.Analysis
A motion for summary judgment will be granted if, upon all the papers and proof submitted, the cause of action or defense is established sufficiently to warrant the court in directing judgment in favor of any party as a matter of law ( see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967). Upon a showing by the movant of entitlement to judgment as a matter of law, the opposing party must produce evidentiary proof in admissible form sufficient to require a trial of material issues of fact ( see Zuckerman v. City of New York, 49 NY2d 557). When the court is considering competing arguments in a summary judgment motion, "the opponent is entitled to the benefit of every favorable inference that may be drawn from the pleadings, affidavits, and competing contentions of the parties" ( Marshall v. Vilar, 303 AD2d 466, 466).
"To establish a prima facie case of liability in a medical malpractice action, the plaintiff must prove that the defendant physician deviated or departed from good and accepted standards of medical practice, and that the departure was the proximate cause of injury or damage" ( Roseingrave v. Massapequa General Hospital, 298 AD2d 377, 379). In order to sustain this burden, the plaintiff "must present expert opinion testimony that the defendant's conduct constituted a deviation from the requisite standard of care" ( Pace v. Jakus, 291 AD2d 436, 436-437; see also Perrone v. Grover, 272 AD2d 312). In Shields v. Baktidy, 11 AD3d 671, 672 the Court stated:
Summary judgment may not be awarded in a medical malpractice action where the parties adduce conflicting opinions of medical experts ( see Barbuto v. Winthrop Univ. Hosp., 305 AD2d 623; Fotinas v. Westchester County Med. Ctr., 300 AD2d 437). When experts offer conflicting opinions, a credibility question is presented requiring a jury's resolution ( see Barbuto v. Winthrop Univ. Hosp., supra; Halkias v. Otolaryngology-Facial Plastic Surgery Assocs., 282 AD2d 650).
The court finds that here, upon the properly supported papers of both sides, issues of fact exist as to whether the moving defendants deviated from accepted standards of medical practice which preclude the granting of summary judgment. Specifically, issues of fact have been raised with respect to whether the injury to the decedent was caused by the lack of proper surgical technique by P.A. Williams, and his supervising and responsible attending surgeon, Dr. Jacobowitz, M.D.
Dr. Jacobowitz' testimony indicates that the P.A.'s were instructed in the method of harvesting either by himself or one of his partners or by a more experienced P.A. who similarly had been trained by Dr. Jacobowitz or one of his partners (Jacobowitz EBT, pp 49-50). In fact, Dr. Jacobowitz testified that "As a general rule, my — my group tends to be the more aggressive group with regard to radial arteries in young people, so I would generally assume that one of the members of my group was involved in the training" (Jacobowitz EBT, p. 50, lines 17-21). Dr. Jacobowitz testified with respect to P.A. Williams that "I know that I spent some time with him in vein handling, cause I remember, you know, being at the operating room table and discussing how I wanted things done, some of which was different than his previous — his previous training." (Jacobowitz EBT, p. 27). This testimony stands in contrast to the defendants' argument that P.A. Williams harvested the radial artery without Dr. Jacobowitz' instruction or assistance.
Dr. Jacobowitz also testified that it was he who determined how to proceed during this surgery, and that he made decisions during the operation, such as the decisions to harvest the radial artery rather than a different vessel (Jacobowitz EBT, p. 16-18), to keep the heart beating during surgery and to not touch the aorta at all due to the patient's aortic stenosis (EBT, p. 24-25). He also chose to permit P.A. Williams to harvest the radial artery during the coronary artery bypass surgery, rather than to have the vessel harvested first, when Dr. Jacobowitz could have monitored P.A. William's procedure. This was done to minimize the patient's time under anesthesia.
