In this action, the plaintiff Diana Cardamone, as Administratrix of the Estate of Rose Slaughter, seeks to recover damages for personal injury and the wrongful death of her mother, Rose Slaughter. Ms. Slaughter died at Stony Brook University Hospital on September 20, 2002, following a ten-day hospitalization for an infected surgical wound. All of the defendants in this action attended to Slaughter at some point during her hospitalization at Stony Brook University Hospital. The cause of Slaughter's death was hemorrhaging, which progressed into [*2]disseminated intravascular coagulopathy, acidosis and death. Actions against Stony Brook University Hospital to recover for Slaughter's conscious pain and suffering and wrongful death are pending in the Court of Claims.

Defendant Dr. Hong, who at the time was in the second month of her second year of her five-year residency in general surgery at Stony Brook University Hospital, seeks summary judgment dismissing the complaint and any and all cross-claims against her.

The facts for the purposes of deciding this motion as gleaned from documents submitted in support, opposition and pleadings are alleged as follows:

Slaughter was hospitalized by defendant Dr. Ricotta, Chairman of Stony Brook University Hospital's Department of Surgery, at Stony Brook University Hospital on September 8, 2002 for treatment to a wound infection in her left leg following femoral popliteal bypass surgery which was performed earlier that summer. The timeline and sequence of medical services to plaintiff would indicate that debridement of the infected wound was successfully performed by Dr. Ricotta and Dr. Gasparis, a second year vascular surgeon fellow who had already completed a five-year surgical residency, on September 9, 2002. Dr. Ricotta and defendant Dr. Criado, Slaughter's attending, a vascular surgeon, determined that surgery was required to improve Slaughter's blood flow to her left kidney. On September 19, 2002, transluminal balloon angiography of the renal artery ("TBARA") was successfully performed between 11:17 AM and 12:14 PM. by Dr. Criado with defendant Drs. Gasparis and Ricotta assisting. Slaughter was transferred to the Anesthesia Intensive Care Unit ("AICU") . However, at approximately 1:00 PM, Slaughter's (hematocrit) "Hct," which measures the volume of blood in the intravascular space and is a standard test used to determine blood loss, dropped from 36.8 to 30 and her systolic blood pressure dropped from 117 to the 70's. Until approximately 4PM, Slaughter was administered to by nursing staff and a first-year anesthesia resident, defendant Dr. Dana. Large doses of fluid were administered in an attempt to raise her blood pressure, Slaughter's blood pressure continued to fall to the 70's and 60's. Slaughter was seen at approximately 5:00 PM by Dr. Ricotta along with the vascular surgical team of defendant Drs. Gasparis, Ametrano, a first year surgical resident, and Pocock, a third year surgical resident. At his deposition, Dr. Ricotta testified that he would have gleaned Slaughter's vital signs from her chart and the attending nurse. Dr. Gasparis testified similarly that he would have checked Slaughter's chart for her vital signs and that they were aware of her low blood pressure. Both doctors acknowledged that decreased blood pressure can be indicative of blood loss. [*3]

Dr. Pocock ordered a Hct (hematocrit count) to assess Slaughter for bleeding and Dr. Ricotta left the hospital. Minutes later, Slaughter's Hct measured 24.l and Nurse Pogazy paged the vascular surgery team. Drs. Gasparis, Pocock and Ametrano responded. Dr. Gasparis inserted a right subclavian vein central venous catheter for vascular access to administer fluids and blood.

At 6:10 PM defendant Pocock ordered transfusions of units of packed red blood cells over four hours each. At Dr. Pocock's direction, Slaughter was brought to radiology at approximately 6:30 PM to have a pelvic/abdominal CT scan performed to rule out a retroperitoneal bleed. Nurse Pozgay testified at her examination-before-trial that she accompanied Slaughter to Radiology along with Drs. Gasparis, Pocock and Ametrano. Upon reading the film, the radiologist's impression was a large retroperitoneal hematoma in the right hemipelvis producing a contour deformity in the bladder, with a suggestion of active bleeding. The CT scan report noted: "As per the radiology resident on-call, the vascular surgery service was well aware of these findings." Dr. Gasparis acknowledged at his examination-before-trial seeing the hematoma on the CT scan himself. Despite this, it appears that the hematoma was not documented in Slaughter's chart by any of the doctors, surgeons or nurses.

