Mary
D'Alessandro, as Administratrix of the Estate of Anthony Michael D'Alessandro,
Plaintiff,
against
Nassau Health Care Corporation, NASSAU
UNIVERSITY MEDICAL CENTER, JATINDER SINGH, M.D., DR. STEPHENS,
M.D., PAUL E. SCOTT, M.D. and JANE A. BALDWIN,
Defendants.
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000894/13
Ansa Assuncao, LLP
Attorneys for Plaintiff
707 Westchester
Avenue, Suite 309
White Plains, NY 10604
(914) 298-2260
Pillinger Miller Tarallo, LLP
Attorneys for Defendant, Baldwin
570 Taxter
Road, Suite 275
Elmford, NY 10523
(814) 703-6300
Barlett,
McDonough & Monaghan, LLP
Attorneys for Defendants, NHCC, NUMC,
Singh, Stephens, Scott
670 Main Street
Islip, NY 11751
(631)
277-0300
Randy Sue Marber, J.
Upon the foregoing papers, the motion (Mot. Seq. 03) by the Defendants, Nassau
Health Care Corporation, Nassau University Medical Center, Jatinder Singh, M.D., Dr.
Stephens, M.D. and Paul E. Scott, M.D., pursuant to CPLR § 3212, seeking an
Order granting summary judgment dismissal of the Plaintiff's complaint as well as any
and all Cross-claims for contribution or common law indemnification and the Motion
(Mot. Seq. 04) by the Plaintiff, Mary D'Alessandro, as Administratrix of the Estate of
Anthony Michael D'Alessandro, seeking an order pursuant to CPLR 3212 granting her
partial summary judgment against the Defendants, Nassau Health Care Corporation,
Nassau University Medical Center, Jatinder Singh, M.D., Dr. Stephens, M.D. and Paul E.
Scott, M.D., and imposing liability on them for negligence and/or medical malpractice
are determined as provided herein.
On April 4, 2012, while crossing Hempstead Turnpike in Levittown at
approximately 9:15 p.m., the Plaintiff, Mary D'Alessandro's son, Anthony Michael
D'Alessandro (hereinafter "Anthony") was struck by a vehicle traveling 40 miles per hour
which was being driven by the Defendant, Jane A. Baldwin. It is not disputed that he
suffered a tear to his descending aorta which caused the formation of a pseudoaneurysm
and a widening of his mediastinum. The mediastinum is the thoracic cavity that contains
the heart. A pseudoaneurysm is a collection of blood contained in a thin layer of
connective tissue around the artery. Anthony was transported by ambulance to Nassau
University Medical Center (hereinafter "NUMC") where he was treated until he expired
at 11:50 p.m. that night. The Plaintiff in this action seeks to recover for wrongful death,
medical malpractice and negligence based on her son's death while being cared for at the
Defendant, NUMC, by the Defendants, Dr. Singh, Dr. Stephens and Dr. Scott, who were
acting as employees of the Defendant, Nassau Health Care Corporation (hereinafter
"NHCC"). She also seeks to recover punitive damages. The Defendants, NHCC, NUMC,
Dr. Singh, Dr. Stephens and Dr. Scott, seek summary judgment dismissing the complaint
against them. In the alternative, they seek dismissal of the claim for punitive damages.
The Plaintiff has moved for summary judgment imposing liability on the moving
Defendants for medical malpractice and negligence.
The facts pertinent to the
determination of these motions are as follows:
After evaluating Anthony at
the scene of the accident, the EMTs notified the hospital of his emergent status as
traumatic. As a result, the Emergency Room attending doctor, the Defendant, Dr. Singh,
immediately activated the Trauma Team consisting of himself as the [*2]Trauma Team leader, the attending on-call surgeon, the
Defendant, Dr. Scott, the Trauma Team's chief resident, the Defendant, Dr. Stephens,
and the Defendant, Dr. Patel, a first year intern. That Team was assembled by 9:26 p.m.
Dr. Barrett, the thoracic surgeon on call, lived only ten minutes away, in Westbury, and
was available via telephone. Anthony arrived at NUMC at 9:32 p.m. While the Plaintiff's
expert opines that Anthony arrived in hypovolemic shock, the medical evidence does not
support that conclusion. However, at 9:54 p.m., Dr. Singh determined that Anthony's
internal bleeding was causing hypotension (low blood pressure especially in the arteries
of the systemic circulation) despite having already received a liter of fluids and that he
was "hemodynamically compromised." He did eventually respond favorably to the
administration of additional fluids. At approximately 10:00 p.m, a chest x-ray was
performed. Anthony's records reflect that it was initially misread by Dr. Stephens as
showing "no widening of mediastinum" but when the radiologist reviewed it, he
concluded that it revealed an "[e]nlargement of the superior mediastinum" and that the
possibility of trauma to the aorta could not be ruled out. Dr. Scott agreed with the
radiologist's interpretation of the x-ray when he reviewed it. A CT scan was ordered and
at approximately 10:15 p.m., the results of which revealed that there was, in fact, an
injury to Anthony's proximal descending aorta with active extravasation/pseudoaneurysm
formation and an extensive mediastinal hematoma. In other words, his ruptured aorta's
bleeding was being confined to a sac. Dr. Stephens testified at his Examination Before
Trial (EBT) that he personally knew this from his own observations of the CT scan at
10:12 p.m. The Trauma Team note reads "[T]ransfer immediately started to
cardiothoracic unit at LIJ/North Shore."
It is not disputed that there are three
ways to treat this injury: A stent can be done through femoral vessels into the aorta to
cover the pseudoaneurysm; cardiopulmonary bypass can be performed to repair the
injury; or, the patient's chest can be immediately opened and a clamp and sew procedure
can be done without a bypass machine. NUMC lacks the ability to perform the stent and
bypass procedures because it does not have a cardiopulmonary bypass machine. Dr.
Stephens contacted Dr. Barrett for his opinion and he determined that Anthony had to be
transferred immediately. However, at his EBT, Dr. Barrett was unable to recall that
communication. He did, however, testify that under the circumstances, he would have
recommended an immediate transfer. Dr. Stephens communicated with Dr. Scott, who
was performing an appendectomy and Dr. Scott agreed that an immediate transfer was
necessary. He believed that the risk of the clamp and sew procedure outweighed the
possible benefits and that Anthony's best prognosis required stabilizing him until one of
the other procedures could be performed at another hospital.
Dr. Patel
communicated the need for the transfer to an operator for the North Shore-LIJ hospital
system at 10:16 p.m. and was told that he would be called back with the name of a
doctor. NUMC received a call-back from Kristen at Cohen's Children Hospital at LIJ at
10:32 p.m., who told Dr. Patel that she needed to speak with his "senior doctor." Dr.
Patel testified at his EBT that he put Dr. Stephens on the phone, but Dr. Stephens denies
ever speaking to anyone outside of NUMC about the transfer. Dr. Stephens did tell Dr.
