Opinion
Index No. 23144/14
01-19-2022
Luis SAMUEL, as Administrator of the Estate of Carol Jones-Moore, Deceased and Luis Samuel, individually, Plaintiffs, v. The ST. JOHN'S RIVERSIDE HOSPITAL, Dominick Artuso, Dominick Artuso, M.D., P.C., Jo Ann Michaelsen, Steven Barry, Derek Soohoo and ENT and Allergy Assoc. LLP, Defendants.
Plaintiffs’ Attorney, Jeffrey B. Bloom, Esq., Gair, Gair, Conason et al., 80 Pine Street, New York, New York 10005, 1(212)943-1090 Defendants’ Attorney, Jennifer J. Bennice, Esq., Heidel, Pittoni, Murphy & Bach, LLP, 81 Main Street, Suite 112, White Plains, New York 10601, 1(914)559-3100
Plaintiffs’ Attorney, Jeffrey B. Bloom, Esq., Gair, Gair, Conason et al., 80 Pine Street, New York, New York 10005, 1(212)943-1090
Defendants’ Attorney, Jennifer J. Bennice, Esq., Heidel, Pittoni, Murphy & Bach, LLP, 81 Main Street, Suite 112, White Plains, New York 10601, 1(914)559-3100
Joseph E. Capella, J.
The following papers numbered 1 to 3 read on this motion.
PAPERS NUMBERED
NOTICE OF MOTION AND CROSS MOTION 1
ANSWERING AFFIDAVIT AND EXHIBITS 2
REPLY AFFIDAVIT AND EXHIBITS 3
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
Defendants, St. John's Riverside Hospital (St. John's) and Jo Ann Michaelsen, seek summary judgment ( CPLR 3212 ) and dismissal of the instant medical malpractice and wrongful death action. The complaint alleges, in sum and substance, that defendants failed to properly diagnose and treat an intra-abdominal infection caused by a lap band, which was originally placed by codefendant, Dr. Dominick Artuso, in March 2003, that developed between January - June 2012, and ultimately lead to decedent's death in December 2013. According to defendants, Dr. Artuso was decedent's private attending physician, who was neither employed nor controlled by St. John's, and as such, plaintiffs’ sole claims against St. John's is based on vicarious liability of their employee, Nurse Practitioner Jo Ann Michaelsen.
It is defendants’ burden, as the movant for summary judgment, to make a prima facie showing of an entitlement to same as a matter of law by tendering sufficient evidence to eliminate any material issues of fact. ( Alvarez v Prospect , 68 NY2d 320 [1986].) In other words, defendants must provide evidentiary proof in the form of expert opinion(s) and/or factual evidence that establishes that defendants did not deviate from accepted standards of care and practice, and as such, their conduct was not a proximate cause of the alleged injuries. ( Fileccia v Massapequa , 99 AD2d 796 [2nd Dept 1984] ; affirmed 63 NY2d 639 [1984].) If defendants do, then the burden shifts to plaintiffs to produce evidentiary proof in admissible form sufficient to create issues of fact to warrant a trial ( Alvarez , 68 NY2d 320 ), and denial of summary judgment.
Dr. Artuso maintained privileges at St. John's, and rented office space at their Dobbs Ferry Pavilion. As part of the rental agreement, St. John's assigned NP Michaelsen to assist Dr. Artuso in his office. Her duties included seeing new and post-operative patients, and evaluating Dr. Artuso's patients admitted to St. John's when Dr. Artuso was not available. On March 3, 2003, Dr. Artuso performed laparoscopic gastric band placement on decedent to address her obesity. Besides placing a lap band around the stomach, a small device called a port was placed under the abdomen's skin. It was connected by tubing to the lap band to allow Dr. Artuso to periodically adjust the tightness of the band by injecting or removing saline water into or from the port. Over the years, decedent routinely followed up with Dr. Artuso for adjustments to the gastric band. On January 23, 2012, decedent met with Dr. Artuso complaining of severe pain near her port site, and a CT scan revealed a hiatal hernia and inflammation. On March 12, 2012, decedent visited Dr. Artuso and indicated that all pain at the port site had resolved. This was the first time NP Michaelsen met decedent, at which time she tightened decedent's lap band.
The next day, March 13, decedent returned complaining that the band was too tight, and when Nurse Michaelsen attempted to aspirate fluid from the port, purulent liquid came into the syringe. Due to a concern for a possible infection, NP Michaelsen sent the fluid to be cultured, prescribed a course of broad spectrum antibiotics, and recommended that decedent follow-up with Dr. Artuso. NP Michaelsen discussed these findings with Dr. Artuso, who ordered additional lab studies including a complete blood count and a CT of the abdomen. Lab results revealed no organisms seen, no polymorphonuclear WBCs observed, and no growth of aerobic organisms after 48 hours. Decedent was prescribed Bactrim DS for 14 days.
