Fougere v Kingsbrook Jewish Med. Ctr.2010 NY Slip Op 31392(U)

May 28, 2010Supreme Court, Kings County

Docket Number: 34815/07Judge: Gerard H. Rosenberg

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At an IAS Term, Part MMTRP of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 28" day of May, 2010.

P R E S E N T :

HON. GERARD H. ROSENBERG, Justice.

-X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . LOUIS Y. FOUGERE, AS ADMINISTRATOR OF THE ESTATE OF JUSTIN FOUGERE, AND LOUIS Y. FOUGERE, INDIVIDUALLY,

Plaintiffs,

- against -

KINGSBROOK JEWISH MEDICAL CENTER,

The following paDers nunibered 1 to 6 read on this motion:

Notice of MotiordOrder to Show Cause/ PetitiodCross Motion and Affidavits (Affirmations) Annexed

Opposin? Affidavits (Affirmations)

Reply Affidavits (Affirmations) Afi'idavit (Affirmation)

Other Ps pers

Index No. 348 15/07

Papers Numbered

1-3

4-5

h

1 Jpon the foregoing papers, defendant Kingsbrook Jewish Medical Center

(Kingsbrook) moves, pursuant to CPLR 32 12, for summary judgment dismissing plaintiff

Louis Y . Fougere's complaint.

The instant medical malpractice action stems from Kingsbrook's treatment of

plaintifi 's decedent, Justin hougere (decedcnt), bctwL.cn June 6,2006 and his dedth on July

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9,2006 i t the age of 88.’ The gravamen of plaintiffs complaint is that Kingsbrook departed

from standards of good and accepted medical practice in failing to diagnose and properly

treat decedent’s colonic distension, intestinal pseudo-obstruction, ischemic necrosis of the

colon, lower gastrointestinal bleeding and colon perforation. Plaintiff fhther alleges that this

departure was a substantial factor in contributii ig to decedent’s pain, suffering and death.

Cn May 3 1, 2006, while a resident at non-party Rutland Nursing Home (Rutland),

deceden began to experience abdominal distension. The same day, an X ray of decedent’s

abdomei i was performed at Rutland which revealed bowel distension and fecal impactation.

However, no obstruction of the colon was identified. Decedent was then given lactulose for

constipation and Lasix for edema. On June 1, decedent was seen by a Dr. Purcell, whose

notes inc !icated that decedent was suffering from end stage renal disease and that decedent

denied any specific complaints or discomfort. Dr. Purcell’s orders included NPO (nothing

by mout.1) and IV hydration. On June 2,2006, a digital rectal examination was performed

and no feces were found in the rectum. On June 5,2006, decedent was receiving milk of

maFesia as well as a hizh colonic enema to relieve constipation. On June 6, lactulose was

discontinued in favor of milk of magnesia. The same day, decent complained of chest pain

and was admitted to Kingsbrook for evaluation of left-sided chest pain and possible abnormal

EKG.

Prior to June 2006, decedent was treated at Kingsbrook on numerous occasions for AV graft thrombectomy surgeries. However, these treatments are not at issue in the instant action.

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Upon admission to Kingsbrook, decedent reported that he had left upper quadrant

abdomir a1 pain of unclear duration. An abdominal X ray was taken which showed distended

small and large bowel. No air fluid levels were seen although an obstruction could not be

ruled-ou t. On June 7, decedent was seen by Dr. Purcell as well as a gastroenterologist and

both physicians recommended further evaluation and a colonoscopy. On the same day, a CT

Scan of the abdomen and pelvis was conducted to evaluate for a potential intestinal

obstruct'on. The report noted that there was a moderate amount of ascites (excess fluid in

the space between the tissues lining the abdomen and abdominal organs) felt likely to be

caused by cirrhosis of the liver. The report furl her indicated renal atrophy, renal cysts, and

sigmoid diverticula. Finally, the report stated that there was no evidence of a bowel

obstruct'on. On June 8, an ultrasound of decedent's abdomen was performed which

demonsf rated chronic renal disease and a large amount of abdominal ascites. After analyzing

the fluid, it was determined that the ascites was most likely caused by cirrhosis. On June 2 1,

decedent was discharged from Kingsbrook and returned to Rutland.