Patel that he needed to obtain Anthony's parents' consent to the transfer. Pursuant to Dr.
Stephen's instructions, Dr. Patel began filling out the hospital transfer form shortly after
that.
Anthony became hypotensive and bradycardiac at 11:04 p.m. and at
11:05 p.m. he [*3]suffered a cardiac arrest. Efforts to
revive him were made, but at 11:20 p.m. he suffered a second cardiac arrest. NUMC was
contacted by Cohen's Children Hospital at LIJ that "Dr. Silver" had determined that the
transfer should not be to Cohen's Children's Hospital at LIJ but rather to North
Shore-Manhasset under the care of Dr. Platz. Dr. Silver attests that because Anthony
required endovascular intervention for an aortic injury, a transfer as an adult to North
Shore-Manhasset, as opposed to Cohen at LIJ as a child, was appropriate. Dr. Patel,
however, told the caller that the transfer should be cancelled as the patient was dying.
The Plaintiff seeks to recover of the medical Defendants for medical malpractice
and wrongful death as well as negligent hiring, training, supervision and retention. The
acts of negligence, as detailed in her Bill of Particulars, have been limited at this
juncture, to the following acts of negligence:
Violations of New York State
Regulations by failing to have a cardio-thoracic surgeon available within 30 minutes.
Violations of New York State Regulations by failing to inform pre-hospital
providers, i.e., the EMTs, that as an institution, it had stopped performing surgery on
traumatic aorta injuries so that patients presenting with the possibility of that injury,
including Anthony, could be brought to a hospital that provided such care.
Violations of New York State Regulations by failing to have a written transfer
agreement with other institutions which causes delay(s) in transfer(s).
Negligently training doctors on how to treat and transfer trauma patients and a lack of
systematic coordination which lead to a misunderstanding about the procedures to be
followed in the event of a transfer.
Negligently failing to perform surgery and
gross negligence in failing to calling in a cardio-thoracic surgeon.
Negligently allowing trauma surgeons with no experience in cardio-thoracic surgery to
misdiagnose the aortic tear's location and in so doing, misdiagnosing the need for
immediate surgery.
Delaying Anthony's transfer by requiring a CT scan to
confirm a diagnosis which they knew they would not treat.
Violating New
York State Regulations by not promptly transferring Anthony and gross negligence in
failing to either perform surgery or have him transferred.
Violating NUMC's
procedures by delegating an intern physician with no experience in transfers or in
treating an aortic injury to arrange Anthony's transfer.
Negligently failing to
take measures to control Anthony's injuries.
It is well established that a party
moving for summary judgment must make a prima facie showing of entitlement as a
matter of law, offering sufficient evidence to demonstrate the absence of any material
issue of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851,
853 [1985]). Once the moving party has made a prima facie showing, the burden shifts to
the party opposing the motion to produce evidentiary proof in admissible form which
establishes the existence of a material issue of fact (Zuckerman v. City of New
York, 49 NY2d 557 [1980]; Alvarez v. Prospect Hosp., 68 NY2d 320
[1986]). A defendant seeking summary judgment bears the burden of establishing its
prima facie entitlement to judgment as a matter of law by [*4]affirmatively demonstrating the merit of its defense, rather
than merely by pointing out gaps in the plaintiff's case (Alizio v. Feldman, 82 AD3d
804 [2d Dept. 2011]; Nationwide Prop. Cas. v. Nestor, 6 AD3d 409, 410 [2d
Dept. 2004]). Where the moving party fails to make a prima facie showing, the motion
must be denied regardless of the sufficiency of the opposing party's papers (Lee v. Second Ave. Vil.
Partners, 100 AD3d 601 [2d Dept. 2012], citing Winegrad v. New York
Univ. Med. Center, supra at p. 852). The motion court is required to accept the
opponents' contentions as true and resolve all inferences in the manner most favorable to
them (Giraldo v. Twins
Ambulette Serv., Inc., 96 AD3d 903 [2d Dept. 2012]). Further, "[t]he courts
function on a motion for summary judgment is to determine whether material factual
issues exist, not to resolve such issues (citations omitted)' " (Ruiz v. Griffin, 71 AD3d
1112, 1115 [2d Dept. 2010], quoting Lopez v. Beltre, 59 AD3d 683, 685 [2d Dept. 2009]).
"In order to establish the liability of a professional health care provider for
medical malpractice, a plaintiff must prove that the provider departed from accepted
community standards of practice, and that such departure was a proximate cause of the
plaintiff's injuries (quotations omitted)" (Schmitt v. Medford Kidney Ctr., 121 AD3d 1088 [2d Dept.
2014], quoting DiGeronimo v.
Fuchs, 101 AD3d 933 [2d Dept. 2012], quoting Stukas v. Streiter, 83 AD3d
18, 23 [2d Dept. 2011], citing Fink v. DeAngelis, 117 AD3d 894, 896 [2d Dept. 2014]).
A delay in transfer clearly may serve as the basis of a claim for medical malpractice. Guerin v. North Shore University
Hosp., 13 AD3d 481 (2d Dept. 2004). "[A] professional health care provider
who moves for summary judgment dismissing a complaint alleging medical malpractice
must establish, prima facie, either that there was no departure or that any
departure was not a proximate cause of the plaintiff's injuries (quotations omitted)"
(Schmitt v. Medford Kidney Ctr, supra at 1088, quoting Gillespie v. New York Hosp.
Queens, 96 AD3d 901, 902 [2d Dept. 2012]). " In order to sustain this burden,
the defendant must address and rebut any specific allegations of malpractice set forth in
the plaintiff's [complaint and] bill of particulars (citations omitted)' " (Bendel v. Rajpal, 101 AD3d
662, 663 [2d Dept. 2012], quoting Wall v. Flushing Hosp. Med. Ctr., 78 AD3d 1043, 1045
[2d Dept. 2010]).
"Once the health care provider has made such a showing,
the burden shifts to the plaintiff to demonstrate the existence of a triable issue of fact, but
only as to the elements on which the defendant met the prima facie burden"
(Schmitt v. Medford Kidney Ctr, supra at 1088, citing Gillespie v. New York
Hosp. Queens, supra at 902; Stukas v. Streiter, supra at 24). The plaintiff
must meet that burden "through the submission of evidentiary facts or materials"
(Schmitt v. Medford Kidney Ctr, supra at 1088-1089, citing Zapata v. Buitriago, 107 AD3d
977 [2d Dept. 2013]; Stukas v. Streiter, supra at 24).
"Establishing proximate cause in medical malpractice cases requires a plaintiff to
present sufficient medical evidence from which a reasonable person might conclude that
it was more probable than not that the defendant's departure was a substantial factor in
causing the plaintiff's injury" (Semel v. Guzman, 84 AD3d 1054, 1056 [2d Dept. 2011],
citing Johnson v. Jamaica Hosp.
