| Cole v Champlain Val. Physicians' Hosp. Med. Ctr. |
| 2014 NY Slip Op 02654 [116 AD3d 1283] |
| April 17, 2014 |
| Appellate Division, Third Department |
| Elizabeth A. Cole, Individually and as Administrator of theEstate of Edwin E. Cole Sr., Deceased, Respondent, v Champlain ValleyPhysicians' Hospital Medical Center et al., Appellants. |
—[*1] Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Molly C. Casey of counsel),for Craig Nachbauer, appellant. Burke, Scolamiero, Mortati & Hurd, LLP, Albany (Peter P. Balouskas of counsel),for William Bruce Bunn and another, appellants. The Mills Law Firm, LLP, Clifton Park (Christopher K. Mills of counsel), forrespondent.
McCarthy, J. Appeal from an order of the Supreme Court (Muller, J.), enteredJanuary 16, 2013 in Clinton County, which denied defendants' motions for summaryjudgment dismissing the complaint.
Edwin E. Cole Sr. (hereinafter decedent) was admitted to a hospital maintained bydefendant Champlain Valley Physicians' Hospital Medical Center (hereinafter CVPH)with complaints of a chronic cough that had begun to produce bloody sputum. A CT scanof [*2]decedent's chest revealed fluid collection in thedivision between the upper and lower lobes of his left lung. An attempt to drain the fluidwas unsuccessful and resulted in a collapsed lung. Defendant Craig Nachbauer, aconsulting thoracic surgeon, inserted a chest tube to reinflate the lung. The next day,Nachbauer inserted another chest tube and, thereafter, continued to monitor decedent.Defendant William Bruce Bunn, a pulmonologist, scheduled a bronchoscopy[FN1] for the next day, but canceled the procedure because decedent was suffering fromrespiratory distress. Bunn and Nachbauer discussed the possibility of performing athoracoscopy[FN2] to drain the fluid and scheduled the surgery for two days later. Decedent's conditiondeteriorated, including advancing pneumonia, renal failure and respiratory distressrequiring him to be put on a ventilator. Bunn and Nachbauer determined that decedentwas not stable enough to undergo surgery at that time. Approximately two weeks afterdecedent entered the hospital, Bunn determined that he was stable enough for surgery.The day before the scheduled thoracoscopy, Bunn performed a thoracentesis,[FN3] removing 1000 ccs of fluid from around decedent's right lung. The next day, Nachbauerperformed a bronchoscopy and thoracotomy, removing fluid and a hematoma of old,clotted blood from the left lung area. Nachbauer completed the surgery, apparentlywithout incident, and left the operating room. As defendant Madeline Waid, ananesthesiologist, was replacing a double lumen endotracheal tube with a single lumentube, a large amount of blood began shooting from the endoctracheal tube. The bloodobstructed decedent's airway, ultimately leading to cardiac arrest and death.
Plaintiff, decedent's widow, commenced this medical malpractice and wrongful deathaction against numerous defendants. The five remaining defendants,[FN4] through three separate motions, moved for summary judgment dismissing the complaint.Supreme Court denied the motions, prompting defendants to appeal.
Defendants, except CVPH, met their initial burden of establishing entitlement tosummary judgment. To meet the initial burden on a summary judgment motion in amedical malpractice action, defendants must present factual proof, generally consistingof affidavits, deposition testimony and medical records, to rebut the claim of malpracticeby establishing that they complied with the accepted standard of care or did not cause anyinjury to the patient (see Suib vKeller, 6 AD3d 805, 806 [2004]). Defendants may meet that burden bysubmitting a defendant physician's affidavit or affirmation describing the facts in specificdetail and opining that the care provided did not deviate from the applicable standard ofcare (see LaFountain v [*3]Champlain Val. Physicians Hosp. Med. Ctr., 97 AD3d1060, 1061 [2012]; Martino v Miller, 97 AD3d 1009, 1009-1010 [2012]).
