| Kristal R. v Nichter |
| 2014 NY Slip Op 01411 [115 AD3d 409] |
| March 4, 2014 |
| Appellate Division, First Department |
| Kristal R., an Infant, by Jesenia D., Her Mother and NaturalGuardian, et al., Respondents, v Charles Nichter, M.D., et al.,Appellants. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Susan Paulson of counsel),for New York City Health and Hospital Corporation, appellant. Scaffidi & Associates, New York (Anthony J. Scaffidi of counsel), forrespondents.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered February 21,2012, which, to the extent appealed from as limited by the briefs, denied the motions ofdefendants New York City Health and Hospitals Corporation (Jacobi Hospital) andMontefiore Medical Center (Montefiore) for summary judgment dismissing thecomplaint, unanimously reversed, on the law, without costs, and the motion granted. TheClerk is directed to enter judgment accordingly.
On May 17, 2001, the infant plaintiff, then five years old, suffered a generalizedtonic-clonic seizure and was admitted to Lincoln Medical and Mental Health Center. Onadmission, she was no longer actively seizing, but had a low grade fever and complainedof a headache. All diagnostic tests, including electroencephalography (EEG), lumbarpuncture, MRI and CT scan, were normal or negative. The attending pediatricneurologist ruled out bacterial meningitis, brain infection, and mycoplasma pneumonia;her assessment was "seizure associated with febrile illness most likely a complex febrileseizure." Plaintiff was administered Ativan to control seizure activity, and intravenousantibiotics, and returned to her baseline mental status. She was discharged on May 21,2001, with a prescription for Diastat, which is used to treat immediate seizures but doesnot prevent future seizures or a seizure disorder from progressing.[FN1]
On June 4, 2001, plaintiff experienced a generalized seizure and was taken byambulance to the emergency room at defendant Bronx Lebanon Hospital, where shecontinued to seize. [*2]Ativan was administered, andplaintiff returned to her baseline mental status. Bronx Lebanon did not repeat the EEG,lumbar puncture, or CT scan performed by Lincoln. Plaintiff was discharged on June 5with a working diagnosis of complex febrile seizure.[FN2]
On June 7, 2001, plaintiff experienced another seizure and was taken to defendantJacobi Hospital (Jacobi), where she continued to have intermittent focal and generalizedmotor seizures. She was afebrile, but complained of headaches.
On admission, Ativan was prescribed to control the seizures and Acyclovir forpossible herpes simplex virus. Plaintiff was seizure-free overnight, with no reports ofsignificant abnormal behavior. However, between June 9 and 10, she experiencedmultiple seizures and had episodes of abnormal behavior. Plaintiff was treated withTegretol, Phospenytoin and Ativan, and the seizures were suppressed. Differentialdiagnoses of status epilepticus and viral encephalitis were considered.[FN3] On June 12, plaintiff experienced multiple seizures and abnormal behavior, and wastransferred to defendant Montefiore.
On June 13, the infant plaintiff was moved to Montefiore's epilepsy unit for videoEEG monitoring for evaluation of seizures and possible status epilepticus. After reviewof the EEG monitoring, the attending pediatric neurologist's assessment was: "Abnormalbehavioral manifestations. Rule out frequent seizures status . . . encephalitis. . . collagen vascular disease . . . parainfectiousdisorder. . . . Continue Dilantin, Tegretol . . . to maximizeseizure management."
By June 18 the working diagnosis had changed to probable viral or parainfectiousencephalopathy. On June 19, plaintiff was transferred to pediatrics. She remained onTegretol and the anti-epileptic drug Dilantin to control her seizures, and was given a10-day course of the antibiotic Cipro.
Plaintiff was discharged on July 3, 2001, on Tegretol. In the early morning hours ofJuly 5, 2001, she suffered another seizure and was returned to Montefiore, where sheremained overnight.
Plaintiffs allege that Jacobi and Montefiore departed from accepted medical practicesby failing to properly diagnose, treat and suppress the seizure disorder between June2001 and mid-July 2001, which caused it to progress to status epilepticus and complexpartial status, leaving the infant plaintiff (plaintiff) neurologically impaired. Among otherthings, plaintiffs allege that with status epilepticus documented as early as June 10, it wasa departure for Jacobi to wait two days to transfer plaintiff to Montefiore for continuousvideo EEG monitoring, which was unavailable at Jacobi, and that Montefiore failed totimely and appropriately administer antiseizure medications and antibiotics.
