Opinion
7092/02.
Decided on December 6, 2007.
Birbrower, Beldock Margolis, P.C., New City, NY, Attorneys for Plaintiffs.
Farley Glockner, LLP, By: Mark Khavkin, Esq., Attorneys for Defendant, Timothy Manoni, M.D., Mineola, NY.
Geisler Gabriele, LLP, Attorneys for Defendants, George L. Hines, M.D., Man, Hon, M.D. and William Purtill, M.D., Garden City, NY.
Furey, Kerley, Walsh, Matera, Cinquemani, P.C., Attorney for Defendants, Winthrop University Hospital, Federico Doctor, M.D. and Natalie Klein, M.D., Seaford, NY.
The motion by defendant Timothy Manoni, M.D. for summary judgment pursuant to CPLR 3212 (Seq. no. 3) is denied. The motion by defendants George L. Hines, M.D., Man Hon, M.D., and William Purtill, M.D. for summary judgment pursuant to CPLR 3212 is granted, and the complaint is dismissed as against these defendants.
In this medical malpractice action the plaintiff's decedent John Vetrone, 75 years old, was admitted to Winthrop University Hospital for repair of an endovascular aortic aneurysm in the abdominal aorta. Vetrone suffered from coronary artery disease, pulmonary hypertension and left ventricular dsyfunction, and had previously undergone cardiac catheterization. Dr. Hines, a vascular surgeon, initially saw the patient after the aneurysm had been revealed by the catheterization. Dr. Hon, a radiologist, confirmed the diagnosis. Dr. Hines discussed the procedure he intended to use with Vetrone, which was placement of an endograft stent in the affected vessel. Dr. Hines testified at his examination before trial that the purpose of the stent was to exclude the aneurysm from the blood's circulation. He obtained Vetrone's consent to perform the operation.
The procedure took place on November 8, 2000. Dr. Hines performed the operation as principal surgeon. After an initial attempt at placement through the femoral artery was blocked by a twist in that vessel, a second incision was made and he placed the stent in the aortic artery via the iliac artery, which was closer to the aneurysm. He was assisted by Dr. Purtill, another vascular surgeon. Dr. Hon was also present, as was Dr. Manoni, also a vascular surgeon, who had asked to "scrub in"for the surgery and was listed as first assistant in the operative report. Dr. Manoni was Board certified in general surgery, and was "board eligible" for vascular surgery. Dr. Manoni testified that became Board certified in vascular surgery in either 2000 or 2001.
Defendant Hector Dourron, M.D., was also present, but as his role is not at issue here no further reference to him will be made.
The procedure was successfully completed, and Dr. Hines and Dr. Purtill left the room. Although the record is not perfectly clear on this point, it is apparent that Dr. Manoni had been asked or volunteered to close, but it is undisputed that he undertook the task. He removed the surgical packing and noticed a pool of venous (dark) blood pooling in the pelvis. The blood was coming from a small hole in the iliac vein, which Dr. Manoni testified occurred during the surgery. Dr. Manoni decided to close the opening with a single stitch. However, the vein tore when he attempted to tie the knot down, and began to bleed at a much greater rate than it had previously. Dr. Manoni testified that the tearing occurred because the vein was friable, and could not hold the suture. He further testified that he learned of the friable nature of the vein when it tore.
According to uncontradicted testimony elicited from Dr. Hines, friable blood vessels are those with very thin walls.
Dr. Manoni testified that he attempted to clamp the vein to stop the bleeding while a resident assisted him, but could not. He stated the vein was too friable. He then asked a nurse to call Dr. Hines and Dr. Purtill back to the operating room. Dr. Hines returned and was able to stop the bleeding and to repair the vein. However, the patient had lost a great deal of blood during the course of the surgery (the operative report states 17 liters) and he died twenty days later from complications, including the blood loss. This action followed.
To establish a claim in medical malpractice, a plaintiff must demonstrate that the defendant was professionally negligent in that he or she departed from accepted medical practice, and that the departure or departures were the proximate cause of the damages complained of. See, e.g., Thompson v Orner, 36 AD3d 791 (2nd Dept. 2007); Wicksman v Nassu County Health Care Corp., 27 AD3d 664 (2nd Dept. 2006). Drs. Manoni, Hines, Hon and Purtill now move for summary judgment on the ground that there were no such departures.
On a motion for summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor (CPLR 3212 [b]), which may include deposition transcripts and other proof annexed to an attorney's affirmation. Olan v Farrell Lines, 64 NY2d 1092 (1985). Absent a sufficient showing, the court should deny the motion, irrespective of the strength of the opposing papers. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 (1985).
