| Wilk v James |
| 2013 NY Slip Op 05376 [108 AD3d 1140] |
| July 19, 2013 |
| Appellate Division, Fourth Department |
| Joanne Wilk, as Administratrix of the Estate of Steven R.Wilk, Deceased, Respondent, v David M. James, M.D., et al., Defendants, andLouis R. Baumann, M.D., et al., Appellants. |
—[*1] Hamsher & Valentine, Buffalo (Richard P. Valentine of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.),entered August 23, 2012. The order denied the motion of defendants Louis R. Baumann,M.D., Carlo M. Perfetto, M.D. and Western New York Urology Associates, LLC, forsummary judgment dismissing the amended complaint and all cross claims against them.
It is hereby ordered that the order so appealed from is reversed on the law withoutcosts, the motion is granted, and the amended complaint and all cross claims againstdefendants Louis R. Baumann, M.D., Carlo M. Perfetto, M.D., and Western New YorkUrology Associates, LLC are dismissed.
Memorandum: Plaintiff, as administratrix of the estate of her husband (decedent),commenced this medical malpractice and wrongful death action seeking damages for thealleged negligence of defendants in their care and treatment of decedent. DefendantsLouis R. Baumann, M.D., Carlo M. Perfetto, M.D., and Western New York UrologyAssociates, LLC (hereafter, defendants), appeal from an order denying their motion forsummary judgment dismissing the amended complaint and all cross claims against them.We reverse.
At approximately 2:42 p.m. on February 16, 2004, decedent called the office of Dr.Perfetto, his treating urologist, and spoke to a secretary. Decedent told the secretary thathe went to the emergency room the day before, that he "ha[d] stones," and that he was "ina lot of pain." The secretary relayed the message to a medical assistant, who calleddecedent back at 3:08 p.m. Decedent's line was busy. The medical assistant calleddecedent again at 4:26 p.m. and left a message for decedent. At 4:43 p.m., decedentreturned the call and spoke to the medical assistant. The medical assistant's notes fromthat conversation indicate that decedent told her that he had gone to the emergency roomthe day before due to lower back pain and that he was told that he had "stones." Decedentalso experienced urinary retention at that time, which was [*2]treated with a catheter. Decedent told the medical assistantthat he had not urinated since being catheterized and that his back pain was a 7 out of 10on the pain scale. Those notes were forwarded to Dr. Perfetto, and the medical assistantcontacted the hospital to obtain decedent's X ray and CT scan results.
At 4:58 p.m., the medical assistant received a CT scan of decedent's abdomen takenon February 15, 2004 and forwarded it to Dr. Baumann, the on-call urologist. WesternNew York Urology Associates, LLC had a practice of "bring[ing]" patients who wereunable to urinate into the office without speaking first with a physician. In accordancewith that policy, the medical assistant advised decedent to come to the office for possiblecatheterization. At 5:23 p.m., the medical assistant notified Dr. Perfetto that decedentwas on his way to the office. Dr. Perfetto reviewed the medical assistant's message aswell as the CT scan report, and advised her that because the office lacked sufficient staffto assist him with the catheterization at that time, decedent should instead go to theemergency room to have a Foley catheter inserted. He further advised the medicalassistant that decedent should make a follow-up appointment with him or the nursepractitioner. At 5:55 p.m., the medical assistant noted that she instructed decedent to goto Mercy Ambulatory Care Center (MACC) for "evaluation catheter insertion," notifiedMACC that he was coming, and further instructed decedent to schedule a follow-upappointment. Decedent arrived at MACC at 7:10 p.m., complaining of urinary retentionand pain and pressure in his, suprapubic area. Decedent's blood pressure was elevated;otherwise, he was hemodynamically stable. A Foley catheter was inserted and 1,000cubic centimeters of urine were released. Thereafter, decedent's blood pressure returnedto normal and, after consulting with Dr. Baumann, MACC discharged decedent with thecatheter in place, and advised him to increase his fluid intake and to follow up with Dr.Perfetto the next day. Decedent, however, did not contact Dr. Perfetto. Instead, onFebruary 18, 2004, decedent was transported via ambulance to the emergency room dueto complaints of increased pain and inability to feel or move his legs, and was admittedfor neurosurgical evaluation. An MRI revealed a spinal epidural hematoma at L2 throughL5 and a clot at T11 through T12, and decedent underwent an emergency "T7-L4laminectomy with the evacuation of intradural spinal hematoma."