L :)on his readmittance to Rutland, decedent's abdomen remained distended but he

was able to pass flatus and did not make daily complaints of pain. Rutland's notes indicated

that from June 22 through June 23, decedent had a reasonable appetite and a bowel

moveme nt daily. The decedent received hemodialysis treatments for his renal disease and

underwent a procedure for revision of his AV gnft. On June 25 through June 26'h, decedent

was noted to have a poor appetite but denied pain or discomfort. On June 26'h, decedent was

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transferred from Rutland to Kingsbrook for further evaluation of shortness of breath and

hypoten-ion, but was readmitted to Rutland later that day. A report study done on that day

indicated a small right pleural effusion, a large amount of ascites in the left inguinal canal,

and no t owe1 obstruction.

C n June 30, decedent was transferred to Kingsbrook after having two episodes of

“coffee :round vomiting” and dyspnea. Decedznt’s son (Le., plaintiff) was notified of this

transfer. After being admitted to Kingsbrook, decedent underwent an X ray of the abdomen

which r( vealed a significantly dilated loop of the large bowel. The interpreting physician

indicate1 7 that he could not completely rule out a distal large bowel obstruction or volvulus.

The X rz y also confirmed the presence of ascites. Another CT scan was recommended based

upon thc se findings. On July 2nd, a further X ray of the abdomen was performed which

showed “a large gaseous bubble in the midline which may be related to a large area of

obstruct ‘on.” Thereafter, Dr. Purcell performed a rigid sigmoidoscopy and found no

evidencc of volvulus or obstruction. On July 3rd, an ultrasound of the abdomen was

conductcd which revealed cirrhosis of the liver and a large amount of acites. On this same

day, dec :dent underwent a flexible sigmoidoscopy and colonoscopic decompression (i.e., a

colonosc opy) to try determine the source of the abdominal distension and to remove gas to

improve distension. There was no indication of an obstruction during the colonoscopy but

the proc :dure was unsuccessful reducing the distension. Thereafter, decedent was treated

with IV fluids and a nasogastric (NG) tube was used for decompression. This resulted in a

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large axount of fluid being drained fiom the decedent and significant abdominal

decompression. The progress notes from July 3‘d contain a reference that decedent “may

have 0;:ilvie’s Syndrome,” which is characterized by the appearance of a large bowel

obstruction, but without a mechanical cause (i.e., a “pseudo-obstruction”). At this point,

decedent’s treatment orders included NPO (nothing by mouth), nasogastric decompression,

intravenous Reglan when stable, and a CT of the abdomen when stable.

Decedent’s condition remained unchanged on July 4 through July 5‘h. Decedent

requirec: Dopamine to support his blood pressure and was placed on antibiotics. Follow-up

exams noted persistent abdominal distention and questioned if decedent had a pseudo-

obstrucl ion or mechanical obstruction. A hrther CT scan as well as a barium enema were

recomrr ended if decedent stabilized. On Jut) 6, decedent’s daughter was contacted to

discuss the possibility of a “Do Not Resuscitate” order (DNR) and she indicated that she

needed to discuss the matter with family members. That same day, decedent went into

respiratory distress, then respiratory failure, and required intubation. Later that day,

+--r+r t’s v n s i F c r l thc nNR nrr4i.r.

Decedent’s condition remained largely unchanged from July 7 to July 8th and his

medical notes indicate that he was “too unstable for procedures.” On July 9,2006, decedent

self-ext ibated and was given supplemental oxj’zen by mask. Anesthesia service was called

for an t mergency intubation but decedent went into cardiac arrest and died before this

procedu :e could be carried out. On July 13,2006, an autopsy was performed. The autopsy

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report lit ted 25 final anatomical diagnoses including cirrhosis of the liver, acites, marked

dilation of colon, segmental ischemic mucosal necrosis of the colon, lower GI bleeding,

severe C I ronary artery disease, and end stage renal disease.

By summons and complaint dated September 10,2007, plaintiff brought the instant

action ai ainst Kingsbrook. The complaint cor,iains two causes of action, one for medical

malpraci ice and the other for wrongful death. The medical malpractice claim broadly alleges

that betv een June 6,2006 and July 9,2006, Kingsbrook was negligent in: failing to treat and

care for lecedent in accordance with standards of care and treatment generally accepted in

the community; failure to train and supervise its employees; and in failing to timely or

adequatc ly notify plaintiff of decedent’s injuries or significant changes in decedent’s

conditio I.

