The following papers, numbered 1-69, were read and considered on (1) the motion of HealthQuest Systems, Inc., and Putnam Hospital Center which is for summary judgment dismissing the complaint insofar as asserted against them [Seq 4] and (2) the motion of Dr. Antoinette Berkeley-Gsegnet which is for summary judgment dismissing the complaint insofar as asserted against her [Seq 5]. PAPERS NUMBERED Notice of Motion (Seq 4)/ Statement of Material Facts/ Attorney Affirmation in Support/ Exhibits A-O1 1-22 Affirmation in Opposition/ Exhibit A-P/Statement of Material Facts 23-44 Affirmation in Reply/Exhibit P 45-46 Notice of Motion (Seq 5)/ Attorney Affirmation in Support/Exhibits A-N/ Memorandum of Law/ Expert Affidavit in Support/ Statement of Material Facts 47-69 DECISION AND ORDER This is an action to recover damages for medical malpractice and wrongful death. Following complaints of, inter alia, recurrent urinary tract infections, the decedent Janet Verrino presented to Defendant Dr. Antoinette Berkeley-Gsegnet in September 2016. At the time, the decedent was seventy-nine years old and reported a past medical history of, among other things, glaucoma, emphysema, and chronic obstructive pulmonary disorder (COPD). The decedent had also been previously diagnosed with breast cancer approximately two years prior and underwent lumpectomy with no further treatment. Two weeks after the initial consult with Dr. Berkeley-Gsegnet, the decedent underwent a cystoscopy, a procedure where the doctor can examine the lining of the bladder using a cystoscope, and, thereafter, a CT scan, which revealed the presence of a mass in the bladder suspicious for malignancy. A cystoscopy and transurethral resection of the bladder (TURBT) was recommended to give the doctor an opportunity to examine the bladder and tumor and, if possible, resect (remove) the tumor or a part thereof for pathological study. In light of the decedent’s medical history, a pre-operative medical clearance of the decedent was required and received, following the decedent’s evaluation by a pulmonologist. On November 17, 2016, the TURBT procedure was performed at Defendant Putnam Hospital Center, portions of the tumor were removed, and a three-way Foley catheter was inserted into the decedent’s bladder. Constant or Continuous Bladder Irrigation (CBI) was ordered to avoid post-surgical blood clots from forming and blocking the flow of urine out of the bladder by providing an ongoing continuous flow of saline solution into the bladder. Following the completion of the TURBT procedure at approximately 1:17pm, the decedent was transferred to the post-anesthesia care unit (PACU) at Putnam Hospital where she reported shortness of breast and abdominal discomfort. Approximately two hours later, the decedent was transferred to recovery. Throughout, CBI was ongoing. At approximately 6:00pm, five hours post-surgery, the decedent was experiencing elevated respiratory rate and complained of shortness of breath and abdominal distention. The decedent was observed to be breathing with increased effort and, following a physical examination by the Hospitalist, the decedent was diagnosed as suffering acute postoperative respiratory failure superimposed on chronic respiratory failure secondary to COPD exacerbation. Shortly thereafter, the decedent was transferred to the ICU under the care of an Intensivist, who found the decedent to be in severe distress, with difficulty breathing, and severe abdominal fullness and distention. Soon thereafter, the decedent was intubated due to her ongoing respiratory distress. At approximately 10:00pm that evening, a nurse noted that CBI was ongoing, but that the output was less than the infused volume. At 11:30pm, CBI was discontinued and it was determinated that the decedent had received 15,000 ml of CBI input but had only excreted 5,400 ml of CBI. At 1:30am, on November 18, 2016, a bedside cystogram was performed by the urologist on call and a bladder perforation was confirmed. The tip of the Foley catheter perforated through the bladder into the retroperitoneal cavity. At that time, the decedent was transferred to the Intensive Care Unit (ICU) due to her worsening respiratory status, possible septicemia, metabolic acidosis and low blood pressure. Soon thereafter, the decedent’s condition continued to worsen and, by November 23, 2016, the decedent was in multi-organ failure with chronic COPD, respiratory failure and acute kidney injury. The next day, dialysis, tube feeding, and BiPap were discontinued and the decedent was started on pallative care. The decedent passed away on the morning of November 26, 2016. The Plaintiff, the decedent’s husband and Administrator of the Estate of the decedent, commenced this action to recover damages for negligence and wrongful death on November 16, 2018. Following joinder of issue, the action insofar as asserted against the named defendant Dr. Larry Sandler, was discontinued and the caption amended accordingly. Following the completion of discovery and the filing of a note of issue, the remaining named defendants have moved, separately, for summary judgment and dismissal of the complaint insofar as asserted against them. The Plaintiffs has opposed the motion of the Defendants HealthQuest Systems, Inc., and Putnam Hospital Center (hereinafter the Hospital Defendants), but has declined to oppose the motion of the Defendant Dr. Antoinette Berkeley-Gsegnet (NYSCEF Doc. 117). The merits of each motion will be addressed in turn. “In order to establish the liability of a physician for medical malpractice, a plaintiff must prove that the physician deviated or departed from accepted community standards of practice, and that such departure was a proximate cause of the plaintiff’s