Gordon v. D'Souza

The following e-filed papers read herein: NYSCEF Doc No.: Notice of Motion, Affirmations, Memoranda of Law, and Exhibits Annexed       83-100, 103-131 Opposing Affidavits (Affirmations) and Exhibits Annexed 137-142, 144-149 Reply Affirmations               152, 154 DECISION, ORDER, AND JUDGMENT In this action to recover damages for medical malpractice, lack of informed consent, and wrongful death, defendant Lionel D’Souza, M.D. (“Dr. D’Souza”), individually, and defendants Salvatore Docimo, D.O. (“Dr. Docimo”), Aaron Sasson, M.D. (“Dr. Sasson”), Muhammad Perwaiz, M.D. (“Dr. Perwaiz”), and Stony Brook Surgical Associates, University Faculty Practice (“Surgical Associates”), jointly, move, in each instance, for summary judgment dismissing the complaint of plaintiff Linnett Gordon, as the Administrator of the Estate of Jerry W. Gordon, deceased (“plaintiff”) (Seq. No. 1 and 2, respectively). Plaintiff opposes both motions insofar as they seek dismissal of the medical malpractice and wrongful death claims as against Drs. D’Souza, Docimo, and Sasson, as well as against Surgical Associates. Inasmuch as plaintiff does not expressly object to the dismissal of all claims as against Dr. Perwaiz,¹ nor objects to the dismissal of the informed consent claims as against the other moving defendants, all such claims are dismissed without further discussion. Background At 1:27 hours on August 20, 2017,² plaintiff’s decedent, Jerry W. Gordon (“patient”), was admitted, via the emergency room, to the medical intensive care unit (“MICU”) of nonparty Stony Brook University Hospital (“Stony Brook”)³ with the primary diagnosis of acute upper gastrointestinal (“GI”) bleeding that was likely secondary to his two-day-old, hemostatically unclipped⁴ polypectomy of a sessile (flat) benign polyp in his duodenum (Patient’s Chart at 2121 and 61).⁵ The patient, though relatively young at 54 years of age,⁶ was seriously ill: (1) his hemoglobin was critically low at 6.1; (2) his INR (a level of anticoagulation) was 2.1 (or approximately twice the level of normal for a patient who had not been taking an anticoagulant for the preceding seven days); (3) his pulse generally exceeded 100 beats per minute (tachycardia), and his systolic blood pressure was generally in the 90s or low 100s (a sign of hypotension that in combination with his tachycardia and his severe blood loss, suggested a potential for a cardiogenic shock); (4) he received several blood transfusions prior to the interhospital transfer; (5) his lung function and breathing were impaired by sarcoidosis for which (in addition to using an oxygen tank at home) he was taking several inhaler medications; (6) he was suffering from atrial fibrillation as well as from hypertension; (7) he was an insulin-dependent diabetic; and (8) he was obese with the body-mass index of 33.95.⁷ The intensivists’ goals were to resuscitate the patient, obtain a definitive control of his ongoing hemorrhage, treat his bleeding duodenum, and prevent the recurrence of bleeding. Whereas the goals of the intensivists were to resuscitate the patient with blood, fluids, and medications, the goals of the specialists (as selected and consulted by the intensivists) were to control the patient’s bleeding, eliminate its underlying cause, and prevent its recurrence. There were two options to stop the patient’s further bleeding. The non-operative (or minimally invasive) approach consisted of an esophagogastroduodenoscopy (“endoscopy”) to be performed by the gastroenterology (“GE”) service, and/or an embolization to be performed by the interventional radiology (“IR”) service. The operative (or invasive) approach was open surgery to be performed by the surgical service to “oversew” the bleeding vessel. All three consulting specialties (GE, IR, and surgery) were on call and available to the intensivists at the time of the patient’s admission to, and throughout his hospitalization at, Stony Brook. The intensivists, as the physicians in charge of the patient’s overall care, determined which of the three specialties (GE, IR, and/or surgery) they wanted to call in to assist with their patient management, and equally important, when they needed to call on such specialists. As noted, the intensivists were concurrently resuscitating the patient with blood, fluids, and medications. Gastroenterology was the first service that the intensivists turned to for bleeding control (Patient’s Chart at 62). Approximately