Med. Ctr., 21 AD3d 881, 883 [2d Dept. 2005]; Goldberg v. Horowitz, 73
AD3d 691 [2d Dept. 2010]; see also, Skelly—Hand v. Lizardi, 111
AD3d 1187, 1189 [2d Dept. 2013]). A plaintiff is not required to eliminate all other
possible causes (Skelly—Hand v. Lizardi, supra at 1189). "The plaintiff's
evidence may be deemed legally sufficient even if [her] expert cannot quantify the extent
to which the defendant's act or omission decreased the plaintiff's chance of a [*5]better outcome or increased [the] injury, as long as
evidence is presented from which the jury may infer that the defendant's conduct
diminished the plaintiff's chance of a better outcome or increased [the] injury" (Alicea
v. Ligouri, 54 AD3d 784, 786 [2d Dept. 2008], quoting Flaherty v. Fromberg, 46
AD3d 743, 745 [2d Dept. 2007]; citing Barbuto v. Winthrop Univ. Hosp.,
305 AD2d 623, 624 [2d Dept. 2003]; Wong v. Tang, 2 AD3d 840, 840-841 [2d Dept. 2003];
Jump v. Facelle, 275 AD2d 345, 346 [2d Dept. 2000], lv denied 95 NY2d 931
[2002]).
" [G]eneral allegations that are conclusory and unsupported by
competent evidence tending to establish the essential elements of medical malpractice are
insufficient to defeat a defendant's motion for summary judgment (citations omitted)' "
(Bendel v. Rajpal, supra, at p 189, quoting Bezerman v. Bailine, 95 AD3d 1153, 1154 [2d Dept.
2012]; Savage v. Quinn, 91
AD3d 748, 749 [2d Dept. 2012]). And, a plaintiff's expert's statement which "fail[s]
to respond to relevant issues raised by the defendants' experts" does not suffice to
establish the existence of a material issue of fact. Ahmed v. Pannone, 116 AD3d 802 (2d Dept. 2014); see
also, Brinkley v. Nassau Health
Care Corp., 120 AD3d 1287 (2d Dept. 2014). Furthermore, an expert's opinion
which is conclusory and fails to set forth his or her rationale, methodology and reasons
therefor also fails to establish an issue of fact. Rivers v. Birnbaum, 102 AD3d 26, 44 (2d Dept. 2012); Dunn v. Khan, 62 AD3d
828, 829-830 [2d Dept. 2009]). And, "a plaintiff cannot, for the first time in
opposition to a motion for summary judgment, raise a new or materially different theory
of recovery against a party from those pleaded in the complaint and the bill of particulars
(citations omitted)" (Palka v.
Village of Ossining, 120 AD3d 641[2d Dept. 2014]; see also, Golubov v. Wolfson, 22 AD3d
635 [2nd Dept. 2005]).
Finally, "[s]ummary judgment is not appropriate
in a medical malpractice action where the parties adduce conflicting medical expert
opinions" (Feinberg v. Feit,
23 AD3d 517, 519 [2d Dept. 2005]; see also, Hayden v. Gordon, 91 AD3d 819 [2d Dept. 2012]). "Such
conflicting expert opinions will raise credibility issues which can only be resolved by a
jury" (Geronimo v. Fuchs, supra at 936).
In support of their motion,
the medical Defendants have submitted the affirmation of Board Certified Emergency
Physician, Timothy Haydock, M.D. As an initial matter, the court rejects the Plaintiff's
objection to Dr. Haydock's qualifications. In fact, in large part, it is the actions of the
emergency room doctors that the Plaintiff faults. It is in part, their failure to call in a
thoracic surgeon that the Plaintiff objects to. As such, his qualifications have been
adequately established. Nor will Dr. Haydock's affirmation be disregarded as untimely
under CPLR § 3101 (d). Rivers v. Birnbaum, 102 AD3d 26 (2d Dept. 2012).
Having reviewed the pertinent legal and medical records, Dr. Haydock opines, to
a reasonable degree of medical certainty, as follows:
Succinctly put, Dr.
Haydock opines that the usual and appropriate orders were issued and carried out upon
Anthony's arrival, including medical tests, blood pressure maintenance, resuscitation
efforts and blood transfusions, during his care at NUMC. He opines that a transfer was
the ideal medical decision. He opines that the stent and bypass procedures are equally
risky and successful, whereas the clamp and sew procedure carries a much higher risk of
mortality and/or paraplegia. He notes that it was entirely up to the doctors at North
Shore-LIJ as to whether and where Anthony could be transferred. He notes that a transfer
could not be attempted until Anthony was accepted somewhere. In addition, he opines
that a hospital would [*6]not accept Anthony without a
definitive diagnosis, which necessitated a CT scan and that as soon as the results of the
CT scan were available, all of the efforts required for a transfer were put into place. Dr.
Haydock opines that the availability of Dr. Barrett, as a cardio-thoracic surgeon, was
adequate and that there was never any reason to call him to the hospital.
Dr.
Haydock opines that the delay in transferring Anthony, if any, lay at the hands of North
Shore-LIJ. He notes that there is no record of what transpired between 10:32 p.m., when
Kristen, from Cohen's Children Hosptial at LIJ, first contacted NUMC, and 11:42 p.m.,
when the follow up phone call was received instructing NUMC that
Northshore-Manhasset would accept Anthony. As for the failure to perform a clamp and
sew procedure, Dr. Haydock opines that the choice to stabilize Anthony, pending his
transfer so that the more appropriate procedure could be performed, was always the
medically favored course until Anthony began to decline, which happened so quickly
that the alternative procedure of clamp and sew became impossible.
Via the
affirmation of Dr. Haydock, the medical Defendants have established their entitlement to
summary judgment thereby shifting the burden to the Plaintiff to establish the existence
of a material issue of fact with respect to malpractice/negligence claims, not proximate
cause.
In opposition to the Defendants' motion and in support of her motion
for summary judgment, the Plaintiff has submitted the affirmation of thoracic and cardiac
surgeon, Thomas Jay Berger, M.D. While he has not employed the magic words "to a
reasonable degree of medical certainty," " it is "reasonably apparent" that [he] intends to
signify a probability supported by some rational basis' "(Kahvejian v. Pardo,125
AD3d 936 [2d Dept. 2015], quoting Matott v. Ward, 48 NY2d 455, 459 [1979],
quoting Matter of Miller v. National Cabinet Co., 8 NY2d 277, 282 [1960]).
