Opinion
No. 100485/06.
2012-04-5
Kathleen NUKHO, As Administratrix of the Estate of Samira Nukho, Deceased, and Kathleen Nukho, Individually, Plaintiffs v. Jaimee O'CONNOR, M.D., Staten Island University Hospital, Maria Ho, M.D. “John” Arabiz, M.D., Michael R. Castellano, M.D., Brahim Ardolic, M.D., Alexander Beylinson, M.D., Barry Hahn, M.D., Leila Thanasoulis, M.D., Thomas Panetta, M.D., and United Surgical Associates, P.C., Defendants.
The law firm of Kramer Dillof Livingston & Moore, Esqs., for Plaintiffs. The law firm of Shaub Ahmuty Citrin & Spratt, LLP, for Defendants Jaimee O'Connor, MD, Staten Island University Hospital, Maria Ho, MD, Brahim Ardolic, MD, Alexander Beylinson, MD, Barry Hahn, MD and Leila Thanasoulis, MD.
The law firm of Kramer Dillof Livingston & Moore, Esqs., for Plaintiffs. The law firm of Shaub Ahmuty Citrin & Spratt, LLP, for Defendants Jaimee O'Connor, MD, Staten Island University Hospital, Maria Ho, MD, Brahim Ardolic, MD, Alexander Beylinson, MD, Barry Hahn, MD and Leila Thanasoulis, MD.
The law firm of Garson DeCorato & Cohen, LLP, for Defendants Michael Castellano, Sr., MD and Staten Island Pulmonary Associates, P.C.
The law firm of McAloon & Friedman, P.C., for Defendant Thomas Panetta, MD.
The law firm of Amabile & Erman, P.C., for Defendant United Surgical Associates.
JOSEPH J. MALTESE, J.
The following items were considered in the review of the following motion for summary judgment.
Papers Numbered
+--------------------------------------------+ ¦Notice of Motion and Affidavits Annexed¦1 ¦ +---------------------------------------+----¦ ¦Notice of Motion and Affidavits Annexed¦2 ¦ +---------------------------------------+----¦ ¦Answering Affidavits ¦3 ¦ +---------------------------------------+----¦ ¦Replying Affidavits ¦4, 5¦ +---------------------------------------+----¦ ¦ExhibitsAttached to Papers ¦ ¦ +--------------------------------------------+
Upon the foregoing cited papers, the Decision and Order on this Motion is as follows:
This medical malpractice and wrongful death action was brought by Kathleen Nukho, the mother and administratrix of the estate of her daughter, Samira Nukho. The defendants, Thomas Panetta, M.D., (“Dr .Panetta”) and United Surgical Associations, P.C. (collectively “the defendants”) move for summary judgment dismissing the plaintiffs' complaint. Those motions are denied.
Samira Nukho, aged 21 was seen in the Staten Island University Hospital (“SIUH”) emergency room (“ER”) on April 30, 2005 and on May 9, 2005. While in the SIUH ER on April 30, she complained of acute upper back pain for a period of 10 days without any recent injury. Upon reflection, Samira thought that it was possible that the back pain could have begun when she had a tattoo done. The treating physician found acute myofascial strain and prescribed flexeril. The hospital and the treating physicians did not order blood work or diagnostic testing during the treatment on April 30, 2005.
On May 9, 2005 the Samira returned to the SIUH ER complaining of a migraine headache, facial pain, and two half-dollar sized lumps on her head among other things. During this examination a third lump developed behind her ear. The examining physician did not order blood work or diagnostic studies, but instead discharged her with a referral to a dermatologist.
The next day, Samira was found unconscious on her bathroom floor. Her family called 911 at approximately 9:21 a.m. and by 9:26 a.m. an ambulance was at the decedent's home. Upon arriving at SIUH Samira Nukho was evaluated and found to be in mild respiratory distress, pale and cool/diaphoretic. The evaluating physician ordered a CBC, urinalysis and other testing along with a CT scan of the decedent's head. While in the hospital, Samira suffered a tonic-clonic seizure lasting two minutes.
By 2:40 p.m. Samira Nukho was noted to be in severe distress with a decreased level of consciousness and in moderate respiratory distress with rapid heart rate with cool, pale and diaphoretic skin. Dr. Panetta states his first contact with her was at approximately 2:51 p.m. He testified at his deposition that at the time of his observation the decedent was in extremis and he opined that she was bleeding into her belly, based on his palpation of the abdomen which revealed it to be tense and distended.
The defendant, Dr. Panetta states that Samira's mother signed a consent form that had the word “transfusion” written in and then crossed out followed by the words “exploratory laparotomy, possible splenectomy” written in. Kathleen Nukho, Samira's mother claims she did not learn of the type of surgery to be performed or that there was a problem with her daughter's spleen until after the operation. The surgery commenced at approximately 3:39 p.m.
Dr. Panetta testified that the surgery was an extremely bloody procedure. He testified that the her abdomen was filled with approximately two liters of blood, and that upon the completion of the incision a bright red fluid poured out of the abdomen. Dr. Panetta also concedes that in performing this operation he inadvertently nicked Samira's bowel. The bowel nick was repaired by another doctor by removing 4cm of the decedent's small bowel and anastomosis. Plaintiff's expert states the autopsy results show that there was bacteria in the decedent's bowels. There is no evidence that at the time of the cut bowel and subsequent repair, that prophylactic antibiotics were administered to Samira, nor does the record show that any internal antibacterial solution was used to wash the bacteria site.
