ORDER SUPREME COURT OF THE STATE OF NEW YORK Present:...
Transcript of ORDER SUPREME COURT OF THE STATE OF NEW YORK Present:...
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ORDERSUPREME COURT OF THE STATE OF NEW YORK
Present: BON. TAMMY S. ROBBINS, Acting JusticeTRIAL/lAS , PART 47
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ROSEMARIE DISPIGNO and VITO DISPIGNO
Plaintiffs- against - IndeJ( No. 7209/04
Motion Seq. 001Motion submission: 4/10/06
RENA TO B. BERROY A , LONG ISLAND SURGICALSPECIALISTS, P. , EUGENE W. SEGALL, and
ST. FRANCIS HOSPITAL
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Defendants RENATO B. BERROYA , LONG ISLAND SURGICAL SPECIALISTS,
EUGENE W. SEGALL , and ST. FRANCIS HOSPITAL has moved this court, pursuant to CPLR g
3212 for an order granting summary judgment to defendants. Plaintiffs have submitted an
Affrmation in Opposition. This decision references the affrmation of Eric S. Strober (herein
Strober Aff.) and the affrmation of Robert B. Jackson (herein Jackson Aff.
This is a personal injury action sounding in medical malpractice. The plaintiff Rosemarie
Dispigno (referred to herein as "the plaintiff') had a medical history of congestive heart failure
uncontrolled diabetes , spinal stenosis, hypertension, hypothyroidism , peripheral neuropathy,
peripheral vascular disease and hypercholesterolemia. In August of 1999 , she underwent a triple
bypass at St. Francis Hospital. In April of 2000 , the plaintiff underwent cardiac catheterization at St.
Francis Hospital. On July 6 , 2000 , the plaintiff underwent a left-sided carotid (a major artery in the
neck that supplies blood to the brain) endarterectomy (a surgical procedure designed to clean out
material occluding an artery, done on the carotid, to restore normal blood flow). Defendant Dr.
Renato Berroya performed the surgery at defendant St. Francis Hospital. In December of 2000
January of2001 and February of2001 , the plaintiff received steroid injections for spinal stenosis. In
November of2001 , the plaintiff underwent a second carotid endarterectomy, this time on her right
side, performed by Dr. Renato Berroya at St. Francis Hospital. Dr. Eugene Segall performed
general anesthesia.
As a result of the second carotid endarterectomy, performed on the right side ("the surgery
plaintiff alleges that she sustained numerous injuries. On May 24 , 2004 , plaintiff commenced this
medical malpractice action by fiing and serving upon defendant her Summons and Complaint
alleging that the named defendants were negligent in her care and treatment, that there was a lack of
informed consent, and that plaintiffs husband suffered loss of services. Plaintiff claims all these
actions or omissions of defendants resulted in her sustaining injury. It is not disputed that plaintiff
was known to be allergic to penicilln at the time the surgery was performed.
Defendants ' Motion - The Administration of Kefzol
Defendants now move for summary judgment alleging that Dr. Segall was not negligent
when he administered the antibiotic Kefzol to the plaintiff. Defendants provide the affdavit of Dr.
Bluth , a board certified anesthesiologist who states that the administration of Kefzol was not a
departure from good and accepted practice. Defendants contend that even if the plaintiff had an
allergic reaction to Kefzol , this did not cause the claimed injuries.
Defendants ' Motion - The Carotid Endarterectomy
Additionally, defendants argue that plaintiffs injuries were not the result of the carotid
endarterectomy. Defendants offer the affdavits of Dr. Vishnubhakat, a neurologist, and Dr.
Myssiorek, an ENT. Dr. Myssiorek states that plaintiffs complaints following the second carotid
endarterectomy are not consistent with an injury to the hypoglossal nerve or an allergic reaction. Dr.
Myssiorek states that plaintiffs complaints and symptoms are consistent with an organic process
unrelated to and predating her surgery. Dr. Vishnubhakat states that the plaintiff does not suffer
from the injuries claimed to have been caused by the surgery. He states that the plaintiffs
neurological eJ(amination post operatively was within normal limits, and there was no evidence of
adverse neurological or other adverse sequelae attributable to the surgery.