Having reviewed the pertinent legal and medical records, he opines as follows:
Upon Anthony's arrival, the medical Defendants were aware that he had been hit by a
vehicle and had suffered a classic "deceleration type injury," which Dr. Berger opines is
associated with a traumatic rupture of aorta. In fact, Dr. Barrett acknowledged this at his
EBT. He explains that this is caused when "the relatively mobile heart and transverse
aorta swing forward within the chest causing a tear of the upper portion of the
descending aorta where it is anchored to the back of the chest...." He opines that "[a]ny
patient who has been in a deceleration injury with a sudden blow to the chest should be
suspect for the presence of an aortic tear (quotations omitted)." He notes that it was
particularly likely that Anthony would suffer a traumatic rupture of his aorta since he was
a pedestrian without the benefit of a seatbelt or air bags. And, he notes that traumatic
ruptures to the aorta occur when a dummy is hit at 25 miles per hour and the Defendant,
Baldwin, was traveling at least 40 mph. He also notes that Anthony's abrasions and
bruises on his chest only increased the likelihood of a ruptured aorta. He also notes that
Anthony was "cold and pale" on his arrival at NUMC, which was a sign of peripheral
vasoconstriction, suggestive of shock or imminent shock and that his blood pressure was
89/47 at 9:54 p.m. following one liter of saline having been infused four minutes earlier,
which was unstable by definition. He notes that the American College of Radiology
states that "a HIGH index of suspicion for traumatic rupture of the aorta MUST be
assumed for any patient who has sustained high-speed rapid deceleration" and that 30%
of initial survivors of a traumatic [*7]ruptured aorta die
within six hours.
Dr. Berger opines that the widening of the mediastinum in
the context of a known severe deceleration injury should be considered as virtually
diagnostic of a traumatic rupture of the aorta. In fact, he opines that the nature of the
injury, alone, sometimes results in a patient being brought into surgery without an x-ray
(quotations omitted). Dr. Berger opines:
With a classic deceleration injury
and a classic CXR [chest x-ray] demonstration of a widened mediastinum, standard of
care would be to recognize that extravasation of blood from a torn aorta was being held
back only by a thin layer of connective tissue (i.e., a pseudoaneurysm) which could
rupture at any moment resulting in nearly immediate massive intrathoracic hemmorrhage
and death. The situation is like having a time bomb inside the chest which could explode
at any moment.
As such, Dr. Berger opines that the nature of the accident,
coupled with the x-ray, provided adequate grounds for a demand of an immediate
transfer to a facility where the desired procedures could be done. Indeed, he opines that
"[i]mmediate repair is usually indicated unless there are severe coexisting injuries that
require medical or surgical management" and "immediate open surgical repair unless
associated lethal injuries take priority." Dr. Berger notes that Anthony was not suffering
from "severe coexisting injuries" or "associated lethal injuries." Dr. Berger, therefor,
opines that the CT scan should not have been done at NUMC, but rather should have
been done at a facility which was able to address the situation should the
pseudoaneurysm rupture before or while that study was being done. He notes that the
ultimate diagnosis was further delayed because other anatomical areas were also scanned
at that time. Dr. Berger notes that the suspected diagnosis was confirmed by the CT scan
at 10:15 p.m. and that the transfer destination was approximately 20 minutes away,
which allowed plenty of time for a transfer before Anthony went into cardiac arrest.
Dr. Berger also opines that Anthony's injury was "eminently treatable" by the
clamp and sew technique, with or without a passive shunt. He disagrees with the
Defendants' position that that procedure has a very high risk of mortality and morbidity.
He cites specific studies done at, inter alia, Harvard's Massachusetts General
Hospital, which found mortality rates from 1% to 7.5% and a 2.5% risk of parapalegia,
depending on the circumstances. Dr. Berger notes that Anthony's aortic tear was found at
autopsy to be 3.5cm beyond the takeoff of the left subclavian artery, which is the most
common and most easily repaired anatomic type of thoracic aortic rupture. He opines that
it could have been repaired by any competent cardio-thoracic surgeon with a clamp time
under 45 minutes and attests that he has personally repaired comparable lesions in less
than 20 minutes. Dr. Berger further notes that Anthony did not have any comorbidities
that could have affected the success of the clamp and sew procedure. He was 170
pounds, 69 inches, normally developed and nourished with a normal cardiovascular
system. Dr. Berger opines that Anthony was "a perfect candidate for the clamp and sew
technique" and that "he could have been operated on with low mortality and negligible
risk of parapalegia up until the time that he went into cardiac arrest." Dr. Berger
concludes that "NUMC's failure to provide either timely transfer or surgical intervention
to repair the tear of the [Anthony's] descending aorta and allowing him to bleed to death
is a gross deviation from an acceptable level of care expected of a personal Level I
Regional Trauma Center in New York State."
Dr. Berger opines that Dr.
Barrett had the duty to respond to calls from the trauma surgeon, Dr. Scott, but notes that
Dr. Scott never spoke with him personally. Rather, if Dr. Barrett spoke with anyone,
which is not clear, he spoke with Dr. Stephens and advised a transfer. At his EBT, Dr.
Barrett testified that he would have come to NUMC to treat Anthony had he become
hypotensive or had the trauma team advised him that he had become hypotensive. Dr.
Berger opines that Anthony, in fact, was hypotensive with Systolic blood pressure under
90 and was going into shock long before he arrested. Dr. Berger believes that the
standards followed by Dr. Barrett concerning when he would come to the hospital to treat
are far too risky as he waits far too long to report, thereby nearly assuring that patients
like Anthony will bleed massively before surgery is attempted. He opines that short of a
policy change, ambulances should not transport patients with deceleration injuries to
NUMC. In addition to faulting Dr. Barrett for not coming to NUMC, Dr. Berger faults
Dr. Scott for not talking with Dr. Barrett about Anthony's status and urging him to report
for surgery. He attributes this behavior to Dr. Scott's ignorance regarding the necessity
for immediate surgery for a patient suffering from an aortic pseudoaneurysm due to blunt
force trauma. He notes that Dr. Scott testified at his EBT that surgery should be
undertaken within 24 hours. Such testimony is oblivious to the fact that 80-85% of
people suffering from this condition die at the site of the accident and 30% who reach the
hospital are dead within six hours. Clearly, such a lethal injury cannot wait 24 hours to be
treated. Dr. Berger notes that it was the procedure at NUMC for Dr. Scott to begin the
surgery in preparation of Dr. Barrett's arrival and for Dr. Barrett to complete the
procedure and had that been done, Anthony could have been saved.
Dr. Berger also faults the medical Defendants for misdiagnosing the location of the aortic
tear. He notes that while Dr. Scott denies it and testified that he never considered a
thoracotomy because he is not qualified to do that, Dr. Stephens testified at his EBT that
he and Dr. Scott considered doing an emergency thoracotomy to try and cross-clamp the
aorta, but the tear's location was brought up [and ] "the tear was right around the take-off
of the left subclavian artery." In any event, Dr. Berger notes that the tear was not where
Dr. Stephens testified it was but was, in fact, 3.5cm distal to the left subclavian artery,
allowing more than adequate space for clamping and suturing.