Here, Nachbauer submitted medical records, deposition testimony from numerousphysicians, and his own affidavit detailing the care that he provided and opining that hisactions fell within the appropriate standard of care. Waid and CVPH submitted medicalrecords, Waid's affidavit and the affidavit of an expert anesthesiologist asserting thatWaid's actions met or exceeded the standard of care. Bunn and his practice group,defendant Champlain Valley Pulmonary Associates, P.C. (hereinafter CVPA), submittedmedical records and the affidavit of an expert in pulmonary medicine and critical careopining that Bunn complied with the standard of care. These submissions were sufficientto meet the burden on summary judgment for Nachbauer, Waid, Bunn andCVPA.[FN5] While the submissions were sufficient to show a lack of culpability for Waid—asan employee of CVPH—during the fatal surgery, they did not address decedent'scare by CVPH's employees and agents in the two weeks leading up to that surgery, whichwas also alleged as malpractice contributing to decedent's injuries and death.Accordingly, CVPH was not entitled to summary judgment because it did not meet itsinitial burden, regardless of the sufficiency of plaintiff's opposing papers (see Alvarezv Prospect Hosp., 68 NY2d 320, 324 [1986]; LaFountain v Champlain Val.Physicians Hosp. Med. Ctr., 97 AD3d at 1062).
As Nachbauer, Waid, Bunn and CVPA met their initial burden, the burden shifted toplaintiff to demonstrate triable questions of fact regarding whether these defendantsdeviated from the accepted standards of care and whether decedent suffered injury anddeath as a result of those deviations (see Martino v Miller, 97 AD3d at 1010; Maki v Bassett Healthcare, 85AD3d 1366, 1369 [2011], appeal dismissed 17 NY3d 855 [2011], lvdismissed and denied 18 NY3d 870 [2012]). In opposition to the motions, plaintiffsubmitted a detailed expert affidavit.[FN6] The expert opined that Waid, through overinflation or improper insertion of theendotracheal tube, caused the hemorrhage that immediately led to decedent's death.Although the exact source of bleeding was never identified, the expert explained possibleways that Waid may have caused the hemorrhage and stated that such bleeding does notordinarily occur in the absence of negligence, Waid had exclusive control over decedent'sbody and the medical instrumentalities at the time, and decedent was unconscious so hecould not have contributed to the situation. Therefore, questions of fact exist and plaintiffmay rely on the doctrine of res ipsa loquitur to attempt to establish Waid's negligence(see Kambat v St. Francis Hosp., 89 NY2d 489, 494 [1997]; DeCarlo v Eden Park HealthServs., Inc., 66 AD3d 1211, 1212 [2009]).[*4]
While conceding that Bunn and Nachbauer didnot cause the bleeding during surgery that immediately led to decedent's death, the expertopined that these defendants' inadequate care in the preceding two weeks left decedent ina weakened condition such that he could not survive the surgery, but that he could havesurvived if given proper care in a timely manner. Specifically, the expert states that Bunnshould have ordered or performed a bronchoscopy soon after decedent's admission to thehospital, performed the thoracentesis earlier, and scheduled and performed thethoracotomy sooner. Although the primary cause of death was cardiorespiratory arrestdue to an acute bleed, other contributing causes of death listed on the autopsy reportinclude acute and chronic lung congestion, "[b]ilateral pleural effusions" and "[s]tatuspost drainage blood from the left side of the pleural space." Bunn's expert pulmonologiststated that Bunn considered surgery early on and scheduled it, but had to cancel it due todecedent's deteriorating condition. Bunn's expert opined that Bunn exercised appropriatemedical judgment in accordance with the standard of care by postponing surgery untildecedent's respiratory distress and renal failure were under control. Plaintiff's expertindicates that decedent's organ failure and respiratory distress resulted from a failure totimely address the fluid surrounding the lungs, and that addressing the lung conditionaggressively and immediately would have avoided these other conditions that causedpostponement of the surgery. These factual disputes create questions of fact concerningwhether Bunn, and CVPA vicariously, breached the duty to provide adequate medicalcare and whether any such breach proximately caused decedent any injury.