one hour post-admission, at 2:46 hours on August 20th, the since-dismissed defendant Michael Clores, D.O. (“Dr. Clores”), telephonically discussed the patient’s condition with his attending, the moving defendant Dr. D’Souza. That discussion culminated with the joint “plan [by the GE service] for [performing an] EGD in [the] AM to evaluate and treat [the patient's] post-polypectomy bleed” (Patient’s Chart at 92). Approximately five hours later, in a note timed at 7:10 hours on August 20th, Dr. Clores reiterated the GE service’s plan for performing an upper endoscopy on the patient on the morning of August 20th, and Dr. D’Souza so concurred in his note cosigned at 22:57 hours on that date (Patient’s Chart at 45-46). Further, at 7:00 hours on August 20th, the patient consented, in writing, to an EGD to be performed by Dr. D’Souza (Patient’s Chart at 2048). Paperwork aside, however, Dr. D’Souza actually performed the upper endoscopy on the patient at approximately 17:15 hours on August 20th (the “initial endoscopy”), or approximately 16 hours after the patient’s acute presentation to Stony Brook (Patient’s Chart 40 [anesthesiologist's note]). During the initial endoscopy, Dr. D’Souza encountered a “visible” vessel in the patient’s duodenum; more particularly, a ten-millimeter “oozing” ulcer.⁸ Despite, the initial endoscopy, however, the patient’s duodenum continued to bleed. At 2:30 hours in the early morning of August 21st, Dr. Clores was notified by an intensivist that the patient was severely bleeding (expulsion of bright red blood by rectum for a total of three times, followed by blood vomit), and that he was hemodynamically unstable (i.e., that his systolic blood pressure, despite the ongoing resuscitation, had again fallen to the 90s) (Patient’s Chart at 91, 60). Dr. Clores telephoned Dr. D’Souza with a plan to “repeat EGD in [the] AM” (id.). At 8:20 hours on August 21st, the patient consented, in writing, to a repeat endoscopy to be performed by Dr. D’Souza (Patient’s Chart at 2049). Approximately four hours later, at 12:49 hours on August 21st, Dr. D’Souza performed a repeat upper endoscopy on the patient (the “repeat endoscopy”) (Patient’s Chart at 1321). During the repeat endoscopy, Dr. D’Souza encountered an eight-millimeter ulcer (located along the course of the same visible vessel that Dr. D’Souza treated on the initial endoscopy) which was then “spurting” blood (that is, actively discharging, rather than merely “oozing” it) (Patient’s Chart at 1322). Dr. D’Souza treated the re-bleed with different modalities.⁹ Nonetheless, the repeat endoscopy, like its predecessor, failed to stop the patient from further bleeding in his duodenum. At 1:11 hours on August 22nd, the patient, already resource-depleted from the two prior bleeding episodes, was bleeding again. Not only was he then hemodynamically unstable (his systolic blood pressure was fluctuating between 75 and 86), but he was also exhibiting signs of hypothermia (low body temperature), “shock liver,” and “hemorrhagic shock” (Patient’s Chart at 98). Yet, the intensivists did not call on the surgical service to take the patient’s case. Instead, the intensivists (by nonparty Joshua Samuel, M.D.) called the IR service for embolization, with a proviso that the intensivists would “consult general surgery also to evaluate [the] patient if embolization [was] unsuccessful and [for] further need for possible surgical intervention” (Patient’s Chart at 98 [Dr. Samuel's note timed at 1:11 hours on August 22nd] [emphasis added]). Similarly, Dr. Clores’s successor, the since-dismissed defendant Jennifer Liu-Burdowski, M.D. (“Dr. Liu-Burdowski”), concurred with the intensivists’ recommendation that the IR (rather than the surgical) service should assist with further bleed control. See Patient’s Chart at 356 (“Dr. Liu-Burdowski’s note timed at 18:46 hours on August 21st ["If (the) patient (experiences)…(a) recurrent bleed, (he) will need (an) IR evaluation for embolization. Maximum GI therapy has been attempted."] [emphasis added]). Reflective of the intensivists’ and GI service’s respective recommendations, surgical resident, nonparty Kelsi Hirai, M.D. (“Dr. Hirai”), confirmed in her note, timed at 2:27 hours on August 22nd, that “surgery [was] aware” of the plan for the IR embolization (Patient’s Chart at 73, 80). Dr. Hirai so advised (by telephone) defendant Dr. Docimo who, while staying at home, was the on-call attending surgeon between 