At 7:00 PM, Dr. Pocock ordered a chest x-ray to access the placement of the central venous catheter and Slaughter's transfer to the Surgical Intensive Care Unit for closer monitoring. He also ordered that a hematocrit and hemoglobin count be done at the completion of the first transfusion. At 7:30 PM Nurse Pozgay paged Dr. Hong, a second year resident on overnight call who was assigned to the AICU night team, because the chest-ray revealed that the catheter of her central venous pressure line was positioned incorrectly and her blood pressure dropped. At her examination before trial, Dr. Hong testified that she discussed the situation with Dr. Uppal, the Chief Surgical resident before proceeding. The blood transfusion was interrupted to enable Dr. Hong to fix the catheter's positioning. At her examination-before-trial, Dr. Hong further testified that she observed that Slaughter's blood pressure was 60/30 and 60/35. She testified that she notified Dr. Gasparis about Slaughter's blood pressure and that the central venous line needed to be replaced. Dr. Hong further testified that after the central venous line was fixed, the transfusion resumed but was accelerated to one hour increments at Dr. Gasparis' direction, with a hematocrit and hemoglobin count to be done when the transfusions were completed. Slaughter's blood pressure rose to 105/45 after the central venous line was fixed. An Hct count was not done until 11:23.

At approximately 11:00 AM, Slaughter was transferred to the Surgical [*4]Intensive Care Unit to second year resident defendant Dr. Sogawa's care. He was never made aware of the CT scan results, i.e., retroperitoneal bleed. Slaughter's condition worsened and she was brought to the operating room a short while later for surgery. Shortly thereafter, she coded and died.

In her Bill of Particulars, plaintiff alleges that all defendants failed to be aware of information such as Slaughter's baseline vital signs, laboratory tests and CT scan results; failed to appreciate that Slaughter was actively bleeding and that her condition was deteriorating; failed to inform other more senior physicians that Slaughter's condition was deteriorating; and failed to formulate a plan to address Slaughter's active bleeding and recommend returning the patient to the operating room.

"On a motion for summary judgment pursuant to CPLR 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Sheppard-Mobley v King, 10 AD3d 70, 74 (2d Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986); Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985)). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (Sheppard-Mobley v King, supra, at p. 74; Alvarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Ctr., supra.) Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact (Alvarez v Prospect Hosp., supra, at p. 324). The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference (see, Demishick v Community Housing Management Corp., 34 AD3d 518 (2d Dept. 2006), citing Secof v Greens Condominium, 158 AD2d 591 (2d Dept. 1990)).

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted practice and evidence that such departure was a proximate cause of injury or damages (Ramsay v Good Samaritan Hosp., 24 AD3d 645 (2d Dept. 2005); see also, DiMitri v Monsouri, 302 AD2d 420, 421 (2d Dept. 2003); Holbrook v United Hospital Medical Center, 248 AD2d 358, 359 (2d Dept. 1998)). "In a medical malpractice action, the party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue of fact as to whether the defendant physician [and/or hospital] were negligent" (Taylor v Nyack Hospital, 18 AD3d 537 (2d Dept. 2005) citing Alvarez v Prospect Hospital, 68 NY2d 320, 324 [*5](1986)). Thus, a moving defendant doctor or hospital has "the initial burden of establishing the absence of any departure from good and accepted medical malpractice or that the plaintiff was injured thereby" Williams v Sahay, 12 AD3d 366, 368 (2d Dept. 2004), citing Winegrad v New York University Medical Center, supra; seealso, Thompson v Orner, supra.)