The day after the surgery, decedent's motor examination declined, and another MRIrevealed a reaccumulation of the clot. As a result, on February 20, 2004, decedentunderwent a second surgery for "re-exploration and re-evacuation of his intradural clot."Decedent's condition slowly improved, and he was scheduled to be transferred to a spinalcord injury rehabilitation center. At approximately noon on March 1, 2004, however,decedent's condition suddenly deteriorated, and he died on March 3, 2004. The deathcertificate lists the immediate cause of death as "cerebral infarct with herniation"occurring within "hours" of decedent's death. The cerebral infarct was "due to or as aconsequence of" shock with intestinal ischemia beginning "days" before decedent's deaththat, in turn, was "due to or as a consequence of" aortic dissection, which likewise began"days" prior to decedent's death. The death certificate also lists "spinal cord infarct[secondary to] hematoma" as another significant condition contributing to his death.
As plaintiff correctly concedes, defendants met their initial burden on the motion byestablishing "the absence of any departure from good and accepted medical practice[and] that any departure was not the proximate cause of [decedent]'s alleged injuries" andeventual death (Shichman vYasmer, 74 AD3d 1316, 1318 [2010]; see O'Shea v Buffalo Med. Group, P.C., 64 AD3d 1140,1140 [2009], appeal dismissed 13 NY3d 834 [2009]). Dr. Perfetto and Dr.Baumann each submitted their own affidavit opining, with a reasonable degree ofmedical certainty, that they did not deviate from accepted urological practice, and thatany acts or omissions on their part did not cause or contribute to decedent's death, whichoccurred over two weeks after their treatment of decedent (see Lake v Kaleida Health, 59AD3d 966, 966 [2009]; Darling v Scott, 46 AD3d 1363, 1364 [2007]). The [*3]physicians' affidavits directly address each of theallegations of negligence in plaintiff's bills of particulars (see Abbotoy v Kurss, 52 AD3d1311, 1312 [2008]), and their opinions are supported by decedent's medical recordsand excerpts from the autopsy report (see Alvarez v Prospect Hosp., 68 NY2d320, 325 [1986]).
The burden thus shifted to plaintiff to "raise triable issues of fact by submitting aphysician's affidavit both attesting to a departure from accepted practice and containingthe attesting [physician's] opinion that the defendant[s'] omissions or departures were acompetent producing cause of the injury" (O'Shea, 64 AD3d at 1141 [internalquotation marks omitted]; seeMoran v Muscarella, 85 AD3d 1579, 1580 [2011]). It is well settled that"[g]eneral allegations of medical malpractice, merely conclusory and unsupported bycompetent evidence tending to establish the essential elements of medical malpractice,are insufficient to defeat defendant[s'] . . . summary judgment motion"(Alvarez, 68 NY2d at 325). Thus, "[w]here the expert's ultimate assertions arespeculative or unsupported by any evidentiary foundation, . . . [his or her]opinion should be given no probative force and is insufficient to withstand summaryjudgment" (Diaz v New York Downtown Hosp., 99 NY2d 542, 544 [2002]).
