| Daugharty v Marshall |
| 2009 NY Slip Op 01895 [60 AD3d 1219] |
| March 19, 2009 |
| Appellate Division, Third Department |
| Patricia A. Daugharty, Individually and as Executor of James P.Gleason, Deceased, Appellant, v Robert Marshall et al., Respondents, et al.,Defendants. |
—[*1] Thuillez, Ford, Gold, Butler & Young, Albany (Debra J. Young of counsel), forrespondents.
Malone Jr., J. Appeal from that part of an order of the Supreme Court (Ceresia, Jr., J.),entered October 5, 2007 in Rensselaer County, which granted a motion by defendants RobertMarshall and Partners in Family Medicine for summary judgment dismissing the complaintagainst them.
Defendant Robert Marshall, a board-certified family practitioner, treated James P. Gleason(hereinafter decedent) from 1988 through 2001 for various conditions, including hypertension,hypertension cardiomyopathy, coronary artery disease, congestive heart failure, chronicobstructive pulmonary disease, diabetes, severe arthritis, gallstones and prostrate problems.Decedent also received treatment for some of these conditions from Jorge Constantino, aboard-certified cardiologist. In June 2000, during a scheduled visit, decedent complained toMarshall that, over the past year, he had experienced four or five episodes of abdominal pain,which developed into his chest and lasted approximately 15 minutes. Noting that decedent'sabdomen was "soft" and "non-tender," Marshall believed that decedent was experiencing a"[p]ossible increase in his cardiomyopathy with possible ischemic disease," and orderedlaboratory tests, which were normal. Over the next year and a half, decedent [*2]occasionally reported similar pains to Marshall, as well as toConstantino, during routine or scheduled visits, and Marshall continued to note negative findingsupon physical examination, as well as negative laboratory results. Marshall last treated decedentin October 2001, at which time decedent reported feeling good and Marshall continued hisassessment that decedent's intermittent abdominal pain was likely due to mesentericischemia.[FN1]
In January 2002, decedent presented to an emergency room with a four-day history ofshortness of breath, nausea, vomiting and excruciating abdominal pain and distension.Laboratory results reflected that decedent had elevated liver enzyme levels, and an exploratorylaparotomy performed the next day revealed "[e]xtensive adhesions and inflammation, possiblyfrom a perforation that was not new but a few days old," as well as a "[l]arge common [bile] ductstone." He subsequently developed sepsis, suffered multiorgan failure and ultimately died inhospice two months later.
Plaintiff, decedent's daughter, commenced this wrongful death action, individually and as theexecutor of decedent's estate, asserting claims of medical malpractice and negligence againstMarshall and Marshall's medical practice, defendant Partners in Family Medicine (hereinaftercollectively referred to as defendants), as well as Constantino and his medical practice.Specifically, plaintiff alleged, among other things, that defendants failed to properly diagnoseand treat decedent's complaints of abdominal pain and that such failure ultimately resulted indecedent's death. Following discovery, defendants and the Constantino defendants each movedfor summary judgment dismissing the complaint against them. Supreme Court granted themotions and plaintiff now appeals from that part of the order that granted defendants'motion.[FN2]
Initially, to the extent that plaintiff challenges defendants' prima facie showing of entitlementto judgment as a matter of law, we find that defendants' submissions were sufficient to meet theirinitial burden as proponents of the summary judgment motion. The burden then shifted toplaintiff to show, "through competent expert medical opinion evidence, both a deviation from theaccepted standard of care and that the departure was a proximate cause of decedent's death" (Bell v Ellis Hosp., 50 AD3d 1240,1241 [2008]; see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]). In our view,plaintiff raised a triable issue of fact regarding Marshall's alleged deviation from acceptedstandards of medical care and provided a sufficient link between the deviation and the harm todecedent (see Flower v Noonan, 271 AD2d 825, 826 [2000]).
In his affidavit in opposition to defendants' motion, plaintiff's expert, Maxwell M. Chait, alicensed physician with board certifications in internal medicine and gastroenterology, assertedthat Marshall's continued reliance upon his initial tentative diagnosis of ischemia, withoutengaging in a differential diagnosis to consider other causes for decedent's complaints, was adeviation from good and accepted medical practice. Based upon his review of the records and[*3]testimony, Chait found no evidence that Marshall hadconsidered any other diagnoses. Moreover, Chait indicated that, since mesenteric ischemia is apotentially life-threatening disease, "[g]ood and accepted practice" requires referral to agastroenterologist. Chait's opinion did not, as defendants assert, ignore the physical examinationsperformed by Marshall and the laboratory tests he ordered. Rather, he pointed out that such testswere "of limited value" in diagnosing the ailments from which decedent suffered. While Chaitdid not set forth in detail the particular tests that Marshall should have performed, he opined thatthe failure to make a referral to a gastroenterologist, in and of itself, represented a deviation fromthe applicable standard of care.
As further evidence of Marshall's negligence, Chait pointed out that Marshall should nothave relied upon decedent's claims that his pain was relieved by nitroglycerin, because thatmedication can relieve spasms including those caused by bile duct stones. Chait further notedthat decedent's pains were relieved by eating, while mesenteric ischemia is typically exacerbatedby eating. In addition, Chait opined that the apparent waxing and waning of decedent's painshould have been recognized as typical of gastrointestinal problems. Chait also pointed toMarshall's failure to attach clinical significance to decedent's sudden loss of interest in drinkingas negligence.
Chait opined, further, that Marshall was negligent in assuming that decedent's cardiologistwould take on the responsibility of referring decedent to a gastroenterologist to address hisabdominal pains and following up with such referral, as those matters are not part of the duties ofa cardiologist and fall squarely within the responsibilities of the primary care physician. He alsoindicated that Marshall's repeated failures to heed the warnings in the cardiologist's notes and indecedent's own self-diagnosis of gall bladder problems constituted malpractice. Ultimately, Chaitopined that the large size of decedent's bile duct stone and the severity of his ulcer suggest thatdecedent was suffering from these problems from 2000 or 2001 and, given decedent's medicalhistory and risk factors, Marshall's failure to properly diagnose the problems and refer decedentto a gastroenterologist led to decedent's preventable death.
Based upon the foregoing, we find that there is sufficient evidentiary support for Chait'sconclusions—that Marshall deviated from the accepted standards of medical care and thatsuch deviation was a proximate cause of decedent's death—to satisfy plaintiff's burden andto defeat defendants' summary judgment motion (see Flower v Noonan, 271 AD2d at826; see generally Hranek v UnitedMethodist Homes of Wyo. Conference, 27 AD3d 879, 880-881 [2006]). Accordingly,we reverse that part of Supreme Court's order as granted defendants' motion.
Cardona, P.J., Kane, Kavanagh and Stein, JJ., concur. Ordered that the order is modified, onthe law, with costs to plaintiff, by reversing so much thereof as granted the motion of defendantsRobert Marshall and Partners in Family Medicine; said motion denied; and, as so modified,affirmed. [See 2007 NY Slip Op 33162(U).]
Footnote 1: Mesenteric ischemia is acondition categorized by decreased blood flow to the intestines.
Footnote 2: Subsequent to the entry ofSupreme Court's order, plaintiff stipulated to the discontinuance of this action, with prejudice,against the Constantino defendants.