Opinion
No. 20937/09.
2012-05-18
Randy RAMNARINE, as Executor of the Estate of Verderly Knights, deceased, Plaintiff, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Maria Tolete, M.D., The City of New York and The New York City Fire Department, Defendants.
Gersowitz Libo & Korek, P.C., New York, for plaintiff. Michael A. Cordozo, Esq., Corporation Counsel, New York, for defendant, The City of New York.
Gersowitz Libo & Korek, P.C., New York, for plaintiff. Michael A. Cordozo, Esq., Corporation Counsel, New York, for defendant, The City of New York.
Salvatore J. Russo, Esq., New York, for defendant, New York City Health and Hospitals Corporation and Maria Tolete, M.D.
MARSHA L. STEINHARDT, J.
Defendants THE CITY OF NEW YORK and THE CITY OF NEW YORK sued herein as THE NEW YORK CITY FIRE DEPARTMENT (“the City”) moves pursuant to CPLR § 3211 for an order dismissing plaintiff's complaint in its entirety, and/or for an order granting summary judgment in its favor pursuant to CPLR § 3212. Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (“HHC”) moves for an Order pursuant to CPLR 3212 granting it summary judgment. Plaintiff opposes both motions.
NOW, upon the foregoing and oral argument on March 29, 2012 and due deliberation had thereon, the motion of Defendants THE CITY OF NEW YORK is DENIED; the motion of Defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION is DENIED.
This is an action sounding in negligence against the City defendants and sounding in medical malpractice against HHC for pain and suffering and the wrongful death of 17 year old Verdery Knights on November 12, 2008. Plaintiff claims in her Bill of Particulars that the City was negligent in failing to contact EMS telemetry unit, failing to contact the guardian of the decedent, allowing a minor to refuse medical attention, failing to follow EMS protocol regarding refusal of medical attention, failing to properly evaluate and treat decedent's shortness of breath, chest pain and lower extremity and failing to transport the decedent in a timely fashion. Although, plaintiff additionally made a claim against the City for the acts of an EMS crew who responded to a second call at or about 7:14 p.m., plaintiff withdraws all claims as to this second call. As against HHC, plaintiff claims, inter alia, that on November 10, 2008 the hospital defendants failed to diagnose and treat the decedent's lower extremity phlebothrombosis with pulmonary thromboembolism, misdiagnosed the decedent with a panic anxiety attack and/or near syncope, failed to inquire about and/or appreciate that decedent was allegedly on birth control and failed to perform diagnostic tests.
On November 10, 2008 Ms. Knights, accompanied by her mother, came to the pediatric emergency room at Woodhull Hospital. The hospital record notes that Ms. Knights stated:
I was walking to the train station and felt pain to my chest-my heart starting beating fast and I felt like I was going to pass out, states pt Pt states that she had this problem once before and was told it was anxiety. Pt also states that she has a torn muscle in her left calf and took a muscle relaxant she got in Trinidad called “Oilfen.”
Ms. Knights was examined by the Triage nurse, emergency room nurse and defendant Dr. Tolete. A chest x-ray and an electrocardiogram resulted in normal studies. Dr. Tolete examined and palpated her lower extremities eliciting no tenderness or pain. Dr. Tolete's impression was that Ms. Knights experienced near syncope and discharged her with instructions to follow up in the cardiology clinic in one week and with her own physician in one or two days.
On November 12, 2008, Ms. Knights and a friend, Billy Saffold, walked from her home to the train. As they went up the steps of the elevated platform, Ms. Knights sat down to catch her breath and then passed out. At 5:45 p.m., Mr. Saffold called 911 stating that Ms. Knights had “passed out.” He testified that Ms. Knights was out for about two minutes. When the firefighters (trained as certified first responders) arrived at 5:48, she had woken up and told them that she had suffered from an anxiety attack. Ten minutes later, two EMTs arrived in an ambulance. The firefighters assisted Ms. Knights down the stairs and assisted her into the back of the ambulance. Ms. Knights told the EMTs that Mr. Saffold was her cousin so that he would be able to accompany her inside the ambulance. Mr. Saffold testified that Ms. Knights told them that she had passed out and that she had an anxiety attack and she was feeling fine and wanted to go home. The EMTs took two sets of vital signs, the second set taken 13 minutes later; both sets of vital signs were normal.