18:00 hours on August 21st and 6:00 hours on August 22nd (Patient’s Chart [Dr. Docimo's note timed at 13:34 hours on August 23rd]; Dr. Docimo’s EBT tr at page 22, lines 4-13, page 23, lines 3-7; page 24, lines 17-20; page 25, line 24 to page 26, line 3; page 29, line 18 to page 30, line 2; page 35, lines 3-6). At approximately 4:15 hours on August 22nd, the patient underwent an “empiric embolization of the proximal gastroepiploic artery back into the gastroduodenal artery” by an attending IR radiologist (Patient’s Chart at 1314-1315). By that time, the patient had received a total of ten units of packed red blood cells (“PRBC”) and was in the process of receiving his eleventh unit of PRBC (Patient’s Chart at 285 and 290 [note by resident Jerimarie Pasiliao, M.D., timed at 8:12 hours on August 22nd]; Patient’s Chart [Intake and Output] at 1583-1585).¹⁰ By note timed at 9:25 hours on August 22nd, attending intensivist nonparty Paul Richman, M.D. (“Dr. Richman”), sounded an alarm at the patient’s ever-worsening condition, despite the ongoing intensive resuscitation (an infusion of a total of eleven units of PRBS) and a total of three non-operative interventions for bleeding control (twice by the GE service and once by the IR service) (Patient’s Chart at 290-291 [Dr. Richman's note]). By then, the patient had suffered an “acute kidney injury and shock liver due to [the] massive [GI] bleeding” (Patient’s Chart at 291). The patient’s white blood cell count was “high” at 31,800 (id.). The patient was “anuric” (passing little urine), with a Foley catheter having been placed in the morning of August 22nd (id. at 290). Further, the patient’s liver enzymes were elevated “in the setting of steatosis and probable shock liver” (Patient’s Chart at 278 [Dr. Richman's note timed at 10:06 hours on August 23rd]). Reflective of the patient’s anuria, his total input for August 21st exceeded his output by 30 times (his input was 10709 ml versus his output of 350 ml for that day). As a result, the patient gained 22.7 pounds in weight between August 21st and 22nd (his weight increased from 251.2 pounds to 277.9 pounds in that 24-hour interval), with an additional 9.4 pound weight gain on August 23rd to reach the total weight of 287.3 pounds (id. at 47 and 315). In light of the suspected acute kidney injury, the intensivists turned to the nephrology service for assistance, while the involvement of the GE and surgical services petered out (Patient’s Chart at 279-285 [Dr. Richman's and his resident's, Dr. Pasiliao's, notes]; at 47-52 [nephrology service's notes]). Between August 22nd and 25th, defendant Dr. D’Souza and his resident Dr. Lee-Burdowski followed the patient (Patient’s Chart at 112-115). Dr. D’Souza stopped seeing the patient after August 25th when he went off service. Further, at approximately 17:00 hours on August 22nd, and again at approximately 16:00 hours on August 23rd, defendant Dr. Sasson (who ultimately succeeded Dr. Docimo as the on-call surgeon) saw the patient either alone or with his resident, Michael Hung, D.O. (“Dr. Hung”) (Patient’s Chart at 63, 72, and 167 [Dr. Hung's notes]). Dr. Sasson concurred with the intensivists’ plan to continue transfusing the patient to reach the “goal” hemoglobin (Patient’s Chart at 72 and 167 [Dr. Hung's notes]). Dr. Sasson did not see the patient after 16:00 hours on August 23rd when he went off service. Despite the nephrology service’s active participation in the patient’s care, the latter’s renal function continued to decline. By note timed at 10:00 hours on August 26th, attending intensivist Dr. Richman expressed his concerns that: (1) the patient had been “completely anuric overnight”; (2) the patient “received 2 doses [of] Lasix [a diuretic] without result”; (3) the patient’s already elevated creatinine level at 1.9 further increased to 3.1; and (4) the patient appeared “more icteric [jaundiced],” his abdomen was “more distended and tense,” and he had “ascites [excess abdominal fluid] on ultrasound” (Patient’s Chart at 241). Dr. Richman opined that the patient probably had suffered from “acute tubular necrosis and post-shock liver with progressive biliary [cirrhosis] and ascites” (id.). At 12:12 hours on August 26th, a non-contrast CT scan of the patient’s abdomen and pelvis revealed disturbing findings: (1) “new large abdominopelvic ascites”; (2) “suggestion of pancolitis”; (3) “moderate anasarca” (full-body edema); and (4) “bibasilar nodular opacities