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Defendants Seek Summary Judgment Pursuant to CPLR 3212



In this family case, the plaintiff in this action seeks to recover damages for medical malpractice and lack of informed consent. She underwent gastric bypass surgery at a hospital by the defendant doctor on July 23, 2008 and she was discharged on July 28, 2008. On the morning of July 29, 2008, she was transported to another hospital via ambulance because she was suffering from severe abdominal pain. She was treated there for eight hours. While there, she was examined and tests were conducted including a CT scan of her abdomen.

A bariatric surgeon conducted a surgical consult via telephone. His primary differential diagnosis included post-operative pain along with anxiety of recent surgery, some form of intra-abdominal process, infection or inflammation. The possibility of an anastomotic leak was also considered.

While at Good Samaritan, the plaintiff developed a fever and her abdominal pain worsened. Her temperature went from normal to 102.6; her pulse rate increased to 130; and, her oxygen saturation dropped from 96% to 90%. Upon determining that a possible bowel perforation could not be ruled out, the doctor conferred with another and together they concluded that in light of her stable condition and the doctor’s history of treating her, the doctor should be transferred to NUMC via ambulance.

The plaintiff arrived at the hospital at 8:10 p.m. on July 29th hemo-dynamically stable. A doctor attended to her in the Emergency Room. Upon admission, she had complaints of fever, sweating, chest pressure, shortness of breath and a productive cough with brown phlegm. She was in mild respiratory distress and had abdominal tenderness. Because her oxygen saturation was 84% by pulse oximetry, she was given 100% oxygen via non-rebreather mask and her oxygen saturation improved to 90%. The plaintiff was noted to be in acute distress. Her incision from the bypass procedure had serious drainage and her breath sounds bilaterally were decreased in the lower fields. Her abdomen was soft, diffuse, distended and tender in the lower part of the wound.

An anastomotic leak was confirmed via an upper GI series which was completed by 2:05 a.m. on July 30th. The tests showed free extravasation of oral contrast from the proximal gastric bypass anastomotic site. Since the plaintiff had reported that the pain had started in the morning of the 29th, based upon the plaintiff’s symptomatology and his doctor’s training, the doctor opined that the anastomotic leak started when the patient was at home during the morning of the 29th when she experienced a pop and abdominal pain. The plan was to continue IV fluids and antibiotic therapy, to monitor the heart rate, to perform repeat abdominal exams and to provide DVT and GI prophylaxis.

The plaintiff was returned to the operating room on July 30, 2008 at 8:00 a.m. for repair of the gastrojejunostomy leakage under general anesthesia. She underwent exploratory laparotomy, lysis of adhesions and repair of the anastomosis by the doctor with the assistance of surgical resident.

The operative report indicates that dehiscence of the gastrojejunostomy was seen in the upper epigastric region with significant inflammation of the tissues. Cultures of the abdominal fluid were collected. After the procedure was performed, Methylene blue dye was used to test for leakage and no gross leakage was noted. A tongue of the omentum was placed over the repair and secured.

Complications developed and the plaintiff remained at the hospital until September 17, 2008 during which time she was treated for sepsis, Adult Respiratory Syndrome and Psedomonas pneumonis. These conditions necessitated prolonged support including a tracheostomy, the need for a PIC line for IV access, percutaneous drainage of collections of intra-abdominal fluid, fungemia, bacteria, and a gastrostomy tube leak.

All of the defendants seek summary judgment dismissing the complaint against them.

“On a motion for summary judgment pursuant to CPLR §3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.” “Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers.” Once the movant’s burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference.

“The essential elements of medical malpractice are (1) a deviation or departure from accepted medical practice, and (2) evidence that such departure was a proximate cause of injury.” “Thus, [o]n a motion for summary judgment dismissing the complaint in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby. “Once a defendant physician has made such a showing, the burden shifts to the plaintiff to ‘submit evidentiary facts or materials to rebut the prima facie showing by the defendant so as to demonstrate the existence of a triable issue of fact.’ ”

“General allegations that are conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice are insufficient to defeat a defendant’s motion for summary judgment. “In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party.” A plaintiff’s expert must, address all of the pivotal facts relied upon by the defendant’s expert in order to establish the existence of a material issue of fact.

A hospital cannot be held vicariously liable for the malpractice of a private attending doctor. In addition, “[w]hen supervised medical personnel are not exercising their independent medical judgment, they cannot be held liable for medical malpractice unless the directions from the supervising superior or doctor so greatly deviates from normal medical practice that they should be held liable for failing to intervene.”

“To establish a cause of action [to recover damages] for malpractice based on lack of informed consent, plaintiff must prove: (1) that the person providing the professional treatment failed to disclose alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated with the treatment, and the alternatives, that a reasonable medical practitioner would have disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed, and (3) that the lack of informed consent is a proximate cause of the injury.’

In sum, the doctor advised the plaintiff of the risks attendant to the surgery, in particular the possibility of a leak at the site of the anastomosis as well as an infection and the possibility of dehiscence of the wound and a breakdown of the connection between the small intestine and the stomach that was formed during the surgery. He also notes that a battery of tests were done to establish that the plaintiff was a proper candidate for the surgery and a consent form was executed, as was a risk advisory sheet and informative questionnaire. T

“An anastomotic leak under the circumstances of this case is a surgical emergency, and time is of the essence. Every hour that passes with such a leak makes the recovery for the patient that much harder. . . . [T]he delays here were significant factors in causing significant complications in this patient, including sepsis, Adult Respiratory Syndrome, Pseudomonas pneumonis, the need for prolonged respiratory support, the need for PIC lines for IV access, percutaneous drainage of intra-abdominal fluid collections, fungemia, bacteremia, the need for a tracheostomy, a gastrostomy tube leak, and hospitalization for about two and a half months until discharge on September 27, 2008.”

The opines that the defendants departed from good and accepted medical practice by delaying the identification and treatment of gastrojejunal anastamotic leak thereby causing significant complications, all of which could have been avoided.

The plaintiff has not established any issues of fact with respect to her claim of lack of informed consent. That claim is dismissed as against all defendants.

The Court ORDERED, that the defendants’ motions for summary are granted and the complaint against them is dismissed.

The experienced lawyers at Stephen Bilkis and Associates should be consulted on family issues. By reason of the years of their practice and experiences, they will be able to render a competent advice. They have offices to serve you throughout the New York area, including locations in Nassau County, Suffolk County, Westchester County, Manhattan, the Bronx, Brooklyn, Staten Island and Queens.

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