Mr. Melvin Clarke, one of the EMTs who responded to this call testified that based upon his assessment of Ms. Knights' vitals, she was stable. Mr. Clarke testified that Ms. Knights wanted to go home but that he and the other EMT urged and encouraged her to go to the hospital “quite a few times.” Indeed, he stated that they tried to get her to allow them to transport her “at least fifteen plus times” and asked her to “let's go get checked out.” (Clarke EBT page 50–51). Mr. Clarke testified that Ms. Knights and Mr. Saffold were on their way to a concert when the incident happened and that Ms. Knights did not want to go to the hospital, instead she wanted to go on to the concert. (Clarke EBT page 50).
Mr. Saffold testified that the EMTs evaluated Ms. Knights, listened to her heart and lungs, took her blood pressure and gave her oxygen. Mr. Saffold stated the EMTs asked her if she wanted to go to the hospital and that she responded “no, she felt fine, she wanted to go home now.” (Saffold EBT page 28). Since Ms. Knights was not old enough to sign herself out, they asked Mr. Scaffold his age and told him that he could sign her out. (Saffold EBT page 27). Mr. Saffold testified that the EMTs did not ask any information about her parents, where they were or how to reach them. (Saffold EBT page 74). Mr. Saffold stated that the EMTs told her to go home, that she should not go to the concert “because she wasn't feeling well, like that or something, just to rest.” (Saffold EBT page 31).
Mr. Clarke was asked whether Mr. Saffold encouraged Ms. Knights to go to the hospital. He replied, “(n)ot after we checked her out .” He stated that Mr. Scaffold initiated the 911 call and was initially “a little concerned for her.” However, after bringing her in the back of the ambulance Mr. Saffold “had no gripes about her not going” to the hospital. (Clarke EBT page 54). Mr. Clarke allowed Mr. Saffold sign the form.
Following these events and after a stop at a Dunkin Donuts, Ms. Knights passed out in front of her building and became unresponsive. She was then transported by paramedics to Wyckoff Hospital at 7:14 p.m., arriving at 7:18. The Wyckoff Hospital record notes that Ms. Knights was “dead on arrival with a flat line.”
An autopsy performed by the Office of the Chief Medical Examiner determined the cause of death to be lower extremity phlebothrombosis with pulmonary thromboembolism of undetermined etiology. It is undisputed that Ms. Knights had a small clot that dislodged from her leg causing her initial syncope or shortness of breath. A second clot caused her deterioration and death.
In its motion, the City correctly contends that in order for liability to ensue, plaintiff is required to establish that there was a special relationship with the City. It argues that no special relationship was established in this case. The City further contends, assuming, arguendo, that plaintiff can establish the necessary elements of a special relationship, Ms. Knights' death was not proximately caused by the acts or omissions of the City defendants.
“[A] municipality is immune from negligence claims arising out of the performance of its governmental functions unless the injured person establishes a special relationship with the municipality which would create a special duty of protection with respect to that individual” Gotlin v. City of New York, 90 A.D.3d 605, 607, 936 N.Y.S.2d 208 (2d Dept.2011); Joline v. City of New York, 32 A.D.3d 492, 494, 820 N.Y.S.2d 635 (2d Dept.2006); See, Kircher v. City of Jamestown, 74 N.Y.2d 251, 255–256, 544 N.Y.S.2d 995, 543 N.E.2d 443 (1989); Cuffy v. City of New York, 69 N.Y.2d 255, 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 (1987). The elements required to prove the existence of a special relationship are “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality's agents that inaction could lead to harm; (3) some form of direct contact between the municipality's agents and the injured party; and (4) that party's justifiable reliance on the municipality's affirmative undertaking.” Cuffy v. City of New York, supra at 260, 513 N.Y.S.2d 372, 505 N.E.2d 937 (citations omitted); Valdez v. City of New York, 18 N.Y.3d 69, 80, 936 N.Y.S.2d 587, 960 N.E.2d 356 (2011).