Defendants ' Motion - Informed Consent
As to plaintiffs lack of informed consent claim, defendants maintain that according to the
affidavit of Dr. Vishnubhakat, Dr. Berroya communicated to the plaintiff the reasonably foreseeable
risks, benefits and alternatives that a reasonable physician would disclose prior to carotid
endarterectomy surgery. Defendants state that the plaintiff herself testified that she readily accepted
the risks of a stroke, brain damage and death in consenting to the surgery and that there was no
alternative to the surgery.
Plaintiffs ' Opposition- The Administration of Kefzol
Plaintiffs argue that the plaintiff Rosemarie Dispigno suffered injury as a result of the
administration of Kefzol. First, plaintiffs claim that according to the defendants own testimony,
there was a departure from the accepted standards of care by administering the Kefzol. Plaintiffs
state that Dr. Segall testified that he was aware that plaintiff was allergic to penicilin, that
individuals with such allergies can have cross-over reactions to Kefzol, and that he would not have
given the plaintiff Kefzol without first discussing it with Dr. Berroya. However, Dr. Segall testified
that he could not recall having a discussion with Dr. Berroya or whose idea it was to administer the
Kefzol. Dr. Berroya documented plaintiffs allergic reaction. Plaintiffs argue that Dr. Berroya had
an affrmative obligation to be aware of and to approve the medications given to the patient.
Secondly, plaintiffs contend that although defendants argue that the allergic reaction was
not due to Kefzol , the signs and symptoms ofplaintiffs allergic reaction were documented in the
records of St. Francis Hospital. Plaintiffs contend that defendants have not offered any alternative
causes for the signs or symptoms of plaintiff s allergic reaction. Plaintiffs refer to defendants
eJ(pert affdavit of Dr. Bluth who states that even ifthere was an allergic reaction, it would have
been a transient event with no permanent adverse medical effects. Plaintiffs contend that this
statement merely points to the duration or the severity ofthe injuries sustained , where the issue is
whether the plaintiff sustained any injury as a result of the allergic reaction. Plaintiffs argue that Dr.
Bluth' s statement directly contradicts defendants ' grounds for summary judgment in that defendants
contend that the plaintiff did not suffer any injury as a result of the Kefzol.
NeJ(t, plaintiffs refer to the defendants ' eJ(pert Dr. Myssiorek who states that the injuries
sustained by the plaintiff are not the result of receiving Kefzol but rather are due to an underlying
disease pathology which predated the surgery. There are no medical records submitted in support of
this theory and there are no reports from medical practitioners diagnosing or suspecting a diagnosis
of this underlying disease pathology. Additionally, plaintiffs observe that the notes of Dr. Mra, an
ENT who evaluated plaintiff in the hospital three days after the surgery, indicates that there was an
anterior tongue edema. Dr. Mra also noted that she suspected the cause of the patient's complaints
to be an allergic reaction to Kefzol. Plaintiffs conclude that the affdavits of their eJ(perts Dr. Katz
and Dr. Schwartz along with the medical records, Dr. Mra s observations, and the defendants ' own
testimony all support the finding that the defendants depared from the accepted standards of care by
administering Kefzol which resulted in injury to the plaintiff.
Plaintiffs ' Opposition-The Carotid Endarterectomy
Plaintiffs ' maintain that the patient' s symptoms of slurred speech and diffculty swallowing
as noted by St. Francis Hospital records after the surgery is consistent with a cranial nerve XII
injury. Plaintiffs ' eJ(pert claims that Dr. Berroya made numerous departures from accepted
standards of practice in performing plaintiffs surgery (see Jackson Aff. EJ(hibit L). Dr. Schwartz
finds that Dr. Berroya failed to connect the patient to an electroencephalograph while she was under
general anesthesia, failed to have a second surgeon trained in the procedure present or available
failed to have the nursing staff place folded towels between the patient' s shoulder blades to faciltate
eJ(tension of the neck in preparation for the first incision , failed to hypereJ(tend the patient' s neck to
facilitate eJ(posure of the carotid artery, failed to perform preoperative angiography to determine the
relationship ofthe eJ(ternal and internal carotid arteries, or the location of the carotid bifurcation
failed to identify and mobilize the hypoglossal nerve , failed to visualize and palpate the carotid
artery, failed to draw the proposed arteriotomy line along the vessel, failed to document the surgery
done to obtain the saphenous vein to create a vein patch, and failed to test the patency ofthe repair
with a Doppler (Id.