While resident physicians will not be held liable when they are following the orders of attending doctors whose directions are not clearly contraindicated by normal practice (Cerny v Williams, 32 AD3d 881 [2nd Dept. 2006]; Petty v Pilgrim, 22 AD3d 478 [2nd Dept. 2005]; Soto v Andaz, 8 AD3d 470, 471 [2nd Dept. 2004]; Water v Betancourt, 283 AD2d 223, 224 [1st Dept. 2001]), independent acts by residents, including the failure to summon appropriate assistance when warranted, may constitute negligence giving rise to the resident's individual liability (Pearce v Klein, 293 AD2d 593 [2nd Dept. 2002]; see also, Cerny v Williams, supra; Petty v Pilgrim, supra; compare, Labadarios v Kobren, 191 Misc 2d 86 [Supreme Court Nassau Co. 2002]; see also, Byrnes v Scott & Lenox Hill Hospital, 175 AD2d 786 (1st Dept. 1991); Gruntz v Deepdale General Hospital, 163 AD2d 564 (2nd Dept. 1990)).

Succinctly stated, the plaintiff maintains that Dr. Hong's failure to treat Slaughter and to apprise her attending doctors of her worsening condition caused a delay in medically necessary lifesaving surgery and constituted medical malpractice.

In support of her motion for summary judgment, Dr. Hong has submitted an Affirmation by a Board Certified General and Thoracic Surgeon, Dr. Angelo Reyes. He opines with a reasonable degree of medical certainty that Dr. Hong did not depart from good and accepted standards of medical care in caring for Slaughter, nor was her care of Slaughter a proximate cause of her death. In explaining his conclusion he states: "[a]s a second year resident, Dr. Hong would have to make decisions with respect to this patient's management and would act only at the direction of more senior physicians, such as the chief resident, the fellow and/or attendings." He notes that Dr. Hong's progress note authored on September 19, 2002 and timed at 20:30 (8:30 PM) indicates that she had conferred with the vascular fellow Antonio Gasparis, M.D. and the deposition testimony indicates that during the critical time frame, Dr. Hong also conferred with the chief surgical resident Dr. Uppal. Dr. Gasparis was in the second year of his Vascular Surgery fellowship and Dr. Uppal was the Chief Surgical resident. The Chief Resident is a physician in the fifth and final year of the General Surgery residency. Dr. Reyes concludes that both physicians were significantly more experienced [*6]than Dr. Hong and were the senior physicians in a decision-making position in regards to the on-call and nighttime organizational structure of the hospital. He further opines that the decision whether to bring the patient's condition to the attention of the attending physicians, Dr. Ricotta and Dr. Criado, would be the responsibility of the Vascular Surgery fellow or Chief Resident in accordance with the organizational chain of command. He opines that "[u]nder the circumstances of the instant case, Dr. Hong would not have the authority or responsibility to make the decision to contact the attending physicians. She appropriately brought all relevant clinical information to the attention of her immediate superiors." As for Dr. Hong's alleged unawareness of Slaughter's baseline vital signs, earlier laboratory results and CT scan results, Dr. Reyes states that "this information was already in the possession of her immediate superiors. Dr. Hong was called for the primary purpose of repositioning the central venous catheter. She promptly completed this task, correcting the position of the previously placed catheter. While tending the patient, she appropriately noted the decreased blood pressures and brought this information to the attention of her immediate superiors. Dr. Hong appropriately took direction from Dr. Gasparis and wrote orders as instructed. It would not be the second year resident's responsibility to develop treatment plans or decide to return the patient to the operating room. These are directions that are made by the more senior physicians who were aware of the patient's condition."

The defendant Dr. Hong has not established her entitlement to summary judgment. Contrary to Dr. Reyes' conclusions, it is far from clear that Dr. Hong communicated vital information regarding Slaughter's condition to the appropriate doctors. Both Drs. Criado and Ricotta have testified that they were not told of the CT scan results or Slaughter's hematocrit counts, nor was Dr. Liu, the attending anesthesiologist, or Dr. Sogawa. And, it is not clear that Dr. Uppal, the five year surgical resident, was made aware of these things, either. Dr. Gasparis denies having been consulted with regarding the change in Slaughter's blood transfusion and the delay in the hematocrit count, which plaintiff's expert states constituted a departure, too. Issues of fact exist as to whether Dr. Hong departed from the applicable medical protocol.