The City argues that plaintiff can establish neither the first nor fourth Cuffy element. The first element requires an “assurance” or assumption of a duty to act on behalf of the individual. The Court of Appeals in Dinardo v. City of New York, 13 N.Y.3d 872, 893 N.Y.S.2d 818, 921 N.E.2d 585 (2009), stated that “(t)he assurance by the municipal defendant must be definite enough to generate justifiable reliance by the plaintiff.” id. at 874, 893 N.Y.S.2d 818, 921 N.E.2d 585. The Court reiterated the long standing principle underlying cases premised on a special relationship between municipality and plaintiff that
the injured party's reliance is as critical ... as is the municipality's voluntary affirmative undertaking of a duty to act.... Indeed, at the heart of most of these special duty' cases is the unfairness that the courts have perceived in precluding recovery when a municipality's voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced [her] either to relax [her] own vigilance or to forego other available avenues of protection. (internal citations omitted). Supra at 874.
Here, there can be no dispute that the City assumed an affirmative duty to act on behalf of Ms. Knights arising from the conduct of the EMTs and their interactions with Ms. Knights and Mr. Saffold. The EMTs affirmatively took action by bringing Ms. Knights into the ambulance, examining her and evaluating her physical condition. The testimony of EMT Clarke confirms that they spent at least 13 minutes evaluating Ms. Knights, including taking her vital signs twice. A conversation took place which included ascertaining where Ms. Knights was going and recommendations that, in the event she would not be transported to the hospital, she should go home. Based upon their examination and upon conversations between them, the EMTs granted Ms. Knights and Mr. Saffold the option to refuse transport to the hospital. Clearly, the acts of the EMTs went beyond assurances and promises; in this case, the EMTs affirmatively acted and assumed a duty as to Ms. Knights. A “special relationship” can arise from a duty voluntarily undertaken by a municipality to an injured person. See, McLean v. City of New York, 12 N.Y.3d 194, 878 N.Y.S.2d 238, 905 N.E.2d 1167 (2009).
Similarly, there was a justifiable reliance by Ms. Knight and Mr. Saffold that, based upon the EMTs evaluation, she was well enough to decide to be transported to the hospital or not. The deposition testimony of the City's own witness, Mr. Clarke, sets forth evidence showing that it was reasonable for both Mr. Saffold and Ms. Knights to rely on the evaluation of the basic life support team and, based on the assessment, believe that she was well enough not require an examination at the hospital. Indeed, the EMTs recommended that Ms. Knights not continue with her plans to go to a concert but rather suggested that she should go home. The EMTs affirmatively put an option before Ms. Knight and Mr. Saffold permitting them to set their own course of action. Mr. Clarke's deposition testimony confirms this reliance as he stated that, although Mr. Saffold was originally concerned for Ms. Knights, after she was taken into the ambulance he then “had no gripes about her not going” to the hospital. Given these circumstances, reliance by the couple on the expertise of the EMTs was clear and justified.
It should be noted that although the facts as presented by the City sufficiently support a finding that a special duty/ special relationship existed between the parties, the fact that Ms. Knights was a minor must not be minimized. Ms. Knights had no capacity to sign a refusal to transport and Mr. Saffold, although 19 years old, had barely reached majority. In light of their youth, it was not unreasonable for them to rely on the conduct of the EMTs and understand that theirs was the option to refuse transport. Here, the City assumed an affirmative duty to act which, as a matter of law, constituted an action that lulled these young people into a false sense of security and generated justifiable reliance giving rise to a special relationship.
The City also moves for summary judgment on the basis that Ms. Knights' death was not proximately caused by the acts or omissions of the City through their employees, the EMTs. It argues that Ms. Knights would have died even had she been transported to a hospital within minutes of arrival of the first EMS response. In support of its motion, the City submits an affirmation from Thomas Kwiatkowski, M.D., a physician board certified in Emergency Medicine and Medical Director for EMS Inter-facility and 911 Ambulance Services. Dr. Kwiatkowski states that the accepted treatment for an acute PE is systemic anticoagulation with intravenous heparin. The expert opines that even if Ms. Knights had been taken to the hospital by the ambulance personnel (whose actions form the subject of this motion), she would have died nonetheless. Furthermore, he opines that even if hospital staff had assessed her, diagnosed a pulmonary thromboembolism and placed her on anticoagulation therapy immediately, she still would have died. He states that coagulation therapy does not start to take effect until several hours after administration commences and that no other possible intervention therapy could have saved Ms. Knights as of 6:00 p.m. on November 12, 2008.