injuries” (Stukas v. Streiter, 83 AD3d 18, 23 [2d Dept 2011]; see Assunta v. Rubin, 189 AD3d 1321, 1322-1323 [2d Dept 2020]). “A defendant seeking summary judgment in a medical malpractice action must make a prima facie showing either that he or she did not depart from the accepted standard of care or that any departure was not a proximate cause of the plaintiff’s injuries” (M.C. v. Huntington Hosp., 175 AD3d 578, 579 [2d Dept 2019]; see Assunta v. Rubin, 189 AD3d at 1323; Stukas v. Streiter, 83 AD3d at 24). “Once this showing has been made, the burden shifts to the plaintiff to rebut the defendant’s prima facie showing with evidentiary facts or materials so as to demonstrate the existence of a triable issue of fact” (Assunta v. Rubin, 189 AD3d at 1323; see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; Stukas v. Streiter, 83 AD3d at 30). A. HealthQuest Systems, Inc., and Putnam Hospital Center Here, in support of their motion for summary judgment dismissing the complaint insofar as asserted against them, the Hospital Defendants submitted, inter alia, an expert affidavit of Dr. Louis Brusco. Dr. Brusco is Board Certified in Internal Medicine and Anaesthesiology with a Certificate of Special Qualification in Critical Care. Dr. Brusco affirmed that, upon review of the Plaintiffs’ bill of particulars, the 2016 medical records and films from Putnam Hospital Center, the deposition testimony of the Plaintiff and the non-party children of the decedent, the deposition testimony of Defendant Dr. Berkeley-Gsegnet, Dr. Anil Bhat, and Catherine Lewis, RN, he had reached certain opinions with respect to the care and treatment rendered to the decedent and that those opinions were within a reasonable degree of medical certainty. Dr. Brusco concluded, to a reasonable degree of medical certainty, that “the [Hospital Defendants] acted in accord with good and accepted medical practice in the care and treatment of the decedent as her symptoms manifested between November 17, 2016, and November 18, 2016, and during her critical care management thereafter, up to her time of death” (NYSCEF Doc 76, 10). He further concluded that the Hospital Defendants’ “response to the decedent’s postoperative condition, including the timeliness transfer to the ICU, the determination to intubate, cessation of CBI and obtaining the necessary consults was appropriate” (id.). Finally, Dr. Brusco concluded that “any alleged acts or omissions on the part of these defendants were not the proximate cause of the injuries alleged herein” (id.). Upon summarizing the decedent’s care and treatment, Dr. Brusco addressed the discrepancy of the decedent’s fluid input and output on November 17, 2016, as documented within the records and acknowledged by the Defendants in their respective depositions. It was Dr. Brusco’s opinion that the Hospital Defendants employed reasonable skill and care in the medical management of the decedent post-operatively “upon appreciation of the extent of the discrepancy in the decedent’s CBI input and output” (id. at 28). Dr. Brusco affirmed that, once the extent of the discrepancy [in input and output] was appreciated, intensivist Dr. Gupta stopped the CBI, put the Foley catheter to gravity, and obtained an urology consult in accordance with the standard of care. Finally, Dr. Brusco also concluded that the decedent’s bladder perforation and CBI imbalance did not account for the decedent’s post-operative symptoms of respiratory distress (id. at 31). He affirmed that “CBI fluid entering into the retroperitoneal cavity would not have caused the elevated respiratory rate and heart rate noted post-operatively. The decedent’s respiratory distress following the bladder surgery would have been expected had that fluid leaked into the abdomen, or, extravasated into the intraperitoneal space” [however,] “the perforation and leakage of fluid into the retroperitoneum was not causally related to the patient’s respiratory distress” (id. at 34). The Hospital Defendants’ submissions of Dr. Brusco’s expert affidavit, together with the submissions of, inter alia, the pleadings, bill of particulars, medical records, operative report, radiology report, and the transcripts of the depositions of Dr. Berkeley-Gsegnet, Dr. Bhat, Nurse Lewis, and Plaintiff Andrew Verrino, was sufficient to establish, as a matter of law, that the Hospital Defendants did not depart from the accepted standard of care in their treatment and care of the decedent and that any alleged departure from the accepted standard of care was not a proximate cause of the decedent’s injuries. Indeed, Dr. Brusco specifically affirmed as much. Once this prima facie showing has been made, the burden shifts to the plaintiff to rebut the prima facie showing with evidentiary facts or materials so as to demonstrate the existence of a triable issue of fact. In opposition to the Hospital Defendants’ motion, the Plaintiffs submitted, inter alia, the physician affidavit of Dr. Bruce D. Charash. Dr. Charash, who is Board Certified in Internal Medicine, a Fellow of the American College of Cardiology, Board Certified in Post-Acute and Long-Term Care, and Board Certified in Preventative Medicine in the subspecialty of Addition Medicine, affirmed that he had reviewed, inter alia, the decedent’s medical records, films from the Defendant Hospital, deposition transcripts of the Plaintiff and Plaintiff’s children, Dr. Berkeley-Gsegnet, Dr. Bhat, and Nurse Lewis, as well as the Hospital Defendants’ motion and the expert affidavit of Dr. Brusco. He affirmed that, based upon his review of the above materials, together with his medical education, training and experience, he had reached certain opinions regarding the care and treatment rendered to the decedent and that those opinions