).
Plaintiffs contend that Dr. Berrayo failed to fully identify structures
particularly the cranial nerve XII. As a result he blindly operated and severed the hypoglossal nerve
during the surgery causing permanent injury to plaintiff.
Plaintiffs ' Opposition- Informed Consent
Dr. Berrayo testified as follows:
When you start eJ(posing the carotid artery,you see the hypoglossal nerve. If it' s a normallocation , you just kind of point it out to yourassistants, don t go there , it's right there.Usually it's eJ(actly where it is. It's very unusualif it's located elsewhere.. .It usually crosses overthe eJ(ternal carotid artery ... it' s way out of yourfield at that point
(Strober Aff. EJ(hibit E). Plaintiffs ' eJ(pert Dr. Schwartz states that the hypoglossal nerve is well
within the operative field when surgery of this type is performed (see Jackson Aff. Exhibit L). Dr.
Schwartz contends that his assertion is supported by Dr. Berroya s own statement that he visualizes
the nerve during his exposure of the carotid artery (Id.
).
As well , Dr. Schwartz states that his view is
supported by the anatomical literature which repeatedly and consistently describe cranial nerve XII
as traveling in close contiguity with the internal carotid artery (Id.
).
Plaintiffs ' contend that Dr.
Berrayo could not have fully informed the plaintiff of the risks of the operation , specifically the risk
of damage to her hypoglossal nerve, since he did not feel that the hypoglossal nerve was within the
operative field.
Additionally, plaintiffs argue that Dr. Berroya failed to adequately discuss alternatives to the
surgery performed. Although he told the plaintiff about the alternative of using a stent, he also
stated that this procedure was stil eJ(perimental and that his preference was the surgery which was
actually performed (see Strober AffExhibit E). Plaintiffs argue that this form of disclosure failed to
comply with the guidelines contemplated by g 2805-d ofthe Public Health Law.
Decision
The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material
issues of fact from the case (Winegradv New York University Medical Center 64 NY2d 851
citing Zuckerman City of New York 49 NY2d 557). Failure to make such showing
requires denial of the motion, regardless of the suffciency of the opposing papers (Id.
).
The court
must view the evidence in the light most favorable to the non-moving party and must give the non-
moving party the benefit of all reasonable inferences which can be drawn from the evidence (see
Negri Stop and Shop, 65 NY2d 625). "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
proJ(imate cause of injury or damage (Wicksman Nassau County Health Care Corp., et ai. , 27
AD3d 644 citing Anderson Lamaute 306 AD2d 232; DiMitri Monsouri 302 AD2d 420;
Holbrook United Hosp. Med. Cfr. 248 AD2d 358).
The Administration of Kefzol
In support of their motion, defendants submitted the affdavit of Dr. Bluth who states that the
use ofKefzol was not a departure from accepted standards of anesthesia practice
(see Strober Aff.
Exhibit G). Dr. Bluth eJ(plains that the plaintiff was documented to have an allergy to penicilin and
that it is claimed that Dr. Segall should not have used Kefzol, a prophylactic infection control during
surgery (Id.
).
Dr. Bluth eJ(plains that this assertion is incorrect. He affrms that under appropriate
monitoring, which was done in this case, and when given in the appropriate dosage, as was done in
this case, it is not a departure from accepted standards of anesthesia practice (Id.
).
Dr. Bluth states
that Dr. Segall titrated the dose and maintained careful monitoring of the plaintiff at all times during
the administration of the Kefzol with no adverse reactions (Id.
).
Dr. Bluth states that his review of
the medical records indicate that there were no resulting adverse reactions and the onset of swellng
of the tongue is not indicative of a reaction to the intra-operative antibiotic Kefzol
(Id.
).
Defendants
have made a prima facie showing through their eJ(pert's affdavit entitling them to summary
judgment as a matter of law with regard to the administration of Kefzol.
