| Foster-Sturrup v Long |
| 2012 NY Slip Op 04092 [95 AD3d 726] |
| May 29, 2012 |
| Appellate Division, First Department |
| Adrienne Foster-Sturrup et al., Respondents, v Paige Long,M.D., et al., Appellants. |
—[*1] White Fleischner & Fino, LLP, New York (Frank V. Kelly of counsel), forrespondents.
Order, Supreme Court, Bronx County (Julia I. Rodriguez, J.), entered July 7, 2011, which,insofar as appealed from as limited by the briefs, denied defendants' cross motion for summaryjudgment dismissing the complaint, unanimously reversed, on the law, without costs, and thecross motion granted. The Clerk is directed to enter judgment in favor of defendants dismissingthe complaint.
Plaintiff Adrienne Foster-Sturrup saw defendant Dr. Long, an obstetrician/gynecologist, onMarch 14, 2003, because she was experiencing pain and tenderness in her breasts and abdomen,and was concerned she might be pregnant. Foster-Sturrup did not experience any vaginalbleeding or nausea prior to her appointment, and took two home-pregnancy tests before seeingDr. Long, both of which came back negative. She told Dr. Long that she had an "abdominalpregnancy" in 1991, had "lost the baby," and had a history of infertility. Foster-Sturrup furtherinformed Dr. Long that she had not missed her previous menstrual period. Foster-Sturruprequested a blood test to determine if she was pregnant because, in the past, the pregnancy wouldshow up only through a blood test and not a urine test.
Dr. Long did not perform a blood test. After an examination and review of Foster-Sturrup'smedical history, Dr. Long diagnosed her with an infection and prescribed an antibiotic, Flagyl, tobe taken for seven days. Foster-Sturrup filled the prescription the following day and, according toher deposition testimony, did not experience any more pain once she started taking the antibiotic.
On March 23, 2003, Foster-Sturrup went to the emergency room because she wasexperiencing abdominal pain. She advised the medical staff that her last menstrual period hadbeen on February 22, 2003. The treating doctors performed a blood test, the result of whichindicated that Foster-Sturrup was in the very beginning stages of a pregnancy, with a gestationalage of approximately four weeks. The treating doctors also performed an ultrasound and sawfluid in the abdomen, but did not see anything in the uterus. The doctors surmised thatFoster-Sturrup had an ectopic pregnancy, but based on the ultrasound, were unable to determineits exact location. Foster-Sturrup was taken to the operating room for an exploratory laparotomywhich revealed that the ectopic pregnancy had implanted on her appendix. Foster-Sturrup'sappendix had burst and the doctors performed an appendectomy.[*2]
Plaintiffs commenced this action alleging medicalmalpractice based on defendants' failure to diagnose Foster-Sturrup's ectopic pregnancy;specifically, Dr. Long's failure to administer a blood test or an ultrasound on March 14.Defendants moved for summary judgment dismissing the complaint. The motion court denieddefendants' motion, finding that plaintiffs' expert's affidavit raised an issue of fact whetherdefendants departed from the accepted medical standard of care. We now reverse.
"To sustain a cause of action for medical malpractice, a plaintiff must prove two essentialelements: (1) a deviation or departure from accepted practice, and (2) evidence that suchdeparture was a proximate cause of plaintiff's injury" (Frye v Montefiore Med. Ctr., 70 AD3d 15, 24 [2009]). Generally,"the opinion of a qualified expert that a plaintiff's injuries were caused by a deviation fromrelevant industry standards would preclude a grant of summary judgment in favor of thedefendants" (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).Additionally, a plaintiff's expert's opinion "must demonstrate 'the requisite nexus between themalpractice allegedly committed' and the harm suffered" (Dallas-Stephenson v Waisman, 39 AD3d 303, 307 [2007] [citationomitted]). However, if "the expert's ultimate assertions are speculative or unsupported by anyevidentiary foundation . . . the opinion should be given no probative force and isinsufficient to withstand summary judgment" (Diaz at 544).