Plaintiff's expert reaches the same conclusions about Nachbauer's failure to treatdecedent's other conditions earlier. Nachbauer contends that, as a surgical consultantrather than a primary care or attending physician, his duty to decedent was limited.Indeed, a physician may limit his or her duty "to those medical functions undertaken bythe physician and relied upon by the patient" (Markley v Albany Med. Ctr. Hosp.,163 AD2d 639, 640 [1990]; accord Dombroski v Samaritan Hosp., 47 AD3d 80, 84[2007]). Nachbauer averred that his role was limited to inserting chest tubes afterdecedent's lung collapsed, monitoring those tubes and consulting with decedent'sattending physicians regarding the possibility that he would need thoracic surgery.Nachbauer stated that other physicians were treating decedent's infections, pneumoniaand renal failure, such that he was not required to address those issues. However,considering the record in a light most favorable to plaintiff, as the nonmoving party (see Longtemps v Oliva, 110AD3d 1316, 1318 [2013]), the medical records and Nachbauer's own depositiontestimony indicate that he consulted with Bunn regarding plaintiff's condition and thescheduling of surgeries. To the extent that Nachbauer participated in such consultationsand decisions regarding the scheduling of surgeries, he had a duty to decedent to adhereto the appropriate standard of care (see Cygan v Kaleida Health, 51 AD3d 1373, 1375 [2008];Graddy v New York Med. Coll., 19 AD2d 426, 429 [1963] [stating that wherephysicians participate jointly in decision-making or diagnosis, each incurs liability fornegligence]; compare Dombroski v Samaritan Hosp., 47 AD3d at 86;Markley v Albany Med. Ctr. Hosp., 163 AD2d at 640). Contrasting thesedefendants' submissions with the opinion of plaintiff's expert that earlier surgicaltreatment would have provided decedent with a better outcome, the record demonstratesthe existence of questions of fact concerning whether Nachbauer deviated from thestandard of care and the effect of any such deviation on decedent's health and death.Accordingly, Supreme Court appropriately denied defendants' motions for summaryjudgment.
Although the record does not contain any information indicating that decedentsuffered conscious pain and suffering during his final surgery, he may have suffered suchpain and suffering as a result of any alleged medical malpractice committed in the twoweeks of hospitalization leading up to that surgery. Thus, that aspect of damages may besought at trial.[*5]
Peters, P.J., Stein and Egan Jr., JJ., concur.Ordered that the order is affirmed, with costs.
Footnote 1: A bronchoscopy is anexamination with a lighted, flexible tube that is inserted into the patient's trachea fordiagnosis of lung problems or to remove inhaled objects.
Footnote 2: A thoracoscopyinvolves using a lighted endoscope, inserted through incisions in the chest wall, toexamine the lungs and obtain tissue samples for testing.
Footnote 3: Thoracentesis involvesinserting a needle into the pleural cavity—the space between the two thinmembranes that line and surround the lungs—to remove fluid or air.
Footnote 4: Multiple originaldefendants are no longer involved, as a result of either stipulations of discontinuance orsuccessful motions for summary judgment.
Footnote 5: The allegations againstCVPA are all predicated on vicarious liability related to Bunn's treatment of decedent.
Footnote 6: Nachbauer argues thatplaintiff's expert affidavit is inadmissible because the expert is presumably an employeeof plaintiff's counsel's law firm. Without acknowledging whether the expert is soemployed, we reject Nachbauer's argument. Any alleged bias may affect the expert'scredibility, but not his or her competency to be a witness (see Caldwell v Cablevision Sys.Corp., 20 NY3d 365, 368 [2013]), and courts do not assess witness credibilityon motions for summary judgment (see Ferrante v American Lung Assn., 90NY2d 623, 631 [1997]).