Plaintiff submits an affirmation from a physician board certified in Emergency Room medicine. The expert opines that the failure of the EMS personnel to transport Ms. Knights to the hospital on November 12, 2008 at or about 6:00 p.m. was a substantial factor in causing her death. The expert states that had Ms. Knights been admitted to a hospital at the time the PE became symptomatic and went into respiratory distress or failure, she would have received immediate mechanical ventilation support, while thrombolytics took effect. Mechanical ventilation in a hospital setting would have supported the patient's life while treatment was being initiated even with a massive PE. The expert states that the administration of heparin and tPA responds almost immediately. Additionally, he opines that based on the presentation of Ms. Knights signs and symptoms, a diagnosis of pulmonary embolism would have been suspected on admission and anticoagulation therapy would have been administered prior to the decedent going into systemic or cardiogenic shock. The expert specifically disagrees with the opinion of the City expert stating that the body responds to the administration of heparin almost immediately and does not require “several hours to begin to be effective.” (See Aff. Kwiatkowski, M.D.).
A movant in a summary judgment must make a “prima facie showing of his or her entitlement to judgment as a matter of law, tendering sufficient [non-hearsay] evidence to eliminate any material issues of fac.t.” Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 (1985). After the defendant made a prima facie showing of entitlement to judgment as a matter of law on the issue of proximate cause, the burden shifts to the plaintiff “to show by sufficient evidentiary proof the existence of a triable factual issue.” Holbrook v. United Hosp. Med. Ctr., 248 A.D.2d 358, 359, 669 N.Y.S.2d 631 (2d Dept.1998); see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986); Behar v. Coren, 21 A.D.3d 1045, 1046, 803 N.Y.S.2d 629 (2d Dept.2005). To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial factor in producing the injury. See, Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 434 N.Y.S.2d 166, 414 N.E.2d 666 (1980).
Expert testimony is necessary to prove a deviation from accepted standards of medical care and to establish proximate cause unless the matter is one which is within the experience and observation of the ordinary juror. See, Koehler v. Schwartz, 48 N.Y.2d 807, 424 N.Y.S.2d 119, 399 N.E.2d 1140 (1979); Lyons v. McCauley, 252 A.D.2d 516, 675 N.Y.S.2d 375 (2d Dept.1998). A physician's affidavit in opposition to a summary judgment motion must attest to the departure from accepted practice and must contain an opinion that the challenged acts or omissions were a competent producing cause of the injury. See, Swezey v. Montague Rehab & Pain Mgt., P.C., 59 A.D.3d 431, 433, 872 N.Y.S.2d 199 (2d Dept.2009); Vera v. Soohoo, 41 A.D.3d 586, 587, 838 N.Y.S.2d 154 (2d Dept.2007).
The issue herein is whether the failure to transport Ms. Knights to the hospital at approximately 6:00 p.m. on November 12, 2008 proximately caused her death. While defendants made a prima facie showing of entitlement to summary judgement on the question of proximate cause, plaintiff's submissions raise an issue of fact for the jury precluding it. Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Here, the expert affidavits do not resolve whether the acts or omissions of the EMT's in not transporting Ms. Knights to the hospital proximately caused her death, but instead raise material issues of fact. Such credibility issues can only be resolved by a jury. See generally, Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 (2d Dept.2005)[internal citations omitted].
Defendant New York City Health and Hospitals Corporation moves for summary judgment claiming that the treatment rendered to Ms. Knights on November 10, 2008 comported with the standard of care. Plaintiff claims that Dr. Tolete and the pediatric emergency room staff at Woodhull Medical and Mental Health Center (collectively “the Woodhull defendants”) negligently examined and/or treated the decedent, proximately causing her to suffer a pulmonary embolism resulting in her death.