Defendants established their prima facie entitlement to summary judgment by submittingtheir expert's affirmation which explained that the treatment of Foster-Sturrup was within and inaccordance with good and accepted practice and was not the proximate cause of Foster-Sturrup'sinjury. Defendants' expert, Dr. D'Amico, affirmed that he reviewed Foster-Sturrup's depositiontestimony, medical records from the emergency room and operative report from her exploratorylaparotomy and appendectomy. Dr. D'Amico noted that the blood test administered by thehospital on March 23 revealed a human chorionic gonadotropin (hCG) (the "pregnancyhormone") level of 436 units, which indicates a very early pregnancy. Based on that number, Dr.D'Amico estimated that Foster-Sturrup's hCG level nine days earlier when she saw Dr. Long wasbetween 0 and 20. Dr. D'Amico averred that even if Dr. Long had administered a bloodpregnancy test on March 14, based on such a low hCG count, the standard of care would not haverequired an ultrasound for another four weeks since the embryo would not be visible at such anearly stage. An ultrasound done on March 14 would not have shown an ectopic pregnancybecause an ultrasound, according to Dr. D'Amico, "is reliable when there is a visualization of ayolk sac or embryo which equates to an hCG value of at least 1,500 to 2,000 units," a numberwell above the hCG level of 0 to 20.
Further, Dr. D'Amico stated that a blood pregnancy test would not have determined thelocation of the pregnancy or indicated that the pregnancy was ectopic. Lastly, D'Amico statedthat Flagyl is an appropriate antibiotic to treat a gynecological infection, even in a pregnantwoman, and that it did not contribute to either the adhesion of the ectopic pregnancy to theappendix, or to the appendiceal rupture.
In opposition, plaintiffs failed to raise an issue of fact. "Plaintiff's expert's affirmation wasconclusory and did not adequately address the prima facie showing in the detailed affirmation of[defendants'] expert" (Matter of Josephv City of New York, 74 AD3d 440, 440 [2010]; see Giampa v Marvin L. Shelton, M.D., P.C., 67 AD3d 439[2009]). Dr. Douglas Phillips, plaintiffs' expert, submitted an affidavit opining that a bloodpregnancy test and ultrasound would have led to an earlier diagnosis of an ectopic pregnancy, butdid not explain how this could occur since Foster-Sturrup was only a few weeks pregnant. Hefailed to contest [*3]Dr. D'Amico's statement that at such an earlystage of the pregnancy an ultrasound would not have been warranted for another four weeks. Hisaffidavit also is insufficient because it did not address or respond to Dr. D'Amico's statementsthat even if a blood pregnancy test had been administered, it would not have revealed the locationof the pregnancy.
Dr. Phillips averred that Dr. Long should have considered the possibility of an ectopicpregnancy, performed an additional blood test, which could have been "useful" in determiningthe location of the pregnancy, and then prescribed Methotrexate to treat an ectopic pregnancy andavoid surgery. However, Dr. Phillips' conclusion is difficult to reconcile with hisacknowledgment that Foster-Sturrup did not experience any of the classic symptoms associatedwith an ectopic pregnancy, namely, amenorrhea and vaginal bleeding, prior to her appointmentwith Dr. Long.
Even if we accept plaintiffs' argument that Dr. Long's failure to administer a blood pregnancytest was a departure from accepted medical standards, defendants' summary judgment crossmotion still should have been granted because plaintiffs failed to raise an issue of fact as tocausation. Dr. Phillips' opinion that Methotrexate should have been prescribed did not addresswhether or how Methotrexate would have been used to treat the specific ectopic pregnancy inthis case, which had adhered to Foster-Sturrup's appendix (see Matter of Joseph, 74AD3d at 441). Further, Dr. Phillips failed to address the fact that the treating doctors in theemergency room, nine days after the alleged malpractice occurred, still were unable to determinethe location of the pregnancy by performing a blood pregnancy test and an ultrasound. They wereonly able to locate it through exploratory surgery and the removal of Foster-Sturrup's burstappendix. Concur—Tom, J.P., Catterson, Richter, Abdus-Salaam and Román, JJ.