Dr. Berger also faults NUMC for not having an established procedure for the prompt
transfer of Anthony to a designated facility that could treat him. He notes that Dr. Scott
testified to his awareness of only an informal policy at NUMC that patients presenting
with aortic injuries cannot be operated on without a cardiopulmonary bypass machine,
which NUMC does not have.
In addition, Dr. Berger faults Dr. Scott for allowing Dr. Patel, who lacked training
and experience with patients suffering from aortic injuries and lacked training in
transferring trauma patients, for arranging Anthony's transfer. He notes that Dr. Patel
lacked training in ACLS, which State Regulations require of trauma team members and
that he did not even know who the attending doctor for Anthony was. He opines that Dr.
Scott shared in the responsibility of assuring a qualified doctor was attending to
Anthony's transfer in light of the fact that Dr. Barrett was not called upon to report to the
hospital. He notes that Dr. Patel's first conversation with someone from the North
Shore-LIJ system was with Kristen from Cohen's Children Hospital at LIJ. He opines that
given Anthony's size, this was completely inappropriate. He opines that [*8]"pediatric" hardly applies to a fully developed 170 pound
16 year old male and that Anthony should have been transferred after either his x-ray or
CT scan to North Shore-Manhasset. Dr. Berger opines that a surgeon to surgeon
"hot-line" would be the appropriate way for promptly arranging a critical transfer like
this and that the lack of this kind of procedure contributed to Anthony's death.
Finally, Dr. Berger opines that if a delay was necessary, the medical Defendants
failed to comport with good and accepted medical procedures. More specifically, a
patient who presents with a ruptured thoracic artery and a pseudoaneurysm should be
given beta blockers and vasodialtors to keep blood pressure relatively low to reduce
arterial wall pressure and decrease the risk of a rupture of the pseudoaneurysm. He notes
that while Dr. Barrett admitted his familiarity with this at his EBT, NUMC never
instituted any protocols for such treatment. He notes that "[t]he trauma team simply had
no experience or training in the delayed treatment for surgical intervention of a traumatic
aortic injury." He opines that Dr. Scott had no training with respect to the use of beta
blockers on patients with delayed surgical intervention for an acute traumatic injury. In
fact, Dr. Scott testified at his EBT that he did not know whether NUMC ever provided
training to its trauma team with respect to that or with respect to vasodialators, either.
Given the amount of time required for a transfer to be accomplished, which the testimony
established varied from between one hour to three or four hours, he faults NUMC for not
having a protocol for the proper treatment for patients whose surgical care is being
delayed.
The Plaintiff has also submitted the affidavit of Board Certified Emergency Room
Physician, Dennis P. McKenna, M.D. He has been practicing at the busiest, by patient
volume, Level I Trauma Center in the State of New York, Albany Medical Center. His
affidavit will also be accepted despite his failure to set forth the magic words, "to a
reasonable degree of medical certainty." See Kahvejian v. Pardo, supra, quoting
Matott v. Ward, supra, quoting Matter of Miller v. National Cabinet Co.,
supra. Having reviewed the pertinent legal and medical records, he opines as
follows:
Like Dr. Berger, Dr. McKenna opines that Anthony's symptoms, coupled with the
accident type, were indications of an acute traumatic injury to his aorta. He notes that Dr.
Barrett acknowledged, at his EBT, that car accidents are a primary cause of that
condition. Dr. McKenna notes that the potential for a traumatic aortic injury was
confirmed by the x-ray at 9:59 p.m.; that the aortic injury was definitively confirmed by
10:15 p.m. via CT scan; that at 10:45 p.m., the medical Defendants still did not know
where Anthony was being transferred; that Anthony went into cardiac arrest at 11:05
p.m.; and, that he was prononunced dead at 11:50 p.m. due to a tear in his aorta. He
opines that NUMC and the doctors made no attempt to treat Anthony's aortic injury and
failed to identify a facility that he could be transferred to to have his aorta surgically
repaired before he died. He opines that these actions constitute negligence and/or a
deviation from accepted practice which resulted in Anthony's death.
Dr. McKenna notes that NUMC purports to be a Level I regional trauma center which is
required to comply with New York State Regulations and Codes. It purports to follow
the Advanced Trauma Life Support for Doctors ("ATLS"). The ATLS provides
guidelines to manage all traumatic emergencies. In fact, Dr. Singh testified at his EBT
that the Trauma Team and the Emergency Room are required to follow it in order to take
care of trauma patients. Dr. McKenna opines that NUMC and the doctors' care of
Anthony violated New York State [*9]Regulations
applicable to Level I regional trauma centers, the ATLS guidelines and its own internal
policies and procedures applicable to the care and transfer of trauma patients.
Dr. McKenna notes that 10 NYCRR § 708.5 (I) (3) (iv) requires that regional
trauma centers have surgical specialties staffed by qualified specialists, including cardiac
and thoracic surgeons, available within 30 minutes. While Dr. McKenna opines that this
means that a capable surgeon is required to be at the hospital and prepared to offer
life-saving intervention within 30 minutes, the regulation does not say that. While Dr.
Barrett was available within 10 minutes if called to the hospital, Dr. Scott never called
upon him to report. Dr. McKenna opines that Drs. Scott's, Stephens' and Singh's failure
to call upon Dr. Barrett to report violated the State Regulations, the ATLS guidelines and
NUMC's own procedures and was a violation from the standard of care for the treatment
of a trauma patient presenting with an acute traumatic aortic injury that required
immediate surgical intervention. He notes that Dr. Barrett conceded that the clamp and
sew procedure could be done at NUMC, if necessary, and that the need arises in extreme
emergency situations when the patient is unstable. Dr. Barrett also testified that the
correct protocol for medication when treating a patient with a pseudoaneurysm includes
using a beta blocker to keep blood pressure steady at or below 120 in order to keep the
pseudoaneurysm from exploding, but not much below 120 because perfusion would be
lost. While Dr. Barrett testified that Anthony was in stable condition from 9:33 p.m. until
11:05 p.m., since the aortic rupture was contained within connective tissue, he admitted
that if between 10:37 p.m. and 11:05 p.m. he became hypotensive or if the trauma team
believed that the aorta began to bleed massively, he would have come in to perform
surgery. He testified that a hypotensive heart rate for a young adult would be above 120
and a hypotensive blood pressure reading would be below 90 over 70. Dr. McKenna
notes that all of these conditions were present "including a massive hemorrhage from the
chest greater than 1500 cc, severe hypotension that did not respond to fluid
administration and a massive amount of blood in the chest." The Defendants point out,
though, that those conditions were only confirmed at autopsy and there is no evidence to
establish how long those conditions existed before Anthony's death. Dr. McKenna notes
that no one called Dr. Barrett in to operate even though Dr. Scott could have begun the
surgery and had Dr. Barrett take over upon his arrival. Dr. McKenna also notes that
NUMC failed to have a resident from North Shore-LIJ emergency medicine on the
trauma team, which he alleges is required by its own mandatory guidelines.