On March 19, 2012, decedent went to St. John's Riverside Hospital (SJR) ER experiencing abdominal pain, fever and chills. The wound was aspirated and cultured. Dr. Artuso saw decedent in the ER and noted an enlarging left sided abdominal mass in the vicinity of the port. Later that day he surgically removed the infected subcutaneous gastric port component, and drained the abdominal wall abscess. Decedent was later discharged home. On April 5, 2012, decedent was evaluated by NP Michaelsen, who noted decedent's wound to be clean, then repacked the wound and recommended a follow-up the next week. On April 19, decedent was again evaluated by NP Michaelsen, who noted that the wound was clean and pink with a small amount of yellow drainage on the dressing, but no odor, and she proceeded to repack the wound. On April 26, 2012, decedent returned to Dr. Artuso's office for wound care, at which point NP Michaelsen noted that the incision was closing and would not hold a wick. There was a strong fishy odor, and NP Michaelsen sent a culture to the hospital for analysis. Lab results were received on April 30 indicating the presence of pseudomonas and staphylococcus. On May 9, Dr. Artuso admitted decedent to SJR for an abdominal abscess, and she was discharged on May 14.
On May 31, decedent returned to Dr. Artuso's office to have her incision checked, which revealed a small amount of drainage. NP Michaelsen discussed with decedent the possibility of having the lap band removed, and recommended that decedent follow up with Dr. Artuso if there was no improvement. This was the last time NP Michaelsen saw decedent. On June 1, decedent was admitted to SJR ER for abdominal pain, at which point Dr. Artuso performed surgery to remove the lap band. Massive amounts of scar tissue were noted, and it appeared that the omentum had walled off the lap band from the rest of the abdominal cavity. On June 13, after several days of treatment at SJR, Dr. Steven Barry, an infectious disease expert, determined that the infection had resolved and decedent was discharged. On June 16, decedent was brought to SJR ER by ambulance for right sided weakness and droop. She was diagnosed with intracranial and subarachnoid hemorrhage, and transferred to Westchester Medical Center ER, where she remained until August 2012. In August 2012, decedent was transferred to Regency Extended Care Center, where she remained until August 2013. She was then transferred to St. Joseph's Nursing Home, where she died on December 12, 2013.
Defendants are correct in arguing that as Dr. Artuso was decedent's private attending physician (neither employed nor controlled by St. John's), plaintiffs’ sole claims against St. John's is based on the vicarious liability of their employee, NP Michaelsen. ( Bing v Thunig , 2 NY2d 656 [1957] ; Hills v St. Clare’ Hospital , 67 NY2d 72 [1986].) As to NP Michaelsen, defendants argue that she did not deviate from the standard of care, and the treatment she rendered was not the proximate cause of any damage to decedent. They note that Dr. Artuso testified that although NP Michaelsen could make recommendations to whether a band or port needed removal, the ultimate decision lied exclusively with him. In further support of their motion, defendants also include an expert affidavit by Dr. Michael Schweitzer, a board certified general surgeon. According to Dr. Schweitzer, NP Michaelsen acted in accordance with accepted standards of good medical practice in treating decedent, and fulfilled her duties and responsibilities as a nurse practitioner assigned to Dr. Artuso. He opines that Dr. Artuso was ultimately responsible for all aspects of the surgical care and follow-up treatment, including the timing and removal of all devices related to the gastric band. Dr. Schweitzer states that any claim directed at NP Michaelsen concerning the delay in removing the port or band is misplaced as the timing of sending decedent to the OR and how the surgery was to be performed rested solely with Dr. Artuso as NP Michaelsen was not qualified to do same. He further opines that NP Michaelsen met the standard of care with respect to her communications with Dr. Artuso concerning decedent's care. Lastly, he opines that none of the injuries experienced by decedent, including her death, were caused or contributed by any negligence on the part of NP Michaelsen. Based on the aforementioned, the Court is satisfied that defendants have met their burden for summary judgment, ( Zuckerman v City of NY , 49 NY2d 557 [1980] ; Kaffka v NY Hospital , 228 AD2d 332 [1st Dept 1996] ), which now shifts to plaintiffs to demonstrate that issues of fact exist to warrant a trial.
In opposition, plaintiffs submit an expert affidavit from a board certified general surgeon. He states that on March 13, after NP Michaelsen aspirated purulent fluid from the port, Dr. Artuso decided to remove the port only, even though he was well aware that if the port was infected, the entire lap band was likely infected as well. On March 19, Dr. Artuso encountered a lot of drainage of purulent fluid from an abscess when he made his incision at the port. Plaintiffs’ expert surgeon opines that Dr. Artuso exposed the lap band's tubing to the infected area before returning it into decedent's abdomen. He notes that on March 26, Dr. Artuso noted slight drainage of the wound even though decedent was on antibiotics, and on April 26, NP Michaelsen noted a strong fishy odor. On April 30, the culture showed significant infection, and on May 9 and 17, green drainage continued to come from the wound. On May 31, decedent returned to Dr. Artuso's office complaining that she did not feel better, and on June 1, the lap band was removed. Plaintiffs’ expert surgeon states that where a post-operative patient displays such signs and symptoms of an infected lap band, good and accepted practice requires that unless proven otherwise it should be assumed that the lap band is infected requiring removal as soon as possible.
