| Helfer v Chapin |
| 2012 NY Slip Op 05057 [96 AD3d 1270] |
| June 21, 2012 |
| Appellate Division, Third Department |
| Edward Helfer et al., Appellants, v Norman A. Chapin et al.,Respondents. |
—[*1] Carter, Conboy, Case, Blackmore, Maloney & Laird, P.C., Albany (William D. Yoquinto ofcounsel), for Norman A. Chapin and another, respondents. Maynard, O'Connor, Smith & Catalinotto, L.L.P., Albany (Robert A. Rausch of counsel), forKenneth Schnide and another, respondents.
Spain, J. Appeals (1) from an order of the Supreme Court (Hummel, J.), entered June 27,2011 in Columbia County, which granted defendants' motions for summary judgment dismissingthe complaint, and (2) from the judgment entered thereon.
Plaintiff Edward Helfer (hereinafter plaintiff) began experiencing symptoms that includeddizziness, neck pain, headache and nausea while at home at approximately 8:34 a.m. onSaturday, December 13, 2003. The 55-year-old plaintiff was thereafter transported by ambulanceto the emergency room at defendant Columbia Memorial Hospital (hereinafter CMH), where hearrived at approximately 9:34 a.m. Shortly after arrival, plaintiff was examined by defendantNorman A. Chapin, the emergency department director, who formed an initial diagnosis thatincluded possible stroke, possible peripheral vertigo and possible vertebral artery dissection(hereinafter VAD)—a tear in the wall of one of the arteries in the back of theneck—and ordered, among other things, a CT scan. Plaintiff's CT scan was not performeduntil approximately 11:40 a.m. and Chapin reviewed the results at 12:57 p.m., which heinterpreted as normal with no sign of acute stroke or hemorrhage. Thereafter, at 1:09 p.m.,Chapin [*2]transferred the care of plaintiff to defendant KennethSchnide, a physician employed by CMH. In his capacity as a hospitalist, Schnide conducted aninitial assessment of plaintiff between 1:45 p.m. and 2:45 p.m. and ordered an MRI and aneurological consultation. At approximately 5:00 p.m., a neurologist examined plaintiff andconcurred in a differential diagnosis that included a possible VAD, as well as a course oftreatment that included the MRI, which could not be performed locally until Monday.
The following day, upon reexamination by the neurologist, it was determined that plaintiff'scondition had worsened overnight and arrangements were made to transport him to AlbanyMedical Center. After transfer, plaintiff was found to have suffered a cerebellar stroke; thereafter,he suffered intracranial hemorrhage apparently following complications from the placement of aventriculostomy catheter. Plaintiff's condition required a lengthy hospital stay and he was latertransferred to a rehabilitation center. As a result of the incident, plaintiff suffered lastingneurological deficits.
In May 2006, plaintiff and his wife, derivatively, commenced this medical malpractice actionagainst, as relevant to this appeal, Chapin, Schnide, CMH and Columbia Emergency Services,P.C., as Chapin's employer. The gravamen of plaintiffs' action is that Chapin committedmalpractice by failing to timely administer tissue plasminogen activator (hereinafter TPA), amedication used to dissolve blood clots in patients suffering from certain types of strokes, butwhich can be dangerous if a patient's condition includes bleeding. Plaintiffs contend that the useof TPA, which must be administered within three hours of the onset of stroke symptoms, wouldhave had the potential to reduce or eliminate plaintiff's neurological deficits. Following joinder ofissue and discovery, defendants moved for summary judgment. Supreme Court granted themotions and dismissed the complaint as to all defendants. Plaintiffs appeal and we nowaffirm.[FN*]
As the proponent of summary judgment in a medical malpractice action, a defendant bearsthe initial burden of demonstrating that the medical treatment rendered was within acceptablestandards of care or that his or her actions did not cause the claimed injuries (see Derusha v Sellig, 92 AD3d1193, 1193-1194 [2012]; Maki vBassett Healthcare, 85 AD3d 1366, 1368 [2011], appeal dismissed 17 NY3d 855[2011], lv dismissed and denied 18 NY3d 870 [2012]). Once a defendant has met thatrequirement, the burden shifts to the plaintiff to establish, through competent expert medicalopinion evidence, that there exists a triable issue of fact as to whether there was a deviation fromthe accepted standard of care and whether there exists a causal nexus between that deviation andthe plaintiff's injuries (see Adams vAnderson, 84 AD3d 1522, 1524 [2011]; Plourd v Sidoti, 69 AD3d 1038, 1039 [2010]; Bell v Ellis Hosp., 50 AD3d 1240,1241 [2008]).
Here, defendants established through expert testimony that the use of TPA is contraindicatedin any instance in which a VAD is part of the differential diagnosis because of [*3]the significant risk of excessive bleeding, likely causing death.Therefore, defendants met their initial burden of demonstrating that the treatment of plaintiff waswithin the acceptable standards of care.
In response, plaintiffs presented no evidence that would support a contrary conclusion. Apossible VAD was included in the initial diagnosis, continued to be part of the differentialdiagnosis by the neurologist and, notably, was still included in the differential diagnosis uponplaintiff's release from Albany Medical Center one month later. Plaintiffs failed to demonstrateany error in this diagnosis or to raise a question of fact as to whether TPA should have beenadministered despite the diagnosis of a possible VAD. Plaintiffs rely heavily on a single footnotein the affidavit of their neurology expert suggesting that once the CT scan came back normal, adiagnosis including a possible VAD should not have eliminated treatment with TPA. Thisgeneral statement, however, lacks sufficient specificity or certainty to create a question of fact asto whether Chapin's decision not to administer TPA was a deviation from the standard of care.Furthermore, as the evidence established that the use of TPA was absolutely contraindicated withplaintiff's diagnosis, plaintiffs' additional contentions regarding Chapin's care—includinghis failure to document his reexamination of plaintiff when additional symptoms were reportedby a nurse, that the ordered CT scan was not timely performed and read, that a neurologicalconsultation was not timely requested, and that plaintiff was not timely transferred to anotherfacility—are academic.
Inasmuch as plaintiffs have failed to establish liability on the part of Chapin, no vicariousliability lies against CMH or Columbia Emergency Services (see Dumas v Adirondack Med. Ctr., 89 AD3d 1184, 1187 [2011],lv denied 18 NY3d 807 [2012]; Flanagan v Catskill Regional Med. Ctr., 65 AD3d 563, 566[2009]). Finally, we reject plaintiffs' contention that CMH is independently liable by virtue of its2003 policy with regard to the use of TPA, as Chapin stated unequivocally that he did not rely onsuch policy in reaching his decision not to administer TPA to plaintiff.
We have examined the remainder of plaintiffs' contentions and find them to be without merit.
Peters, P.J., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order andjudgment are affirmed, with one bill of costs.
Footnote *: Supreme Court grantedSchnide's unopposed motion for summary judgment and, inasmuch as plaintiffs do not challengethat determination in their brief, any issue with respect thereto is deemed abandoned (see Matter of Barnes v Fischer, 93AD3d 967, 968 [2012]; Matter ofMcDonald v Board of the Hudson Riv.-Black Riv. Regulating Dist., 86 AD3d 844, 846[2011]).