Dr. McKenna also faults NUMC for not publicizing its institutional determination, made
in 2000, to stop performing emergency surgery on trauma patients suffering from a
traumatic aortic injury. He notes that Dr. Barrett testified as such at his EBT and said it
was owing to their lack of any endovascular stenting capacity and a cardio-pulmonary
bypass machine. Dr. Barrett cited the exorbitant costs of one and the fact that
neighboring hospitals have them. Dr. McKenna notes that 10 NYCRR § 708.5 (I)
(3) (xxx) requires NUMC to "establish field protocols and procedures with the
prehospital providers in its service area which include the mechanism of injury and
abnormal physiological signs." He notes that NUMC considers "pedestrian struck" a
"high risk mechanism" of injury. Yet, the EMTs were not notified of its change in policy,
which Dr. McKenna opines was a deviation from accepted medical practice and a
contributory factor in Anthony's death. Dr. McKenna opines that had the EMTs been
notified of NUMC's policy not to operate, they could have brought Anthony [*10]elsewhere where he could have received immediate
surgical care.
Dr. McKenna additionally opines that NUMC and the doctors deviated from accepted
medical practice by ordering additional tests to confirm the aortic injury before
undertaking efforts to transfer Anthony. He opines that a "widened mediastinum" is the
primary radiologic sign on a chest x-ray that indicates the likelihood of a major vascular
injury to the chest under the ATLS manual. In fact, he states that the ATLS manual sets
forth the following "PITFALL," which is a warning directed to hospitals as
follows:Delayed or extensive evaluation of the wide mediastinum without cardiothoracic
surgery capabilities may result in an early in-hospital rupture of the contained hematoma
and rapid death from exsanguination. All patients with a mechanism of injury and simple
chest x-ray finding suggestive of aortic disruption should be transferred to a facility
capable of rapid definitive diagnoses and treatment of this injury
The ATLS manual also states that "[o]nce the need for transfer is recognized,
arrangements should be expedited and not delayed for diagnostic procedures (eg
computed tomographic [CT] scan) that do not change the immediate plan of care." Dr.
McKenna notes that at 9:59 p.m., Anthony's chest x-ray showed that his superior
mediastinum was enlarged and that the possibility of a trauma to the aorta could not be
ruled out. Since NUMC did not treat that condition surgically, it should have undertaken
to transfer Anthony, immediately. He opines that NUMC instead wasted precious time by
ordering a CT scan to confirm an injury that it would in any event not treat, as well as
additional tests. Dr. McKenna faults the Defendant doctors, Singh and Barrett, for not
being familiar with the ATLS procedures as they both testified that NUMC's policy was
to do further testing to confirm the injury before undertaking a transfer of the patient. He
opines that that error delayed Anthony's transfer and contributed to his death. Dr.
McKenna notes that the Defendant doctors testified that NUMC's policy was to confirm
the aortic tear before implementing the transfer and that is in direct contravention to the
ATLS guidelines, which NUMC purports to follow.
Dr. McKenna notes that NUMC did not have a written agreement regarding the transfer
of patients suffering from traumatic aortic injuries and even lacked a protocol for their
transfer despite their refusal to treat that injury. He opines that this also constitutes a
deviation from accepted medical practice which also contributed to Anthony's demise.
Dr. McKenna notes that 10 NYCRR § 708.5 (I) (2) (ii) requires hospitals to have
written transfer agreements with a regional trauma center and an area trauma center (as
appropriate) and that even regional trauma centers are required by 10 NYCRR §
708.5 (I) (3) (xxx) to "have a written agreement with all hospitals in the region [which]
specifies the scope of services provided by the receiving hospital and the transferring
hospital." See also, 10 NYCRR § 400.9 (transfer agreements contents). He notes
that NUMC had no such agreement at the time it treated Anthony, despite its limited
policies on treating his type of injury. This, he opines, was a deviation from accepted
medical practice.
In addition, Dr. McKenna notes that NUMC failed to adequately train its staff regarding
the procedures to follow to effectuate a patient's transfer. In fact, it violated its own
policy regarding transfers. Its procedures require the emergency room doctor to take
charge of a transfer. The Rule reads:
For all transfers both stable and unstable: The Emergency Department physician must
notify the [*11]appropriate medical facility of the transfer
and receive consent from the receiving facility for the transfer. The appropriate medical
facility has qualified personnel, capability and space to treat this patient. The Emergency
Department physician must speak directly to the accepting physician.
He notes that Dr. Singh, the Emergency Department physician, testified at his EBT that
NUMC's policy required him to turn Anthony's care over to the attending surgeon, Dr.
Scott, entirely once it was determined that surgical intervention was necessary. Thus, he
abdicates himself of any responsibility for Anthony once the results of the CT scan were
known. He testified that it was entirely up to Dr. Scott whether Anthony should be
transferred and did not recall ever being responsible for the transfer of a patient with a
thoracic aortic injury. Dr. Singh testified that he had no idea of the procedures used in
that situation and did not even know what hospital such a patient would be transferred to.
In contrast, Dr. Scott testified that he never assumed primary responsibility for Anthony's
care and treatment. He testified that that was Dr. Singh's responsibility as the Trauma
Team leader and that he had primary responsibilty for coordinating Anthony's transfer. In
fact, Dr. Scott testified that the Emergency Department deals with all transfers and that
the surgery department has no responsibility for that. Dr. McKenna opines that the lack
of coordination regarding who was responsible for transfers also contributed to the delay
of Anthony's transfer and his death.
Furthermore, Dr. McKenna opines that the medical Defendants violated both the State
Regulations and the ATLS in not transferring Anthony promptly once it was determined
that a transfer was necessary. 10 NYCRR § 708.5 (i) (2) (iv) provides:
Once the decision to transfer has been made, it should be effected as soon as possible.
Resuscitation and stabilization should begin at the referring hospital, realizing that the
patient's problems may be such that true stabilization may only be possible at the regional
trauma center....
And, the ATLS provides that "[p]atient outcome is directly related to the time elapsed
between injury and properly delivered definitive care" and that "traumatic aortic rupture
is a common cause of sudden death after an automobile collision...." The ATLS
provides:
that for survivors, recovery is frequently possible if aortic rupture is identified and treated
immediately ... Continuity maintained by an intact adventitial layer or contained
mediastinal hematoma prevents immediate death. Many surviving patients die in the
hospital if left untreated.