If a sufficient prima facie showing is made, however, the burden then shifts to the non-moving party. To defeat the motion for summary judgment the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212 (b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 NY2d 965 (1985); Zuckerman v. City of New York, 49 NY2d 557 (1980). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 AD2d 513 (2nd Dept. 1988). Conclusory allegations are insufficient ( Zuckerman v. City of New York, supra), and the defending party must do more than merely parrot the language of the complaint or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter Co., Inc., 207 AD2d 380 (2nd Dept. 1994); Toth v. Carver Street Associates, 191 AD2d 631 (2nd Dept. 1993). Nor can mere speculation serve to defeat the motion. Pluhar v Town of Southhampton, 29 AD3d 975 (2nd Dept. 2006); Ciccone v Bedford Cent. School Dist., 21 AD3d 437 (2nd Dept. 2005).
However, the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v Tedlen Realty Corp., 305 AD2d 385 (2nd Dept. 2003); Rizzo v. Lincoln Diner Corp., 215 AD2d 546 (2nd Dept. 1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring a trial exist. Dyckman v. Barrett, 187 AD2d 553 (2nd Dept. 1992); Barr v County of Albany, 50 NY2d 247, 254 (1980); James v. Albank, 307 AD2d 1024 (2nd Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 AD2d 330 (2nd Dept. 1993).
The Court finds, and the plaintiff concedes in her memorandum of law, that the defendants have each made out a prima facie case for summary judgment by way of the expert submissions. These are the affidavit by Larry A. Scher, M.D., for Manoni, and the affirmation of Luke K. Licalzi, M.D., for Hines, Hon, and Purtill. Both experts are Board certified surgeons, and Dr. Scher is certified in vascular surgery. Each makes his statement upon a review of the record of Vetrone's admission, and materials developed during the course of the instant litigation, including deposition transcripts.
Memorandum of Law in Opposition, at 4.
Dr. Scher states that Manoni is claimed by the plaintiff to have departed from good and accepted medical practice by, among other things, failing to secure the iliac vein, causing the patient to bleed significantly, and failing to recognize the damage done and to respond in an appropriate manner. He asserts that none of this is accurate.
He opines that that Manoni was a well-trained surgeon who was qualified to close. He also states that injury to the iliac vein is always a risk of the procedure, and that Manoni's decision to close the hole with a single stitch was appropriate. Further, he could not have determined that the vein was friable until after the suture was put in and an attempt to tie was made. Once the heavy bleeding began after the vein tore, he acted appropriately by calling back Hines. Post-operatively, Manoni had very limited involvement with the patient, who was followed by Hines, the principal surgeon on the case. What limited involvement he had was in accord with good and accepted medical practice, and caused no injury to the Vetrone.However, this prima facie showing that there were no departures from good and accepted medical practice has been met by the plaintiff's expert. Her expert, Willard C. Johnson, M.D., acknowledges that injury to the iliac vein is a recognized complication, and that the record does not reveal how the initial hole came to occur. He also does not contend that there was some way for Manoni to know that the vein was friable (and thus prone to tearing) before the attempt to close the hole was made by placement of a suture.
Nevertheless, he disagrees with Dr. Scher in one critical area: that the initial suture should have been attempted by first dissecting the vein and clamping it, and then suturing. Johnson Aff., para. 9. Although the expert does not point to anything in the record to support an additional statement that Manoni continued his attempts to suture after the first suture gave way, without any attempt to clamp the vessel and Manoni's own deposition testimony does not indicate that he did in fact continue to suture before calling for Hines to return there is a clear distinction between Dr. Johnson's evaluation of initial proper procedure and Dr. Scher's. Further, this departure was, in the expert's view, a proximate cause of the additional and critical blood loss that undisputedly was a significant factor in Vetrone's demise. Where experts disagree as to some critical aspect of the patient's care that is shown to be a proximate cause of the injury, an issue of fact is presented and summary judgment is inappropriate. See, Welch v Scheinfeld, 21 AD3d 802 (1st Dept. 2005); Golub v Sutton, 281 AD2d 589 (2nd Dept. 2001); Johanessen v Singh, 259 AD2d 670 (2nd Dept. 1999).
The Court reaches a different conclusion with regard to the other defendants. Initially, plaintiff's expert has nothing to say about any alleged acts or omissions of Drs. Hon and Purtill, which means that the motion as to them is unopposed by any competent proof, and summary judgment must be granted to them as a result. See, Davenport v County of Nassau, 279 AD2d 497 (2nd Dept. 2001).
With regard to Hines, the plaintiff's expert does not claim that anything he did in the operating room constituted malpractice. Rather, he asserts that his actions fell below acceptable standards of care by leaving the operating room after the procedure was completed. The expert opines that because bleeding is a known complication from this type of surgery Hines, as lead surgeon, should not have left until reasonably certain that such bleeding had not occurred. Relatedly, he asserts that Hines "abandoned the patient" to Manoni to close after a complicated arterial aneurysm surgery, and that Manoni was not
Board certified in vascular surgery and had minimal experience at iliac vein repair. The expert also claims that Hines is responsible for Manoni, as a physician he directed and controlled.