The Woodhull defendants submit an affirmation from Joan Bergstein, M.D., a physician Board certified in Pediatrics Emergency Medicine. Dr. Bergstein opines that the care and evaluation rendered to Ms. Knights on November 10, 2008 was appropriate and complied with the applicable pediatric emergency standards of care. The expert states that Ms. Knights' death was not caused by or the result of a departure from applicable standards by Dr. Tolete and/or the Woodhull pediatric emergency room staff. She opines that Dr. Tolete came to a reasonable clinical impression of near syncope, and that her decision to discharge the patient and her instruction as to follow up care was appropriate. Dr. Bergstein opines that based on the patient's complaints, history and physical examination, further testing such as taking a D-dimer, ischemia-modified albumin studies, a CT scan with PE protocol, a multidetector computed tomographic angiography, pulmonary angiography, V/Q scanning, duplex ultrasound, echocardiography or cardic ultrasonography was not warranted.
Plaintiff's expert, a physician board certified in Emergency Medicine, opines that Dr. Tolete departed from good and accepted medical practice by attempting to rule out the presence of pulmonary embolism based upon a chest x-ray and a physical examination. The expert states that based upon the patient's symptoms of nonspecific chest complaints, rapid heartbeat and near syncope, and the presence of an underlying cardiac event having ruled out, good and accepted medical practice required that Dr. Tolete rule out the next most life threatening condition which was a pulmonary embolism. The expert states that good and accepted medical practice required Dr. Tolete to order a CT scan with PE protocol, VQ scan or a cardiac MRI which would more likely than not have revealed the presence of a pulmonary embolism. The expert further states that the defendant departed from good and accepted medical practice in failing to order D–Dimer testing, which is a reliable, non-invasive, test for excluding pulmonary embolism especially in a younger patient population. The expert opines that the failure to order routine blood tests, arterial blood gases, serum troponin levels, venograpphy and/or coagulation studies also constituted a departure from the standard of care.
To establish liability in a medical malpractice action, a plaintiff on a summary judgment motion must prove a departure from the accepted standard of medical care and that such departure was a proximate cause of the plaintiff's injuries. McKenzie v. Abrahams, 72 A.D.3d 758, 899 N.Y.S.2d 290 (2d Dept.2010); Zak v. Brookhaven Mem. Hosp. Med. Ctr., 54 A.D.3d 852, 853, 863 N.Y.S.2d 821 (2d Dept.2008); see also, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572 (1986). The plaintiff is required to show that the alleged deviation was a “substantial factor in producing the injury.” Arkin v. Resnick, 68 A.D.3d 692, 890 N.Y.S.2d 95 (2d Dept.2009) citing, Zak v. Brookhaven Mem. Hosp. Med. Ctr., supra. Once the proponent satisfies the initial burden, it then shifts to the opponent, who must submit evidentiary facts sufficient to rebut the prima facie showing so as to demonstrate the existence of a triable issue of fact. See, Alvarez v. Prospect Hosp., supra at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572.
Here, the expert affidavits of the parties to this portion of the motion are well developed and based on the record, nevertheless are conflicting and require denial of the summary judgment motion. “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury.” Feinberg v. Feit, 23 A.D.3d 517, 519, 806 N.Y.S.2d 661 (2d Dept.2005)[internal citations omitted]; Colao v. St. Vincent's Med. Ctr., 65 A.D.3d 660, 661, 885 N.Y.S.2d 306 (2d Dept.2009); Deutsch v. Chaglassian, 71 A.D.3d 718, 896 N.Y.S.2d 431 (2d Dept.2010).
The Woodhull defendants also argue that there is no evidence that Ms. Knights complained of hypoxia and thus she did not have a “classic” presentation of symptoms for pulmonary embolism when in the emergency room. Whether or not Ms. Knights' signs and symptoms presented in text book fashion is an issue of fact for expert opinion thus precluding summary judgment. Additionally, whether Ms. Knights advised the Woodhull personnel that she was taking birth control is debated by the parties and also presents a question of fact. As these queries remain unsettled and the experts proffer differing medical opinions, summary judgment must not be granted.
This constitutes the decision, opinion and order of this court.