Dr. McKenna notes that despite the determination by Dr. Barrett that a transfer should be
arranged "immediately," a call was placed to a central system for North Shore-LIJ, which
Dr. Scott described at his EBT as a "behemoth hospital system" consisting of more than a
dozen facilities. At 10:40 p.m., Dr. Patel did not know what, if any, hospital would
accept Anthony and transport was yet to be arranged. At 10:45 p.m., Dr. Scott did not
know what, if any, facility was accepting Anthony. From 10:15 p.m. until 11:06 p.m., no
one ever expressed any concern that the transfer arrangements were being unreasonably
delayed. Dr. McKenna opines that NUMC's physicians' delay in accomplishing a prompt
transfer of Anthony was both a deviation from accepted medical practice as well as a
contributing cause of his death. Dr. [*12]McKenna also
opines that Drs. Scott, Stephens and Singh's failure to arrange for a prompt transfer to an
adequate trauma facility evidenced a conscious and reckless disregard for Anthony's
rights and a gross indifference to his well-being, equivalent to a gross deviation.
Dr. McKenna also faults the Defendants for designating Dr. Patel to be in charge of
Anthony's transfer. He opines that that was also in violation of NUMC's internal
procedures applicable to patient transfers. Again, he notes that NUMC's procedures
designated Dr. Singh as the Emergency Department physician responsible for the
transfer. Dr. Patel was a first year surgical intern who had only received two days
orientation training regarding NUMC's policies and procedures. Dr. Patel had no formal
training regarding patient transfers. In fact, he had never seen a trauma patient
transferred, let alone personally seen to a transfer before. He was completely unaware of
contacting a specific hospital regarding a transfer and instead contacted the entire North
Shore-LIJ system. Despite the fact that both Drs. Barrett and Scott knew that they had
never transferred a patient with a traumatic aortic injury to Cohen's Children Hospital,
Dr. Patel was never told this. He simply asked the person at the desk to connect him to
North Shore-LIJ system and never got the name of the person he spoke with originally.
Despite Anthony's physique, NUMC was then put in touch with Cohen's Children's
Hosptial. As late as 11:05 p.m., NUMC did not know which facility Anthony was being
transferred to. Dr. McKenna opines that putting Dr. Patel in charge of Anthony's transfer
deviated from accepted medical practice and caused a delay in his transfer which
contributed to his death.
Dr. McKenna also opines that Drs. Stephens, Scott and Singh's failure to transfer
Anthony or to surgically intervene in his care demonstrated a reckless and gross
indifference to his well-being.
Finally, Dr. McKenna faults the Defendants, Drs. Stephens, Scott and Singh, for
engaging in improper chart documentation and medical record keeping contemporaneous
with Anthony's treatment. Suffice it to say, he has identified numerous inconsistencies
between chart entries and medical records and testimony, rendering the chart entries and
medical records' authenticity subject to question.
Upon review of the entire record before the Court, the Plaintiff has not established issues
of fact with respect to NUMC's alleged failure to have a cardio-thoracic surgeon
available; Dr. Stephen's misdiagnosis of the widening of Anthony's mediastinum; and,
for an award of punitive damages.
Dr. Barrett was available within 30 minutes, as required by the regulations. Given the
fact that that error was quickly remedied, the claim regarding Dr. Stephen's misdiagnosis
of the widening of Anthony's mediastinum could not have contributed to his demise and
is therefore that claim is DISMISSED.
While punitive damages are available as against the individual Defendants (Drisdom v. Niagara Falls Mem.
Medical Center, 53 AD3d 1142 [4th Dept. 2008]), based upon the review of the
entire record before the Court, the conduct alleged here does not rise to the level required
to justify such relief. "The standard for an award of punitive damages is that a defendant
manifest evil or malicious conduct beyond any breach of professional duty" (Dupree v. Giugliano, 20 NY3d
921, 924 [2012]). "There must be aggravation or outrage, such as spite or malice,' or
a fraudulent or evil motive on the part of the defendant, or such a conscious and
deliberate disregard of the interests of others that the conduct may be called wilful or
wanton [*13](quotations omitted)" (Dupree v.
Giugliano, supra at 921, quoting Prosser and Keeton, Torts § 2 at 9-10 [5th ed
1984], citing Prozeralik v. Capital Cities Communications, 82 NY2d 466, 479
[1993]). See, Marsh v. Arnot Ogden Medical Center, 91 AD3d 1070 (3d Dept.
2012) ("[w]illful failure to disclose pertinent medical information" and "[a] medical
facility's failure to provide appropriate safety precautions and training" may provide
grounds for punitive damages). The Plaintiff's claim for punitive damages is therefore
DISMISSED. Here, despite the inconsistencies in Anthony's medical record and
the testimony given at the EBTs, they simply do not reflect that they played a causative
role in Anthony's care so as to serve as a basis for punitive damages.
In opposition to the Plaintiff's motion, the Defendants have again submitted an affidavit
from Dr. Haydock. The court will accept it despite the belated disclosure of the
Defendants' expert. Rivers v.
Birnbaum, 102 AD3d 26 (2d Dept. 2012). He opines to a reasonable degree of
medical certainty as follows:
Once again, he opines that none of the Defendants departed from good and accepted
medical practice and that their care and treatment of Anthony did not contribute to his
demise. He opines that the Defendants administered IV fluids, gave a blood transfusion,
monitored Anthony's vital signs to make sure that his blood pressure remained at
acceptable levels to ward off the possibility of a pseudoaneurysm and promptly initiated
efforts to have him transferred to whichever hospital would accept him, LIJ or North
Shore. The availability of a surgeon and the proper and necessary equipment was of
utmost importance. Dr. Haydock opines that contacting the hospital system as opposed to
a specific hospital was appropriate since those hospitals were best suited to determine
which facility was ideal to treat Anthony.
Dr. Haydock opines that an immediate clamp and sew procedure was not indicated. He
attests that the standards of care in 2012, as articulated by the American College of
Surgeons in the year 2000, required that a patient with a thoracic injury be transferred to
a facility that had a cardiopulmonary bypass machine and employed endovascular
techniques to repair the injury, internally, without the need to crack open the patient's
chest, with limited exception, to wit: When a patient presented with a massive
hemorrhage within his chest greater than 1500cc, severe hypotension that did not
respond to the administration of fluids and a persistent bleed from the chest that
continued for over one to two hours or the presence of a massive amount of blood on a
CT scan. He maintains that this was a universal policy and not one adopted solely by
NUMC. Since these criteria were not present, Dr. Haydock opines that a clamp and sew
procedure was not indicated. Therefore, he opines there was no reason to call Dr. Barrett
into NUMC that evening. Dr. Haydock further opines that there was no reason to
publicize this information to outside providers. He additionally opines that even if the
EMTs had been aware of the policy, they had no way of knowing that Anthony was
suffering from an aortic injury and therefore would have followed normal protocol and
brought him to NUMC as the closest hospital. In fact, he opines that to have transported
him to a hospital further away, under the circumstances, would have been in deviation of
accepted practice since NUMC was closest and was capable of treating a vast majority of
injuries.