Dr. Jacobowitz is deemed to have supervised P.A. Williams during this procedure, and would be even had he not been present in the operating room during the harvesting. The rules applicable to the supervision and scope of duties pertaining to physician's assistants are delineated in 10 NYCRR § 94.2, which, insofar as relevant to this case, provides:
(a) A registered physician's assistant . . . may perform medical services but only when under the supervision of a physician. Such supervision shall be continuous but shall not necessarily require the physical presence of the supervising physician at the time and place where the services are performed. (b) Medical acts, duties and responsibilities performed by a registered physician's assistant must: (1) be assigned to him by the supervising physician; (2) be within the scope of practice of the supervising physician; and (3) be appropriate to the education, training and experience of the registered physician's assistant . . .
(f) A physician supervising or employing a registered physician's assistant . . . shall remain medically responsible for the medical services performed by the registered physician's assistant . . . whom such physician supervises or employs. In Polanco v. Commissioner of the Dep't of Social Servs., ( 212 AD2d 443 [1995]), the court, citing 10 NYCRR 94.2[a], [f]), held that a physician was responsible for the services provided by his physician's assistant, in the context of a case involving the requirement of Medicaid providers to maintain adequate records. The court held that the doctor-petitioner's physician's assistant "wrote the orders for the subject prescriptions and laboratory tests, all billing was processed under petitioner's name and Medicaid Provider number, and he reviewed the medical charts upon which the orders were based. Inasmuch as petitioner chose to employ an assistant, he was responsible for the assistant's work" (id, at 443).
While defendant claims that the language in 10 NYCRR 94.2[f] that a "physician shall remain medically responsible for the medical services performed by the physician's assistant" (emphasis added) does not equate with a legal responsibility, such that the physician would not be responsible for the negligence or medical malpractice of the physician's assistant, the court disagrees. The term "medically responsible" should be construed to include acts of negligence and medical malpractice allegedly committed by a physician's assistant supervised or employed by the physician.
In Cook v. Reisner, ( 295 AD2d 466), the Appellate Division, Second Department held that a hospital was protected from liability if its staff followed the orders of a patient's physician, who controlled, directed and supervised that staff. The Court cited a decision by the Appellate Division in Filippone v. St. Vincent's Hosp. Med. Ctr., ( 253 AD2d 616), where a private attending surgeon was held liable for plaintiff's injuries even though it may have been the surgical assistant who was dissecting tissue when the injury occurred. Since in each case the Court held that the physician was liable for the acts of a resident, by parity of reasoning the physician should be held liable for the acts of the physician's assistant, who is not a licensed physician.
The court finds the cases cited by defendants in their reply papers unpersuasive. Striano v. Deepdale Gen. Hosp., 54 AD2d 730 and Banks v. Barkoukis, 231 AD2d 598 involve the question of the liability of a surgeon for the negligence of a nurse not in the doctor's employ. Nurses are not covered by 10 NYCRR 94.2, are treated as independent practitioners, and have their own responsibilities which are to be performed without supervision (see generally, Bleiler v. Bodner, 65 NY2d 65, 71).
In the other case cited, Baidach v. Togut, 8 AD2d 838, the court determined that the attending surgeon had the right to rely upon the competency of the hospital, particularly that of a resident physician, to insert a needle properly and to check frequently the intravenous flow which allegedly caused injury to the plaintiff. The insertion of an IV and its monitoring thereafter is more in the nature of a ministerial procedure which can also be performed by nurses or technicians. This stands in contrast to the sophisticated vessel harvesting which was performed in this case, by a physician's assistant under both the supervision required by the NY Codes, Rules and Regulations, and the actual direction of Dr. Jacobowitz, the cardiothoracic surgeon.
One matter requires discussion. Defendants have established a prima facie case of entitlement to summary judgment on the issue of informed consent, based upon the affirmation of their medical expert, and plaintiff has failed to address this in his opposition. Accordingly, defendants are entitled to summary judgment on this issue. Conclusion
The motion by the defendants for summary judgment is granted solely on the issue of informed consent, and is otherwise denied.
This constitutes the decision and order of the court.