Jacobi and Montefiore made prima facie showings that they did not deviate fromaccepted medical practices in treating the plaintiff's seizure disorder by submittingplaintiff's medical [*3]records, deposition transcripts ofphysicians who treated plaintiff, and affidavits by their medical experts (see Bacani v Rosenberg, 74AD3d 500 [1st Dept 2010], lv denied 15 NY3d 708 [2010]; Gargiulo v Geiss, 40 AD3d811 [2d Dept 2007]).
Jacobi performed numerous diagnostic tests, including several MRIs & EEGs,multiple spinal taps, a CT scan, blood counts, blood and urine cultures, and cerebrospinalfluid (CSF) cultures. It administered three antiseizure medications to plaintiff,Phosphenytoin, Tegretol, and Ativan, and monitored their levels to ensure proper dosing.Jacobi's expert opined that these tests were appropriate and that the dosage of theanti-seizure medications was adjusted appropriately to ensure that the levels ofmedication were within therapeutic guidelines and at sufficient levels to addressplaintiff's seizure activity. He also opined that no evidence supported a diagnosis ofnonconvulsive seizures at Jacobi, and that the failure to use video EEG monitoring wasnot a deviation in 2001.
Montefiore prescribed Tegretol for the seizures, Dilantin and Fosphenytoin forepisodes of abnormal behavior, and Haldol for delirium. With respect to plaintiffs'allegations that Montefiore failed to adequately control plaintiff's seizures, Montefiore'sexpert opined that these medications were appropriate and that hospital staffappropriately managed plaintiff's seizure activity. He further opined that the appropriateworkup was performed to determine the cause of the seizures, including blood tests, CSFtests, EEG monitoring, a lumbar puncture, and a brain MRI, and that there were nogrounds for a claim of lack of informed consent, since a reasonable person would haveconsented to the treatment.
Plaintiffs' expert's conclusory affirmation in opposition failed to raise factual issueswhether defendants departed from accepted medical practices and, if so, whether theirdepartures proximately contributed to the failure to timely diagnose and treat plaintiff'sseizure disorder and subsequent neurological injuries (see Alvarez v ProspectHosp., 68 NY2d 320 [1986]; Oestreich v Present, 50 AD3d 522 [1st Dept 2008]; Brown v Bauman, 42 AD3d390 [1st Dept 2007]). The expert's conclusion that plaintiff's medicationlevels at Jacobi and Montefiore were not properly adjusted was based on supposition andhindsight. Among other things, the expert failed to explain why the levels of medicationprescribed were inappropriate given the clinical presentation at the time (see Matter of Joseph v City of NewYork, 74 AD3d 440 [1st Dept 2010]).
Plaintiffs' expert opines that Jacobi failed to initiate an appropriate antiseizuremedication regimen based upon the "true diagnosis of nonconvulsive status epilepticus."However, although plaintiff received a differential diagnosis of status epilepticus on June10, 2001, it is not until June 12, 2001, that her chart notes "complex partial status" andshe was transferred to Montefiore that day. Plaintiffs' expert offered only conclusoryassertions that plaintiff was having nonconvulsive seizures that would have beendiscovered earlier and would not have progressed to status epilepticus had Jacobiprovided continuous EEG monitoring or transferred plaintiff to Montefiore sooner. Theexpert does not identify the actions Jacobi should have taken upon discovering theexistence of nonconvulsive seizures when it was already [*4]monitoring plaintiff's medication levels and investigatingthe differential diagnosis of viral encephalitis (see Rodriguez v Montefiore Med. Ctr., 28 AD3d 357 [1stDept 2006]). Concur—Sweeny, J.P., Renwick, Andrias, Freedman and Feinman,JJ.Footnote 1: The action against NewYork City Health and Hospitals Corporation with respect to Lincoln Medical and MentalHealth Center has been discontinued with prejudice.
Footnote 2: Because the claimsrelated to the diagnosis and treatment of encephalitis, mycoplasma pneumonia andmycoplasma encephalitis were dismissed on reargument, Bronx Lebanon is not pursuingits appeal.
Footnote 3: Status epilepticus is aseizure that lasts more than 30 minutes, or multiple seizures over a 30-minute period oftime in which the patient does not return to the baseline mental status between seizures.