Plaintiffs’ expert surgeon opines that Dr. Artuso should have realized that the entire lap band needed to come out both prior to and during the March 19 surgery. He states that persistence of wound drainage, fever, chills, abdominal pain and incomplete healing of the wound clearly indicated that there was an ongoing infection that port removal alone did not and could not resolve. It is the surgeon's opinion that these departures were a "significant factor contributing to the exacerbation of the infection ... permitt[ing] it to advance unchecked to a dangerous and life-threatening stage." Plaintiffs also provide an expert affidavit from a board certified neurologist, who provides a similar analysis and opines that "had the infection been avoided or successfully treated earlier, this devastating event, its sequela, and [decedent's] death would not have occurred."
According to plaintiffs’ expert surgeon, NP Michaelsen cannot avoid responsibility for the above failures solely by virtue of the fact that she is a nurse practitioner and not a medical doctor. He states that the assessment and recommendation for band removal is well within the bounds of what a bariatric surgery NP is authorized to perform. Dr. Artuso relied on NP Michaelsen to assist in the diagnosis of lap band infections, recognize the need for surgery and recommend same. Plaintiffs’ expert states that "the best evidence of Dr. Artuso's reliance on NP Michaelsen is that NP Michaelsen, not Dr. Artuso, saw [decedent] four consecutive times during the crucial post-operative month of April 2012, at which time they should have been carefully monitoring her for signs that the remaining lap band was infected." He goes on to state that with the exception of surgery itself, NP Michaelsen was responsible for appropriately assessing and diagnosing decedent's condition and recommending immediate band removal.
The practice of a registered nurse practitioner includes the diagnosis of illness and physical condition and the performance of therapeutic and corrective measures in collaboration with a licensed physician qualified to collaborate in the specialty involved. ( Education Law § 6902(3)(a).) According to plaintiffs’ expert surgeon, NP Michaelsen had a duty to determine that the lap band was infected, recognize the need for surgical removal of the lap band, and recommend surgical removal. He notes that Dr. Artuso and NP Michaelsen worked as a team, and NP Michaelsen was equally responsible for diagnosing and treating infected lap bands. NP Michaelsen testified that she would recommend surgical removal of a lap band when removal of the port failed to resolve an infection. NP Michaelsen saw Dr. Artuso's patients on her own, and planned and ordered necessary treatment without needing Dr. Artuso's authorization or supervision. Plaintiffs’ expert surgeon notes that Dr. Artuso relied on NP Michaelsen to tell him if one of his patients needed surgery, and this was especially important when NP Michaelsen was the only person to see decedent during the critical time period of April 2012.
Defendants argue that as surgical removal of the lap band was not within the scope of NP Michaelsen's responsibilities, there can be no proximate cause between any alleged departure by NP Michaelsen and decedent's injury and/or damage. ( Gilmore v Mihail , 174 AD3d 686 [2nd Dept 2019].) Although it is true that surgical removal of the lap band is not within the scope of NP Michaelsen's responsibilities, she did have a duty to determine whether the lap band was infected, to recognize the need for surgical removal of the lap band, and to recommend surgical removal. NP Michaelsen involvement in what transpired was not that of a mere consultant providing Dr. Artuso with an informal opinion ( Alvarez v Prospect , 68 NY2d 320 [1986] ), but instead she was actively engaged in the care and treatment of decedent. Viewing the evidence in a light most favorable to plaintiffs, ( O'Sullivan v Presbyterian , 217 AD2d 98 [1st Dept 1995] ), including the relationship between NP Michaelsen and Dr. Artuso, there is sufficient evidence from which a reasonably prudent person might conclude that NP Michaelsen's conduct was a substantial factor in causing injury to decedent. ( Blanar v Dickinson , 296 AD2d 431 [2nd Dept 2002].) Overall, and once again viewing the evidence in a light most favorable to plaintiffs, ( O'Sullivan , 217 AD2d 98 ), the parties have come forward with experts who disagree on material issues of fact regarding whether there was a departure and proximate cause ( Alvarez v Prospect , 68 NY2d 320 [1986] ) — issues that must be resolved by the trier of fact. ( Barnett v Fashakin, 85 AD3d 832 [2nd Dept 2011] ; Frye v Montefiore , 70 AD3d 15 [1st Dept 2009] ). The trier of fact will hear from these experts, including the evidence that each one relies upon in forming the basis for their expert opinion, and in turn they will evaluate the weight and credibility of the testimony of these experts. ( Cassano v Hagstrom , 5 NY2d 643 [1959] ; State v Marks , 87 AD3d 73 [3rd Dept 2011].) Therefore, defendants’ motion for summary judgment is denied accordingly. Plaintiffs are directed to serve a copy of this decision with notice of entry by first class mail upon all sides within 30 days of receipt of copy of same. This constitutes the decision and order of this court.