Dr. Haydock also opines that standing alone, the presence of a widened mediastinum on
Anthony's chest x-ray did not indicate the need for an immediate transfer. That diagnosis
indicates a major vascular injury which is not limited to an aortic injury: It could also
[*14]reflect a vessel injury which Dr. Barrett could have
treated. Similarly, he opines that a CT scan which is done within minutes and was the
standard of care in 2012 to confirm an aortic injury was necessary to confirm the injury
and the need for a transfer. Without the CT scan, the need for a transfer is speculative.
He opines that only in 10% of cases is an aortic injury diagnosed. As such, transferring
every patient with a widened mediastinum would actually be contrary to accepted
medical practice and pose unnecessary risks.
Relying on an agreement from 1992, Dr. Haydock opines that NUMC had a written
agreement governing transfers. The written transfer agreement relied on by NUMC fails
to establish the Defendants' entitlement to summary judgment with respect to that claim.
It states that the hospital is "ideally equipped" to treat patients with wide superior
mediastinum chest injuries, and contemplates transfer not from it, but rather, to it for
treatment of those injuries which fails entirely to address the circumstances extant. In
fact, that agreement provides that the hospital would direct "the referring physician to the
Emergency Medicine Attending on duty in the relevant area in order to obtain patient
information and to discuss patient management prior to the actual transfer." That
agreement hardly suffices under the circumstances as they existed at the time of
Anthony's treatment.
As for Anthony's transfer, Dr. Haydock opines that it does not matter whether the
Emergency Room doctor or the surgeon was responsible for it: Regardless, Dr. Patel
promptly undertook to accomplish it. Thus, he opines that there is no evidence that
NUMC failed to properly train its doctors on how to effectuate a transfer. He opines that
Dr. Patel took all of the appropriate steps and that the delay, if any, in transferring
Anthony was attributable to North Shore/LIJ's actions or inactions. Similarly, he opines
that Dr. Barrett's availability complied with the applicable regulation. Dr. Haydock also
opines that the guidelines required that the trauma team include a resident from NUMC
or North Shore/LIJ, not both.
Dr. Haydock notes that Dr. Berger failed to acknowledge the decreased risks associated
with the alternative endovascular procedure which could have been performed at North
Shore. More importantly, he opines that the risk of mortality and morbidity from a clamp
and sew procedure significantly exceeds the risks associated with the use of a
cardiopulmonary bypass machine or an endovascular procedure to repair a torn aorta. He
opines that the standard of care recommended by the American College of Surgeons
required the Defendant doctors to arrange for a transfer so that those procedures could be
employed. He further opines that it would have been a deviation from the accepted
standard of care to have performed a clamp and sew procedure on Anthony as he never
met the criteria for that procedure, which was 1500 cc of blood in the chest cavity and
severe hypotension, which was unresponsive to the administration of fluids. On that note,
he opines that the Plaintiff's experts improperly relied on the autopsy report to show that
there was 3000cc of blood in Anthony's chest. He notes that that was after 45 minutes of
CPR and that there is no evidence that the blood was present before that. He opines that
Anthony's transient hypotensive state did not warrant a clamp and sew procedure, either,
since Anthony responded favorably to the administration of fluids. He faults the Plaintiff
for not producing any such evidence of a need for an immediate clamp and sew
procedure. Thus, Dr. Haydock opines that the decision to stabilize Anthony and await
transfer was appropriate. Dr. Haydock also opines that there was no reason to advise
EMTs not to bring patients with deceleration injuries to NUMC. That, he opines, would
place patients at increased risks of [*15]traveling further
for medical care, often unnecessarily.
Dr. Haydock also opines that there was no need for Dr. Scott to speak directly with Dr.
Barrett as Dr. Stephens appropriately facilitated their communications. Nor was there
ever any reason to require Dr. Barrett to come to the hospital.
Dr. Haydock notes that the fact that Dr. Scott could not perform a thoracotomy does not
establish that he could not have begun a clamp and sew procedure.
Dr. Haydock also notes that there is no evidence that treatment could not have been
provided at Cohen's Children Hospital by a cardiothoracic pediatric surgeon so there was
no reason for Dr. Patel or any of the other doctors to take action when contacted by that
hospital. In any event, if there was any confusion regarding where the transfer should go,
he attributes it to North Shore/LIJ.
Dr. Haydock opines that the Defendant doctors properly controlled Anthony's aortic
injury and that there was no reason to resort to vasodialtors or betablockers because
Anthony's blood pressure never exceeded the acceptable levels. He disputes Dr. Berger's
conclusions that the physicians were inadequately trained with repect to this and notes
that the fact that Dr. Scott was not trained at NUMC does not mean that he was never
trained.
Due to the existence of conflicting expert opinions, the parties have established the
existence of numerous issues of fact requiring denial of both motions for summary
judgment. More specifically, there are issues of fact as to:
Whether NUMC acted negligently in failing to advise first responders of their extremely
limited ability to treat traumatic aortic ruptures?
Whether the medical Defendants committed medical malpractice in pursuing additional
tests to confirm the infant Plaintiff's aortic injury?
Whether the medical Defendants committed medical malpractice in failing to call in Dr.
Barrett to have him available to perform a clamp and sew procedure on Anthony and
whether they were negligent in not having one performed?
Whether the medical Defendants committed medical malpractice in failing to control
Anthony's injury while awaiting his transfer?
Whether NUMC was negligent in failing to have a written transfer agreement with LIJ
and North Shore-Manhasset?
Whether the Defendants were negligent in failing to arrange for the prompt transfer of
Anthony?
Whether the medical Defendants were negligent in designating Dr. Patel to arrange for
Anthony's transfer?
Whether NUMC was negligent in its training and supervision of its medical personnel in
accomplishing patient transfers?
Accordingly, it is hereby
ORDERED, that the Defendants' motion (Mot. Seq. 03) pursuant to CPLR
§ 3212, seeking an Order granting summary judgment dismissal of the Plaintiff's
complaint, is GRANTED to the extent that only the Plaintiff's claims that the
Defendants, NASSAU HEALTH CARE CORPORATION and NASSAU
UNIVERSITY MEDICAL CENTER did not have a cardiac thoracic surgeon available
as required by the New York State regulations; and that the widening of Anthony
Michael D'Alessandro's mediastinum was misdiagnosed; and, the Plaintiff's claim for
punitive damages are DISMISSED; and it is further
ORDERED, that the Plaintiff's Motion (Mot. Seq. 04) seeking an order pursuant
to CPLR 3212 granting her partial summary judgment against the Defendants, Nassau
Health Care Corporation, Nassau University Medical Center, Jatinder Singh, M.D., Dr.
Stephens, M.D. and Paul E. Scott, M.D., and imposing liability on them for negligence
and/or medical malpractice, is DENIED.
All matters not decided herein are hereby DENIED.
This constitutes the decision and order of the Court.
Dated:Mineola, New York
May 8, 2015___________________________
Hon. Randy Sue Marber, J.S.C.