A.fter being served with the complaint, Kingsbrook joined issue by serving a verified

answer. Subsequently, plaintiff served a bill of particulars containing numerous allegations

against Kingsbrook, including claims that it failed to properly monitor decedent, failed to

perform proper medical tests and procedures including abdominal X rays, CT Scans, barium

enemas md colonoscopies, failed to minimize decedent’s abdominal discomfort and pain,

and failcd to implement procedures to prevent colon perforation. The bill of particulars

further <llleges that Kingsbrook ignored and/or failed to properly diagnose and treat

deceden ’s signs and symptoms of chronic colon distension, colon perforation, embolized

colon, ai Id fecal impaction. After service of the bill of particulars, the matter proceeded to

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the discc lvery phase. This discovery is now complete and the instant summary judgment

motion i i now before the court.

11 support of its motion for summaryjudgment, Kingsbrook submits an expert medical

affidavit by David A. Greenwald, M.D., a physician licensed to practice medicine in New

York wl o is certified by the National Board of Medical Examiners, the American Board of

Internal Medicine and the American Board of Internal Medicine in Gastroenterology. Dr.

Greenwi .Id states that, based upon his review of decedent’s medical records from May 24,

2000 thr )ugh July 9,2006, as well as plaintiffs deposition testimony and bill of particulars,

it is his I )pinion, within a reasonable degree of medical certainty, that there is no objective

evidencc of any medical malpractice on Kingsbrook’s part with respect to its treatment and

care of ( ecedent. Dr. Greenwald further opines that decedent’s death was unrelated to the

care and treatment he received at Kingsbrook for his abdominal complaints. Finally, Dr.

Greenwiild avers that it is his opinion, within a reasonable degree of medical certainty, that

Kingsbr 3ok and its medical staff at all relevard times acted in accordance with good and

accepted medical practice in its care and treatment of the decedent,

1 1 1 support of these opinions, Dr. Greenwald avers that the allegations contained in

plaintiffs bill of particulars regarding the alleged failure to adequately diagnose and treat

deceden- for his distended abdomen are belied by his medical records. Specifically, Dr.

Greenwdd notes:

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-1 Iingsbrook conducted numerous diagnostic tests in order to determine the

ciuse of decedent's distended colon including X rays, CT Scans, and a

c-donoscopy, all of which confirmed the absence of a mechanical bowel

oJstruction, colonic perforation, or fecal impaction.

-"he decision not to perform a barium enema and additional CT scan upon

d :cedent in July 2006 was entirely appropriate given the fact that he was

h :modynamicaly unstable and required Dopamine to maintain an adequate

b'ood pressure.

-Given the fact that decedent's functional status was severely impaired when

h's abdominal distension was first noted at the end of May, 2006, any surgery

would have been very high risk given his overall poor prognosis.

-Even if decedent had been able to tolerate surgery or a barium enema, such

p ,ocedures would have been of no benefit given decedent's advanced age and

n ultiple comorbidities, including renal failure, cirrhosis, substantial ascites,

a id atherosclerotic heart disease.

-' 'he treatment that was given to decedent was entirely appropriate and proper,

including the use of laxatives and enemas for constipation, and the use of a

nxogastric tube and an attempt at colonoscopic decompression for his

a'Jdomina1 distension.

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-1 hgsbrook properly interpreted the tests given to decedent by diagnosing him with

C gilvie’s Syndrome. At the same time, Kingsbrook properly treated this condition

via NPO, nasogastric decompression, and intravenous Reglan when decedent was

sable.

-1 Lingsbrook’s nursing flow sheets inllicate that decedent was being cared for

r( gularly on every shift including the monitoring of bowel movements, nutritional

a sessments which took into account a potential bowel obstruction, use of IV fluids,

a - well as pain medication.

-1 n July 2006, when decedent was no longer able to turn and position himself, CNA

Accountability Records confirm that he was turned and positioned every two hours.

-J Lingsbrook properly responded to decedent’s episodes of coffee ground vomiting as

evidenced by the fact that this was the very reason for decedent’s admission to the

hospital on June 30,2006.

-1 lingsbrook adequately informed the decedent and his family as to the true nature of

his condition as evidenced by multiple references in the medical records indicatin?

tl at the family was notified and consulted about decedent’s treatment, including an

ir formed consent from decedent’s daughter to perform a flexible sigmoidoscopy and

C I donoscopy as well as a DNR order signed by decedent’s son.