In medical malpractice actions , a plaintiff opposing a defendant physician s summary
judgment motion must submit material or evidentiary facts to rebut the physicians prima facie
showing that he or she was not negligent in treating the plaintiff'
(see Jonassen Staten Island
University Hospital 22 AD3d 805 quoting, DiMitri Monsouri 302 AD2d 420). In opposition to
the motion, plaintiffs submit the affdavits of two eJ(pert, Dr. Katz and Dr. Schwartz. Dr. Katz
states that the plaintiff suffered an allergic reaction "due to the administration of a penicilin cross
sensitive antibiotic, Kefzol , which was given despite Mrs. Dispigno s sensitivity or allergenicity to
penicilin (see Jackson Aff. EJ(hibit K). Dr. Schwartz, who did not eJ(amine the patient, refers to
the eJ(aminations of plaintiff done by other doctors and experts and the medical records of plaintiff
wherein the patient was noted to have an allergic reaction that caused acute angioedema as well as
swellng of the tongue, the mucous membranes of the nose, mouth, and throat, and the face. Dr.
Schwartz opines that Kefzol was contraindicated for the plaintiff and that the administration of
Kefzol caused her to suffer injury (Id. at EJ(hibit L). Dr. Schwartz states that it is not standard
practice to give an antibiotic during a carotid endarterectomy.
In support of their opposition, plaintiffs refer to the deposition testimony of Dr. Segall and
Dr. Berrayo. Both doctors admit that before administering the Kefzol they were aware that the
plaintiff was allergic to penicilln (see Strober Aff. EJ(hibit E , EJ(hibit F). Dr Segall admitted that he
was aware that individuals who are allergic to penicilln can also have a similar allergic reaction to
Kefzol (Id.
).
Additionally, Dr. Segall indicated that Vancomycin is an antibiotic frequently used
which is not contraindicated for individuals who have penicillin allergies (see Strober Aff. Exhibit
F). Dr. Segall also stated that he routinely discusses the administration of the antibiotic with the
surgeon (Id.
The expert opinions offered by the parties differ as to whether the Kefzol was
contraindicated. "When eJ(perts offer conficting opinions, a credibilty question is presented
requiring ajur s resolution (see Shields v. Bavtidy, 11 AD3d 671 citing Barbuto v. Winthrop
Univ. Hosp. 305 AD2d 623; Fotinas v. Westchester County Med. Ctr. 300 AD2d 437). This
court finds that factual issues exist as to whether the administration of Kefzol was contraindicated
and whether the administration of the Kefzol caused injury to the plaintiff (see Rivera Macaluso
209 AD2d 679). Defendants ' motion for summary judgment as to the claim arising out of the
administration ofKefzol is denied.
The Carotid Endarterectomy
In support of their motion, defendants have submitted the eJ(pert affdavit of Dr.
Vishnubhakat who is board certified in neurology with a subcertification in neurophysiology (see
Strober Aff. EJ(hibit I). After a full neurological eJ(amination of the plaintiff relative to her
complaints and after a review of the medical records, Dr. Vishnubhakat concludes that the plaintiff
is not suffering from any sequelae from her carotid endarterectomy surgery and that her complaints
are not consistent with trauma to the hypoglossal nerve or an allergic reaction to an antibiotic (Id.).
Defendants also offer the affdavit of Dr. Myssiorek, board certified in Otolaryngology, who
eJ(amined the plaintiff, took her medical history, and reviewed all of her medical records (see
Strober Aff. EJ(hibit H). Dr. Myssiorek states that the signs and symptoms about which the plaintiff
complains are not related to the surgery (lei. More significantly, Dr. Myssiorek continues , the
symptoms are continuing to worsen over time and are not consistent with intraoperative trauma to
the hypoglossal nerve or an allergic reaction to antibiotic (Id.
).
The symptoms, he concludes, are a
result of an underlying disease pathology that predated the surgery giving rise to this litigation (!d.