Post-operatively a specimen from the decedent's ruptured spleen was examined and found to be positive for Burkitt's Lymphoma/Leukemia. After the surgery the decedent was able to respond to her family. However, in the days following the surgery her condition worsened, with a decrease in oxygnation, urine output and a diagnoses of abdominal compartment syndrome. In addition there is a note in the medical record of ongoing blood loss and sepsis. By May 17, 2005 Samira's condition was consistent with cerebral death. On May 23, 2005 Samira was declared brain dead and on May 24, 2005 she died. Dr. Panetta did not reveal that he nicked Samira's bowel to her family until after she died when an autopsy was performed.
Discussion
Dr. Panetta and United Surgical Associates, P.C. now move for summary judgment dismissing the plaintiffs' complaint.
A motion for summary judgment must be denied if there are “facts sufficient to require a trial of any issue of fact (CPLR § 3212[b] ). Granting summary judgment is only appropriate where a thorough examination of the merits clearly demonstrates the absence of any triable issues of fact. “Moreover, the parties competing contentions must be viewed in a light most favorable to the party opposing the motion”.
Summary judgment should not be granted where there is any doubt as to the existence of a triable issue or where the existence of an issue is arguable.
Marine Midland Bank, N.A., v. Dino, et al., 168 A.D.2d 610 [2d Dept 1990].
As is relevant, summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law.
American Home Assurance Co., v. Amerford International Corp., 200 A.D.2d 472 [1st Dept 1994].
On a motion for summary judgment, the function of the court is issue finding, and not issue determination.
Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978];Herrin v. Airborne Freight Corp., 301 A.D.2d 500 [2d Dept 2003].
In making such an inquiry, the proof must be scrutinized carefully in the light most favorable to the party opposing the motion.
Weiner v. Ga–Ro Die Cutting, 104 A.D.2d 331 [2d Dept 1984]. Aff'd 65 N.Y.2d 732 [1985].
Glennon v. Mayo, 148 A.D.2d 580 [2d Dept 1989].
“On a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby ... In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury ... General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat summary judgment ...”
Rebozo v. Wilen, 41 AD3d 457, [2d Dept 2007].
In support of the motions for summary judgment the defendants rely on the expert affirmation of Dr. Steven Friedman, who is board certified in vascular surgery. In his affirmation Dr. Friedman maintains that the exploratory laparotomy was appropriate and timely performed for a patient in decedent's distress. In addition, given the physical state at the time of the operation, Dr. Friedmen believes that no reasonable person, having been told of the risks, benefits and alternatives would have refused this treatment. Furthermore, Dr. Friedman states that splenectomy is a bloody procedure and that the nick to the decedent's bowel is an accepted risk of the procedure. He further maintains that intra-operative repair to the bowel was appropriate in this case. On the issue of the decedent's post-operative bleeding Dr. Friedman concludes that it was “normal and to be expected” after the surgery. Dr. Friedman maintains that the bleeding did not require an additional surgeon and that the post-operative bleeding did not contribute to the decedent's death. He similarly finds that the decedent's diagnosis of “abdominal compartment syndrome” is a recognized complication associated with a splenectomy, and that sepsis is an attendant circumstance of that diagnosis. Consequently, Dr. Friedman believes that Dr. Panetta's treatment of the decedent during the operation and post-operatively did not cause the decedent's injuries or death.
In opposition, the plaintiff submits the redacted affirmation of a board-certified surgeon. Plaintiffs' expert states that Dr. Panetta departed from good and accepted medical and surgical practices on multiple occasions that contributed to the decedent's ongoing blood loss and sepsis. In particular, plaintiff's expert believes that the blood loss described in the record was beyond acceptable levels and that the ongoing blood loss from the operative site caused the problems that developed during the post-operative period. The plaintiff's expert states, “[t]he continued heavy, active bleeding from the surgical wounds caused intravascular volume depletion and reduced cardiac output, which thereby led to decreased red blood cells and a correlated reduction in oxygen delivered to the entire body, including the brain.”
In addition, the plaintiffs' expert opines that the 300cc of brown fluid found in the peritoneal cavity during the decedent's autopsy is consistent with an infection originating from the bowel. The plaintiff's expert contends that Dr. Panetta's failure to washout the peritoneal cavity with antibacterial solution, along with his failure to administer appropriate antibiotics constitutes a departure from good and accepted medical and surgical practice.
Consequently, an issue of fact exists as to the cause of the decedent's additional injuries and subsequent death. Therefore, the motions for summary judgment made by Dr. Panetta and his professional corporation, United Surgical Associates, P.C. must be denied.
Accordingly, it is hereby:
ORDERED, that the summary judgment motions made by Thomas Panetta, M.D. and United Surgical Associates, P.C. are denied; and it is further
ORDERED, that the parties shall appear in DCM Part 3, 130 Stuyvesant Place, 3rd Floor, on Wednesday, May 9, 2012 at 9:30 a.m. for a Pre–Trial Conference.