| David v Hutchinson |
| 2014 NY Slip Op 00600 [114 AD3d 412] |
| February 4, 2014 |
| Appellate Division, First Department |
| Victoria David, Respondent, v Philip MartinHutchinson, D.O., et al., Defendants, and Daniel Cerbone, M.D.,Appellant. |
—[*1] Irom, Wittels, Freund, Berne & Serra, P.C., Bronx (Richard W. Berne of counsel),for respondent.
Order, Supreme Court, Bronx County (Stanley Green, J.), entered March 20, 2013,which, insofar as appealed from, denied defendant Daniel Cerbone, M.D.'s cross motionfor summary judgment dismissing the complaint, unanimously reversed, on the law,without costs, the cross motion granted, and the amended complaint dismissed as againstdefendant Daniel Cerbone, M.D. The Clerk is directed to enter judgment accordingly.
In this action for medical malpractice, plaintiff alleges, inter alia, that defendantCerbone, an emergency room (ER) attending, and Dr. Philip Martin Hutchinson, asurgeon, failed to properly treat and diagnose plaintiff's decedent during a January 18,2003 ER visit at defendant St. Barnabas Hospital, leading to her death on February 9,2004, more than one year later. At the time of her visit to the ER, Dr. Cerbone wasconcerned that decedent, who had undergone gallbladder removal surgery 11 days earlier and was complaining of pain at the operative site and abdomen, may havebeen suffering from a post-operative infection. Accordingly, he, inter alia, requested asurgical consultation which was provided by defendant Dr. Hutchinson. Dr. Cerbone,agreed with the diagnosis or impression, reached by Dr. Hutchinson, of Clostridiumdifficile infection and decedent was treated with intravenous fluids and an antibiotic. Shewas discharged later that day in stable condition, after her abdominal complaints hadresolved.
On January 22, 2003, decedent presented to Our Lady of Mercy Medical Center,where she was found to have two large liver abscesses and right pleural effusion. OnJanuary 27, the abscesses were drained and the condition was noted to have beenresolved as of the time of her discharge on February 13, 2003. Thereafter, decedentsuffered from a series of complications, leading to repeated hospitalizations and nursinghome stays, and developed, inter alia, a MRSA infection secondary to decubitus ulcers.On February 9, 2004, decedent died in a nursing home.
Dr. Cerbone made a prima facie showing of entitlement to judgment as a matter oflaw by [*2]submitting and/or relying upon, among otherthings, his expert affirmation, the opinions of other defense experts, and decedent'smedical records. Significantly, Dr. Cerbone's expert opined that imaging studies were notindicated given the absence of a fever, significant abdominal tenderness, rebound, andguarding, and that there was no reason to suspect a liver abscess or admit decedent aftershe remained stable (see Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]).Additionally, one of the defense experts opined that the treatment rendered at St.Barnabas was not causally related to decedent's death, as her liver abscesses had longresolved by the time of her death and the conditions she subsequently developed wereunrelated to the abscesses.
In opposition, plaintiff failed to raise a triable issue of fact. Her surgical expert didnot address any of the contraindications as to the severity or nature of decedent's illnessupon presentment to the ER, which, as indicated above, included a lack of fever, lack ofsignificant abdominal tenderness, guarding or rebound tenderness, the fact that thesurgical site was found to be clean and healing nicely, and that decedent was noted to bestable and comfortable for hours prior to discharge (see Limmer v Rosenfeld, 92 AD3d 609, 609-610 [1st Dept2012]; Abalola v FlowerHosp., 44 AD3d 522, 522 [1st Dept 2007]).
Moreover, rather than identify any basis to suspect the presence of liver abscesses,plaintiff's expert maintained that testing for a postoperative infection would have led tothe discovery of the abscesses. However, the failure to investigate a condition that wouldhave led to an incidental discovery of an unindicated condition, does not constitutemalpractice (see Curry v Dr.Elena Vezza Physician, P.C., 106 AD3d 413, 413 [1st Dept 2013]; Rivera v Greenstein, 79 AD3d564, 568 [1st Dept 2010]). Additionally, plaintiff's expert failed to causally relate thealleged four-day delay in diagnosis and treatment of the postoperative infection and/orliver abscesses to decedent's death (see Mortensen v Memorial Hosp., 105 AD2d151 [1st Dept 1984]). Concur—Mazzarelli, J.P., Acosta, Saxe and Moskowitz, JJ.