-Decedent’s autopsy report, which lists 25 final anatomical diagnoses, fails to contain

ai iy mention of a bowel obstruction, colon perforation, or fecal impaction.

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In opposition to Kingsbrook’s summary judgment motion, plaintiff submits his own

expert a’firmation by a physician licensed to practice medicine in New York and is board-

certified in Internal Medicine and Gastroenterology. Plaintiff s expert states that, based upon

a review of decedent’s medical records, autopsy report, as well as plaintiffs deposition

transcript and the deposition transcript Kingsbrook’s own witness, he/she is of the opinion,

within a reasonable degree of medical certainty, that Kingsbrook departed fiom the standard

of good and accepted medical practice in its care and treatment of decedent. Plaintiffs

expert fi rther opines that, within a reasonable degree of medical certainty, this departure was

a proximate cause and substantial factor contributing to decedent’s pain and suffering and

death.

In support of these claims, plaintiffs expert maintains that Kingsbrook failed to

adequatc ly address decedent’s intestinal pseudo-obstruction and colon distention, and that

this failure led to decedent’s pain and suffering and ultimate demise, which was secondary

to intestinal ischemia, lower GI bleeding, and peritonitis as a result of colon perforation. As

evidencc- of this claim, plaintiffs expert points to plaintiffs depwition testimony, m well 3“.

the deposition testimony of Mellanie Dela Pena, a nurse at Rutland. Specifically, plaintiffs

expert nc ltes that these witnesses testified that decedent frequently complained of abdominal

pain. According to plaintiffs expert, this pain was the result of Kingsbrook’s improper use

of the la: .ative lactulose, which resulted in increased gas production. In addition, plaintiffs

expert IT aintains that Kingsbrook departed fiom the standard of good and accepted medical

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practice in failing to explore the use of other medical therapies in treating decedent’s colonic

distensic: n and colonic pseudo obstruction, including the use of a rectal tube and surgery. At

the same time, plaintiffs expert avers that Kingsbrook failed to utilize proper pharmacologic

treatmer ts, including erythromycin, cisparide, ; nd neostigmine. In support of this last claim,

plaintiffs expert attaches a clinical review article entitled “New Solutions to an Old Problem,

Acute Colonic Pseudo-Obstruction,” which indicates that these pharmacologic treatments

have bet n effective in treating Acute Colonic Pseudo-Obstruction.

The requisite elements of proof in a medical malpractice action are a deviation or

departure from accepted medical practice and evidence that such departure was a proximate

cause of injury or damage (Viands v Albany Med Ctr., 29 AD3d 982,983 [2006]; Furey v

Kraft, 2’ AD3d 416,417-41 8 [2006]). Thus, a defendant moving for summaryjudgment in

a medic; 1 malpractice action “has the initial burden of establishing, prima facie, either the

absence of any departure from good and accepted medical practice or that any departure was

not the 1 roximate cause of the alleged injuries” (Thurston v Interfaith Med. Ctr., 66 AD3d

999,1001 [2009]). Once a defendant makes ofprirna facie showing of his or her entitlement

to sumrr ary judgment, “the burden shifts to the party opposing the motion for summary

judgmer- t to produce evidentiary proof in admissible form sufficient to establish the existence

of materlal issues of fact which require a trial of the action” (Alvarez v Prospect Hosp., 68

NY2d 3: ‘0, 324 [ 19861). In a medical malpraaice action, this means that “a plaintiff must

submit a physician’s affidavit of merit attesting to a departure from accepted practice and

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containi ig the attesting doctor’s opinion that the defendant’s omissions or departures were

a compe’ent producing cause of the injury” (Domaradzki v Glen Cove Ob/Gyn Assocs., 242

AD2d 2 (2 [ 19971). Furthermore, conclusory s;nd unsupported allegations contained in an

expert a fidavit submitted by a plaintiff do not constitute a basis for denying the summary

judgmert motion (Micciola vSacchi, 36 AD3d 869 [2007]; Li v Yang, 36 AD3d 642 [2007]).