Plaintiffs contend that Dr. Myssiorek' s finding of other disease pathology is not supported with
substantial evidence. However, Dr. Myssiorek both eJ(amined the plaintiff and took her medical
history; an expert' s conclusions may be based on an eJ(amination of the patient or on the patient'
medical history (see Davis Pimm 228 AD2d 883). As to the carotid endarterectomy claim and the
resulting hypoglossal nerve injury, defendants have presented a prima facie showing through their
eJ(pert physicians ' affdavits entitling them to summary judgment as a matter oflaw.
In opposition , plaintiffs ' offer the affdavits of Dr. Katz and Dr. Schwartz. Dr. Katz states
that the plaintiff was admitted to South Nassau Communities Hospital within a month of the surgery
with what was diagnosed as hypoglossal nerve injury with dysarthria related to the right
endarterectomy (lei. Dr. Katz concludes that with a reasonable degree of medical certainty, the
plaintiffs decreased mobilty, decreased strength of the tongue, sensitivity on the right greater than
the left, and the lateralization of the tongue to the right side on projection are the result of a
hypoglossal nerve impairment sustained during the right endarterectomy (see Jackson Aff. EJ(hibit
K). Dr. Katz s affdavit is insuffcient to rebut defendants ' prima facie showing, as he does not offer
any opinion as to the surgical procedures performed by Dr. Berrayo and, he does not offer an
opinion as to whether the procedures employed by Dr. Berrayo deviated from the accepted standards
of medical practice in his treatment of the plaintiff.
Plaintiffs ' other eJ(pert , Dr. Schwartz describes numerous deviations made by Dr. Berrayo in
conducting the surgery (see Jackson Aff. EJ(hibit L). Specifically, Dr. Schwartz states that Dr.
Berrayo failed to connect the patient to an electroencephalograph, failed to have a second surgeon
trained in the procedure present or available , failed to hypereJ(tend the patient' s neck to faciltate
exposure of the carotid artery, failed to perform preoperative angiography, failed to identify and
mobilize the hypoglossal nerve, failed to visualize and palpate the carotid artery, failed to draw the
proposed arteriotomy line along the vessel , failed to document the surgery done to obtain the
saphenous vein to create a vein patch , failed to test the patency of the repair with a Doppler and
failed to fully identify structures (Id.
).
Although not all ofthe claimed departures can be deemed to
have proJ(imately caused plaintiffs injuries , Dr. Schwartz does opine that Dr. Berrayo failed to fully
identify structures, particularly the cranial nerve XII which resulted in him blindly operating and
severing the hypoglossal nerve causing permanent injury to plaintiff (ld.
Defendants argue that Dr. Schwartz is an internist, not a vascular surgeon and therefore he is
not qualified to give an opinion and critique the procedure used by Dr. Berroya. Defendants also
criticize plaintiffs ' use of Dr. Katz to claim a nerve injury. In Erbstein Savasatit, supra defendant
moved for summary judgment and submitted the affidavit of a general surgeon which stated that he
did not deviate from good and accepted standards of medical practice in his treatment of the
patient/decedent. In response, plaintiffs submitted an eJ(pert affidavit of a pathologist. The Supreme
Court denied the defendant' s motion based on a finding that the expert affdavits had raised a triable
issue of fact as to whether the defendant had departed from the proper standards of medical care
(Id.
).
The Second Department found that the "contention that the plaintiffs eJ(pert was unqualified
to give an eJ(pert opinion on the standard of care of a general surgeon merely because he was a
pathologist is without merit"(ld.). The court held that
Once a medical eJ(pert has established his or herknowledge of the relevant standards of care, heneed not be a specialist in the particular area atissue to offer an opinion. Any lack of skil orexpertise goes to the weight of his or her opinionas evidence , not its admissibility
(ld. citing Adamy Ziriakus, 92 NY2d 396; Julien Physician s Hosp. 231 AD2d 678; Ariola
Long, 197 AD2d 605). In the case before this court, the plaintiffs ' eJ(pert , Dr. Schwartz, affrms that
he has been in active practice of Internal Medicine for more than thirty five years , he is eJ(perienced
in hospital risk management and in the diagnosis and treatment of patient's with cranial nerve
impairments (see Jackson Aff. EJ(hibit L). Given the fact that " (t)he law is settled that a physician
need not be a specialist in a particular field in order to qualify as a medical expert" and render an
opinion, defendants ' arguments as to plaintiffs ' expert is without merit (see Bodensiek Schwartz
292 AD2d 411 citing Erbstein Savasatit, supra; Gordon Tishman Constr. Corp. 264 AD2d 499;
Julien Physician s Hosp. , supra). Accordingly, plaintiffs have met their burden of rebutting
defendants ' prima facie showing and summary judgment as to the malpractice claim resulting from
the carotid endarterectomy is denied.
