| Parnell v Montefiore Med. Ctr. |
| 2009 NY Slip Op 05190 [63 AD3d 573] |
| June 23, 2009 |
| Appellate Division, First Department |
| Barbara Parnell, Individually and as Parent and Natural Guardianof Latoya Fleming, an Infant, Appellant, v Montefiore Medical Center et al.,Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel),for Montefiore Medical Center, respondent. Dwyer & Taglia, New York (Peter R. Taglia of counsel), for Baron S. Lonner, M.D. andBaron S. Lonner, M.D., P.C., respondents.
Judgment, Supreme Court, Bronx County (Norma Ruiz, J.), entered June 11, 2008,dismissing the complaint, unanimously modified, on the law, to reinstate the complaint asagainst defendant hospital, and otherwise affirmed, without costs.
Dr. Lonner established prima facie that the pneumothorax was not the result of intraoperativenegligence. The record discloses that the infant plaintiff was stable during and immediately aftersurgery, and both intra- and postoperative X rays showed that the chest tube was properly placedand that the right lung was fully inflated. Dr. Lonner's expert averred that there was no evidenceto support the allegation that the right lung was injured during surgery. The infant plaintiff's vitalsigns, together with blood gases and pulse oximetry, ruled out plaintiff's conclusion that her lunghad been injured during surgery, as did a chest X ray taken the day after the surgery. Defendant'sexpert opined that the pneumothorax on the second day after the surgery was caused by an acuteevent such as a kinked, blocked or disconnected chest tube.
The assertion of plaintiff's expert that Dr. Lonner was negligent in the insertion of the chesttube is unsupported by a citation to any medical evidence and therefore fails to raise an issue offact. Plaintiffs identify no medical evidence whatsoever that supports the allegation that theinfant plaintiff's lung was injured during the surgery or that the chest tube was improperlyinserted.
It is uncontroverted that the postoperative monitoring of the infant plaintiff and the chesttube rested with the thoracic surgeon and the hospital staff. Thus, Dr. Lonner owed the infantplaintiff no duty of care with respect to the monitoring of the chest tube (see Cintron v NewYork Med. Coll. Flower & Fifth Ave. Hosps., 193 AD2d 551 [1993]; Markley v AlbanyMed. Ctr. Hosp., 163 AD2d 639 [1990]).
However, we find that there is an issue of fact as to the hospital's negligence. It was the[*2]hospital's duty to monitor the patient postoperatively,including monitoring the chest tube and the Pleurovac closed drainage system and all itscomponent parts. The drainage system provided continuous suction to assist in drawing air andfluids out of the pleural space. The assertion of the hospital's expert that there was no evidencethat the chest tube became detached from the suction is contrary to the record. Dr. Lonnertestified that he noticed that the chest tube connection, specifically the connection between thepatient and the canister attached in turn to the wall suction, was detached, and that heimmediately reattached the connection and proceeded with the resuscitation. Dr. Lonner alsotestified that if the tube became detached, air could go back into the pleural space and create apneumothorax. This testimony alone, that an integral part of the drainage system had becomedetached and increased the risk of a pneumothorax, the very harm that befell the infant plaintiff,raises an issue of fact as to the hospital's negligence.
Further, plaintiffs' expert averred that it was good and accepted medical practice to check allthe component parts of the chest tube and canister every time the patient was seen, at least onceevery hour, and that had the tube been properly monitored, it would not have become dislodgedand the infant plaintiff would not have suffered a pneumothorax. He took issue with theconclusion of the hospital's expert that a mucus plug occasioned the infant plaintiff's respiratoryarrest, pointing out that while there was evidence that the tube was dislodged when Dr. Lonnerfound the infant plaintiff, the medical record contains no evidence of a mucus plug.Concur—Tom, J.P., Friedman, Catterson, Moskowitz and Richter, JJ.