We agree with defendants that the affidavit of plaintiff's urological expert isinsufficient to defeat their motion inasmuch as it is vague, conclusory, speculative, andunsupported by the medical evidence in the record before us (see DiGeronimo v Fuchs, 101AD3d 933, 936-937 [2012]; Foster-Sturrup v Long, 95 AD3d 726, 728-729 [2012]; Moran v Muscarella, 87 AD3d1299, 1300 [2011]). The crux of the opinion of plaintiff's expert, which SupremeCourt relied upon in denying defendants' motion, is that defendants deviated from thestandard of care in failing to order a CT scan with contrast of decedent's abdomen andpelvis on February 16, 2004 and that, but for such deviation, defendants or other medicalproviders would have diagnosed the purported underlying cause of decedent's condition,i.e., an aortic dissection, in sufficient time to surgically correct that condition. However,even assuming, arguendo, that decedent's urological symptoms on February 16, 2004were caused by an aortic dissection, we agree with defendants that the affidavit ofplaintiff's expert fails to raise an issue of fact with respect to proximate cause (see generally Bey v Neuman,100 AD3d 581, 582-583 [2012]). Notably, plaintiff's expert does not opine thatdefendants should have diagnosed an aortic dissection allegedly existing on February 16,2004 based upon decedent's complaints of pain and urinary retention on that date. Rather,plaintiff's expert asserts that, based upon those complaints and the February 15, 2004 CTscan showing an enlarged left kidney, "[a] reasonable differential diagnosis. . . would have included acute infarct of the left kidney." According toplaintiff's expert, in order to rule out that condition, defendants "had a duty to assure that,at a minimum, a CT [s]can of the abdomen and pelvis, with contrast, [was] performed onFebruary 16, 2004." The expert contends that, if that CT scan had been performed onFebruary 16, 2004, "then diagnosis of [decedent]'s aortic dissection . . .would, more probably than not, have been made." Significantly, however, the medicalrecords indicate that it was a CT scan of decedent's head and chest, not a scan of hispelvis and abdomen, that revealed an aortic dissection on March 1, 2004. Thus, theopinion of plaintiff's expert that an abdominal and pelvic CT scan performed on February16, 2004 would more likely than not have revealed an aortic dissection is speculative.Moreover, it is undisputed that decedent did not in fact have an infarct of his left kidney.Plaintiff is therefore seeking a determination that defendants were negligent in failing toorder a diagnostic test to rule out a urological condition that decedent did not havebecause that test may incidentally have revealed an underlying and unsuspectedcardiothoracic condition. We agree with defendants that the causal link betweendefendants' alleged negligence, i.e., the failure to order a CT scan with contrast ofdecedent's pelvis and abdomen to rule out a kidney infarct, and decedent's injuries, i.e.,his deterioration and death allegedly from an aortic dissection that might have beendisclosed on such a CT scan, is simply too attenuated to raise an issue of fact with respectto causation (see generallyCorsino v New York City Tr. Auth., 42 AD3d 325, 327 [2007]). "[H]indsightreasoning," of [*4]course, is "insufficient to defeatsummary judgment" (Brown vBauman, 61 AD3d 540, 540-541 [2009] [internal quotation marks omitted]).
Although the dissenting justice concludes that the result herein is inconsistent withan earlier decision issued by this Court in a separate appeal in this case (see Wilk vJames, 107 AD3d 1480 [2013]), we note that this appeal involves differentdefendants who had different obligations with respect to the decedent as well asadditional medical records that were not submitted in the earlier appeal.
We therefore reverse the order, grant the motion, and dismiss the amended complaintand all cross claims against defendants.
All concur except Fahey, J., who dissents and votes to affirm in the followingmemorandum.
Fahey, J. (dissenting). I respectfully dissent and would affirm for the reasons statedin the decision at Supreme Court. I add only that, in my view, the result reached by themajority is inconsistent with our decision in a separate appeal in this case (Wilk vJames, 107 AD3d 1480 [2013]) in its application of the concept of differentialdiagnosis to other doctors and medical providers who were involved in this matter.Present—Smith, J.P., Fahey, Peradotto and Lindley, JJ.