Informed Consent
A Defendant is required to present evidence "demonstrating that the plaintiff signed a
consent form after being informed of the surgical procedure and the alternatives, as well as the
reasonably foreseeable risks and benefits (Ericson v. Palleschi 2005 WL 3193694 citing Bernard
v. Block 176 A.D.2d 843). Defendants have established that Dr. Berroya provided plaintiff with
suffcient information as to the available alternative to the procedure such that her consent can be
said to have been informed (Velez Goldenberg, - - - NYS2d - - - , 2006 WL 1343615 citing Eppel
Fredericks 203 AD2d 152). The only alternative available at the time was a stent procedure with
which Dr. Berroya was very familar since he was one of the directors of the two eJ(perimental
. programs being conducted in the United States and Canada (see Strober AffEJ(hibit E).
Furthermore, plaintiff had undergone this surgery before and she admitted that both times she was
informed of the risk of stroke.
Plaintiffs argue that Dr. Berroya failed to disclose all the material risks which a reasonable
medical practitioner "under similar circumstances would have disclosed , in a manner permitting (the
plaintiff) to make a knowledgeable evaluation (see Davis Nassau Ophthalmic Services, P. e., 232
AD2d 358). To refute defendants ' prima facie showing as to the informed consent claim , the
plaintiff is required to submit an affirmation from a medical eJ(pert (Ericson v. Palleschi, supra
citing Wilson v. Buffa 294 A.D2d 357). Plaintiffs have provided expert medical testimony alleging
that the consent was qualitatively insuffcient based on Dr. Berroya s view that the hypoglossal
nerve was not within the operating field. Plaintiffs claims that because of Dr.Berrayo s view with
regard to the hypoglossal nerve, he did not inform the plaintiff of all of the risks involved
specifically the risk to the hypoglossal nerve. The plaintiff herself testified that Dr. Berrayo told her
about the risks
, "
a lot of them" including a stroke (see Strober Aff. EJ(hibit D). Additionally, the
plaintiff stated that knowing that there was a risk of a stroke , she went forward with the surgery
because "she had to (ld.
).
Moreover, plaintiff testified that Dr. Berrayo gave the plaintiff written
material regarding the surgery and the risks. The record before this court indicates that Dr. Berrayo
disclosed the material risks, benefits, and alternatives to the surgery in a manner permitting the
plaintiff to make a knowledgeable evaluation (see Public Health Law g 2805-d).
Plaintiffs additionally claim that because Dr. Berrayo stated to the plaintiff which procedure
he preferred , she was not permitted to make a knowledgeable evaluation. However, Dr. Berrayo had
substantial medical reasons for his preference. Providing the plaintiff with his preference was in fact
providing her with knowledge to make an informed decision. The logical conclusion ofplaintiffs
argument would result in patients being given information by doctors without any assistance in
evaluating that information. Dr. Berrayo testified that he indicated his preference for the open
procedure (the surgery) as opposed to the stent procedure "(b)ecause the stent today is stil
experimental procedure and the stroke rate is higher than the open technique , and we don t even
know the fate of the stent in the carotid artery over a long haul since the procedure has only been
done a few years, as opposed to open procedure which has been studied since 1951 , so it has a long
track record (see Strober Aff. EJ(hibit E). Dr. Berrayo s statements to the plaintiff complied with
what a reasonable medical practitioner under similar circumstances would have disclosed (see
Public Health Law g 2805-d). Defendants ' motion for summary judgment as to the informed
consent claim is granted.
It is so Ordered.
Dated: June 7 , 2006
EN'e. '\ 3 1
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ERK' S OFF\Ce,