E ere, Kingsbrook’s evidentiary submissions in the form of decedent’s medical records

and Dr. Greenwald’s expert affirmation are sufficient to satisfy its initial burden of

demons1 rating that it did not depart from good and accepted standards of medical practice

and that nothing that it did or failed to do was a Froximate cause of decedent’s death. In this

regard, )r. Greenwald’s affirmation addresses the allegations in plaintiffs pleadings and

demons1 rates that these allegations are not supported by the decedent’s medical records. Dr.

Greenwild’s affirmation further contains a Jztailed analysis of the care provided by

Kingsbrook, and fully discusses why this care was in accord with good and accepted medical

practice Finally, Dr. Greenwald’s affirmation contains an analysis of decedent’s autopsy

report as well as an explanation as to why decedent’s death is not attributahle to

Kingsbr jok’s treatment of decedent. Accordingly, the burden shifts to plaintiff to raise a

triable i: sue of fact in this regard.

Plaintiff has failed to meet this burden. Specifically, plaintiffs expert affirmation

consists largely of vague and conclusory allesations that Kingsbrook failed to provide

deceden’ with “adequate therapy’’ in addressing his abdominal distension. Moreover, when

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plaintiff’s expert does allege specific departures from accepted standards, said allegations

are unsupported by the record. In particular, plaintiffs expert cites the use of the laxative

lactulose as a departure which led to increased pain and suffering. However, the record

indicate; that the use of lactulose was discontinued when decedent was admitted to

Kingsbrook on June 6, and replaced with milk of magnesia. In addition, plaintiffs expert’s

claim re garding decedent’s pain and suffering is not based upon medical records, but rather

is base(- upon plaintiffs own vague deposition testimony that decedent complained of

abdomi la1 pain “in the beginning of 2006.” Moreover, contrary to plaintiffs claim, Ms.

Dela Pc na’s deposition testimony does not indicate that decedent’s pain symptoms were

ignored, or that these symptoms were somehow connected to the use of lactulose.

Plaintiffs expert’s claim that Kingsbrook departed from accepted standards in failing

to consider alternative medical therapies is also insufficient to raise a triable issue of fact.

In this I :gard, plaintiffs expert avers that Kingsbrook should have considered performing

a cecostomy. However, in making this assertion, plaintiffs expert fails to address, let alone

refutr, 3. Grccnwald’s conclusion that dccdcnt could not tolcratc surgcry gil-i-n his

advanct d age and multiple morbidities, including renal failure, cirrhosis, ascites, and heart

disease.

Plaintiffs expert’s claim that Kingsbrook departed from accepted standards in failing

to use ‘he pharmacologic treatments erythromycin, cisparide, and neostigmine is also

insufficient to raise any triable issues of fact. In this regard, the clinical review article which

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the expc rt cites in support of this claim specifically states that “[e]rythromycin and cisapride

are not s kong colonic promotility agents limitin 1 their usehlness in [Acute Colonic Pseudo-

Obstruc’ion] .” Moreover, although the clinical review indicates that neostigmine is effective

in treating ACPO, it cautions that “[c]ontraindications to neosti,gnine include . . . renal

failure.” Here, it is undisputed that decedent was in the end stages of renal failure. Further,

the clinical review states that neostigmine should not be used where mechanical obstruction

has not been excluded. Here, decedent’s mcdical records indicate that mechanical

obstrucf .on could not be ruled out until shortly before his death. Plaintiffs expert ignores

these limiting factors.

Finally, even assuming that plaintiffs expert affidavit were sufficient to raise issues

of fact i ’ s to whether Kingsbrook departed from accepted medical standards in failing to

perform surgery and/or failing to administer certain pharmacologic treatments, there is

nothing in the record to support the expert’s conclusory claim that these departures

contribb ted to decedent’s death. In this regard, decedent’s autopsy report lists 25 separate

anatomical diamoses, none of which involve a pseudo blockage of the colon.2 Similmly,

plaintiff’s expert fails to explain how the performance of these treatments would have altered

the outc, )me in this case which, as noted above, involved an 88 year-old individual suffering

from nul nerous maladies including renal failure, cirrhosis of the liver, substantial ascites, and

atherosclerotic heart disease.

*“he court also notes that, although plaintiffs expert maintains that decedent sustained a colonic perforation, the autopsy report fails to substantiate this claim.

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L xcordingly, Kingsbrook’s motion for summary judgment dismissing plaintiffs

complai nt is granted.

1 his constitutes the decision, order, and judgment of the court.

E N T E R ,

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