which may be infectious” (Patient’s Chart at 1308-1309). At 9:24 hours on the following day, August 27th, the patient underwent a repeat non-contrast CT scan of his abdomen and pelvis. The repeat CT scan found: (1) a “redemonstration of pancolitis”; (2) a “mild dilatation of proximal small bowel loops with probable wall thickening representing nonspecific enteritis and possible ileus”; (3) a “relatively stable moderate to large abdominopelvic simple fluid attenuating ascites”; and (4) the previously documented “bibasilar nodular opacities” (Patient’s Chart at 1306-1307). Also on August 27th, the patient underwent two sessions of paracentesis (removal of the peritoneal fluid) (one session in the morning, and the other session in the afternoon). The removed fluid grew E. coli bacteria. Despite the subsequent infusion of multiple antibiotics to fight the infection (as well as of multiple pressors to keep the patient’s heart pumping in order to sustain the increased circulatory load), he died in the morning of August 31st without even starting on his first dialysis. The certificate of his death listed “cardiac failure” as the immediate cause of his death (with the onset of thirty minutes before his death) due to, or as a consequence of, “septic shock” and “bacterial peritonitis” (in each instance, with the onset of two days before his death). The patient’s sister, as the administrator of his estate, brought this action against, among others: (1) attending gastroenterologist Dr. D’Souza; (2) attending surgeons Dr. Docimo and Dr. Sasson; and (3) Surgical Associates as the surgeons’ employer (collectively with Dr. Docimo and Dr. Sasson, the “surgery practice defendants”). The plaintiff’s claims, as limited by way of her opposition papers, sound in medical malpractice and wrongful death. After discovery was completed and a note of issue was filed, the instant motions were served. On November 5, 2021, this Court heard oral argument and reserved decision. Discussion In the medical malpractice context, “[a] defendant physician seeking summary judgment…bears the initial burden of establishing, prima facie, either that there was no departure from good and accepted medical practice or that any alleged departure did not proximately cause the plaintiff’s injuries.” Bowe v. Brooklyn United Methodist Church Home, 150 A.D.3d 1067, 56 N.Y.S.3d 180 (2d Dept., 2017) (emphasis added). The opposing parties, in turn, “must demonstrate the existence of a triable issue of fact as to the elements on which the defendant has met his or her initial burden.” Id. Where a defendant physician makes a prima facie showing on both elements, “the burden shifts to the plaintiff to rebut the defendant’s showing by raising a triable issue of fact as to both the departure element and the causation element.” Stukas v. Streiter, 83 A.D.3d 18, 918 N.Y.S.2d 176 (2d Dept., 2011) (emphasis added). Dr. D’Souza’s Motion Dr. D’Souza, by way of the affirmation of his expert, Steven Rubin, M.D., a board-certified gastroenterologist (“Dr. Rubin”), made a prima facie showing that he did not depart from the accepted standard of care. Specifically, Dr. Rubin opined that Dr. D’Souza: (1) properly performed the initial and repeat endoscopies; (2) appropriately relied on the IR service for embolization to stop further bleeding; and (3) was not required, on his own, to summon the surgical service which, with the intensivists’ efforts, had already been consulted on the patient’s case. See Dr. Rubin’s Affirmation,

5-6 and 8 (NYSCEF Doc No. 86). Dr. Rubin further opined that none of Dr. D’Souza’s alleged acts or omissions proximately caused the patient’s injuries and death. Id., 9. Thus, the burden shifted to the plaintiff to raise a triable issue of fact as to: (1) whether Dr. D’Souza departed from good and accepted medical practice (the “departure element”); and (2) if so, whether such departures were a proximate cause of the patient’s injuries and death (the “causation element”). See Reustle v. Petraco, 155 A.D.3d 658, 63 N.Y.S.3d 111 (2d Dept., 2017). In opposition, plaintiff failed to raise a triable issue of fact warranting denial of summary judgment to Dr. D’Souza. The problem with plaintiff’s expert opposition is two-fold. First and less importantly, plaintiff’s GE expert confined the scope of Dr. D’Souza’s claimed departures to a single instance; namely, Dr. D’Souza’s allegedly untimely performance of the initial endoscopy. See Physician Affidavit,