Assuming, arguendo, that Dr. Hong did establish her entitlement to summary judgment thereby shifting the burden to plaintiff to establish the existence of a material issue of fact. Under that scenario, plaintiff has met her burden of demonstrating a material issue of fact.

The plaintiff has submitted the affirmation of a Diplomate of the American Board of General Surgery with a concentration in vascular surgery. He has attested [*7]that Dr. Hong deviated from generally accepted medical standards in her care of Slaughter. Furthermore, plaintiff notes that numerous doctors who worked at Stony Brook University Hospital and had contact with Ms. Slaughter, even doctors with less experience than Dr. Hong, testified likewise. Succinctly put, many of the doctors have testified that the attending doctor, or at a minimum, a more senior doctor, should have been alerted to Slaughter's deteriorating condition. The plaintiff's expert has in fact identified numerous departures committed by Dr. Hong numerous instances when she failed to render appropriate care or to alert an attending doctor as well as the resulting injuries to Ms. Slaughter.

Plaintiff's expert affirms that he has reviewed the Slaughter's medical records as well as the deposition testimony in this action. He states that he has extensive experience in diagnosing and treating retroperitoneal bleeds. He opines that his review of the pertinent materials leads him to conclude with reasonable medical probability that the medical care rendered by Dr. Hong fell considerably below the accepted standard of care and that numerous departures from accepted and approved methods of practice committed by Dr. Hong were substantial contributing factors to the patient's death and precedent pain and suffering. He opines that when Dr. Hong was called to the recovery room/ICU due to the misplaced catheter tip and low blood pressure, "there can be no question but that the overwhelmingly more important need was to address her rapidly deteriorating systolic blood pressure." He also notes that despite receiving a verbal report from Dr. Pocock regarding the retroperitoneal bleed, Dr. Hong failed to inquire further; ascertain whether any of the attending doctors were informed; and, whether a written report was made available. Plaintiff's expert also criticizes Dr. Hong's failure to have a hematocrit and hemoglobin count done sooner, i.e., when the first blood transfusion was done. Plaintiff's expert further notes that Dr. Hong had no experience in treating patients with suspected retroperitoneal hemorrhage prior to September 19, 2002 and did not know whether a patient suffering with a retroperitoneal hemorrhage accompanied by a suggestion of active bleeding would be the type of critical care issue addressed in the Recovery ICU. Nevertheless, Dr. Hong failed, in alleged violation of Stony Brook University Hospital's formal policy, to notify a superior. And, plaintiff's expert criticizes Dr. Hong for failing to appreciate the dire severity of Slaughter's condition; the possible need for surgical intervention; and, her failure to alert attending doctors of Slaughter's deteriorating condition.

Plaintiff's expert also faults Dr. Hong for not familiarizing herself with Slaughter's medical history, i.e., her falling blood pressure and hematocrit counts, [*8]which would have affected her treatment of Slaughter. Similarly, plaintiff's expert faults Dr. Hong for not communicating this crucial information to follow-up doctors, thereby impeding their treatment of Slaughter, as well.

It is unclear if Dr. Gasparis was continuously kept apprised of Ms. Slaughter's deteriorating condition and if he was consulted with regarding the treatment plan. Assuming, arguendo, that Dr. Gasparis was in fact aware of Ms. Slaughter's deteriorating condition, under the circumstances, whether Dr. Hong acted appropriately still remains a question of fact. Dr. Gasparis was only a second year vascular surgeon resident: whether advising him of Ms. Slaughter's deteriorating condition as it evolved sufficed to entirely absolve Dr. Hong of responsibility presents a question of fact.



Dated: October 3, 2007.

_________________________

Anthony L. Parga, J. S. C.