However, the expert does not state, based upon his review of the medical record, what steps Hines should have taken, but did not, to check for bleeding, or what signs of bleeding existed that he missed. He does not indicate, even in a general sense, what evidence existed that something was amiss. Indeed, the only evidence of bleeding requiring additional surgical attention that has been pointed to by any party in this case was that which was discovered by Manoni when he attempted to close. Under these circumstances, the expert's silence as to additional signs not noted, or evaluations not made, renders without probative force his statement that Hines should not have left until he was sure there was no such bleeding. The same is true with regard to his much more general statement that Hines should have stayed with the patient until the closing doctor ascertained that there were no significant complications but without stating what those complications were or might be (other than bleeding, discussed above). Significantly, the expert does not state that staying with a patient until the closing is accomplished, irrespective of the patient's condition, is generally recognized as good and accepted surgical practice.
Therefore, any malpractice on Hines's part rests, if it rests at all, on leaving Manoni to close. Here too, however, the expert does not indicate beyond generalizations about the complicated nature of the surgery why it was inappropriate to leave Manoni, who was Board certified in general surgery at the time (if not yet in vascular surgery) to undertake the task. There is no reference to the condition of the patient as Hines left, nor to procedures that were involved in closing after this type of surgery, that would support his implied but clear conclusion that such a closing was appropriate only for a Board certified vascular surgeon. Further, the problem Manoni encountered in attempting to deal with the bleeding iliac vein cannot be used against Hines for the simple reason that Hines did not know about it at the time he departed. As indicated above, the plaintiff's expert offers nothing to support a conclusion that there was more that Hines should have known, or should have tested for, with regard to blood loss before Manoni was left to close the patient.
Finally, the statement about Hines being responsible for Manoni is more legal than medical in nature, and is without merit. Absent some traditional basis for vicarious liability, such as partnership, master/servant or agency, one physician can be held vicariously liable for another's active negligence only if he or she had "some control of" the actively negligent physician's "course of treatment." Kavanaugh v Nussbaum, 71 NY2d 535, 547 (1988), quoting Graddy v New York Med. Coll., 19 AD2d 426 (1st Dept. 1963); see also Reeck v Huntington Hosp., 215 AD2d 464 (2nd Dept. 1995). This means that some actual control over the manner in which the procedure was performed must be present, i.e., direct supervision. Id.; cf., Ross v Mandeville, _AD3d_, 2007 WL 4125382 (2nd Dept. Nov. 20, 2007).
It is undisputed that this was not the case, and the plaintiff has presented no authority for the dubious proposition that simply because a surgeon is designated lead or principal surgeon he or she is personally liable for any errors made by other physicians or personnel also present in the operating room. Nor has she provided any proof that would render Hines responsible for Manoni under any established vicarious liability theory, as noted above. In that regard, the plaintiff has argued in her Memorandum of Law that "apparent or ostensible agency" may serve as a predicate for liability, but the one case cited appears to be at odds not only with Kavanaugh but with the present view of the same appellate court.
Hovsepian v Kleinman-Cindrich, 239 AD2d 317 (2nd Dept. 1997) [plaintiff treated by other chiropractors in defendant's office; summary judgment denied on theory of apparent agency]. While agency remains a basis for vicarious liability in the general sense, it is clear that control is still key, and there is no discussion of control to be found in the decision. The use of "apparent" agency as being sufficient also seems at odds with the Appellate Division's recent discussion in Ross, supra, of one physician's control of another physician as being necessary for imposing liability.
In any event, no facts are adduced in support of such "apparent" or "ostensible" agency other than a consent form signed by the decedent referring to the use of associates and assistants to perform surgical procedures "as are necessary and desirable in the exercise of their professional judgment." (Emphasis provided.) The form thus contemplates professional judgment by each such assistant and associate, not just the surgeon who will be the lead or principal surgeon.There is therefore no proof advanced indicating that Hines led Vetrone to believe that it was only his judgment that would be in play throughout, and that the others were to do his bidding and would not act on their own. The Court thus concludes that the plaintiff has failed to demonstrate that issues of fact exist regarding Hines's control and/or responsibility for Manoni's acts, even assuming that he asked Manoni to close before he left the room.
In sum, the plaintiff's medical expert has raised issues of fact with regard to whether Dr. Manoni's actions the day of the surgery constituted actionable malpractice, but has failed to do so with regard to the other moving defendants.
This shall constitute the Decision and Order of this Court.