were to a reasonable degree of medical certainty. Specifically, Dr. Charash affirmed that the Hospital Defendants departed from good and accepted medical practice in the care and treatment of the decedent between November 17, 2018, and November 18, 20182, during the time of the decedent’s critical post-operative care and that such departures from good and accepted medical practice and care were the competent producing cause of the decedent’s multiple organ failure, including respiratory and renal failure, which in turn caused the Plaintiff to give the decedent pallative care at the Defendants’ hospital prior to her death on November 26, 2016 (NYSCEF Doc 119, at 10). He affirmed that, as is the case with all surgical procedures, and in particular those involving the use of CBI: “the applicable post-operative standard of care then and there existing requires that a patients’ fluid volume — the amount of fluid going into a patient and the amount of fluid coming out of the patient — remain stable and balanced. Fluid imbalance, in particular excessive fluid retention by a patient immediately following surgery, is extremely dangerous and can be fatal. Consequently, standard of care requires that post-surgical patient have the volume of the fluids they receive, whether by mouth, intravenous, or via CBI, and the volume of fluid removed from or excreted by the patient, whether by urine, (in the case of a patient with a catheter, urine output is via a catheter), or otherwise must be carefully recorded and constantly monitored by hospital nursing staff and disseminated to all attending physicians” (id. at 16). Here, despite the decedent’s complaints of shortness of breath and abdominal discomfort and distention shortly after the conclusion of the procedure at 1:21 pm on November 17, 2016, it was not until 6:41pm, more than five hours later, that Dr. Bhat testified that he saw the decedent, noted that she was in severe distress, was having difficulty breathing and that she was experiencing severe abdominal fullness and distention, that the decedent was transferred to the ICU. He testified that, at that time, no one had reported what the decedent’s input and output volumes had been nor was there anything charted by the nursing staff reflecting the decedent’s inputs and outputs, even though CBI was ongoing the entire time. At approximately 10:00pm that evening, after the decedent had to be intubated, the nursing staff noted that the ongoing CBI output was significantly less than the infused volume and that the decedent’s abdomen was distended. Nevertheless CBI was not discontinued until approximately 11:30pm that evening, more than 10 hours after it had been started. The records reflect that approximately 15,000mls of CBI fluid had been infused during that time, and the decedent had only excreted or removed 5,400 mls of fluid. A few hours later, a bedside cystogram confirmed a bladder perforation. According to Dr. Charash, the Hospital Defendants departed from the standard of care and accepted medical practice by failing to properly measure, monitor, record, disseminate and/or report the input and output fluid volumes for the decedent and that those departures were the competent producing cause of the decedent’s multiple organ failure, including respiratory and renal failure, which in turn caused the decedent’s family to give the decedent pallative care prior to her death (id. at 38). With respect to the expert medical opinions offered by Dr. Brusco, Dr. Charash noted that Dr. Brusco had appeared to limit his expert opinion to the Hospital Defendants’ conduct after the input and output discrepancy was revealed and not on the conduct of the Hospital Defendants in the time prior to that discovery. Dr. Brusco acknowledges that there was a significant discrepancy in fluids, but does not address how that discrepancy came to be or its significance, and then moves on to find that, once the extent of the discrepancy was appreciated, the Hospital Defendants acted appropriately (id. at 40-41). Dr. Charash also affirmed that he respectfully, but firmly, disagreed with Dr. Brusco’s assertion that the bladder perforation and leakage of CBI fluids into the retroperitoneum did not account for or cause the decedent’s post-operative symptoms of respiratory distress. “Excessive fluid in the amounts experienced by the decedent extravasating into the retroperitoneum can, and in my opinion, to a reasonable degree of medical certainty, did significantly exacerbate the breathing difficulty of the decedent while in the PACU; while in recovery and while in the ICU, ultimately resulting in her respiratory failure (id. at 43). Dr. Charash further affirmed that the decedent’s known pre-existing COPD made the timely and thorough monitoring of fluid balance and volume critical to avoid fluid overload, causing respiratory failure, kidney injury, and renal failure (id. at 44). Accordingly, the conclusion of Dr. Charash was that the Hospital Decedents’ failure to timely and properly monitor, record and disseminate the fluid going into and coming out of the decedent was a departure from accepted medical practice and that such departure was the competent producing cause of the decedent’s multiple organ failure, leading to respiratory and renal failure, and causing the decedent’s death. “Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions” (Hutchinson v. New York City Health & Hosps. Corp., 172 A.D.3d 1037, 1040 [2d Dept 2019] [internal quotation marks omitted]; see Mehtvin v. Ravi, 180 AD3d 661, 664 [2d Dept 2020]). “That the experts disagreed ‘presented a credibility battle between the parties’ experts, and issues of credibility are properly left to a jury for its resolution’” (B.G. v. Cabbad, 172 AD3d 686, 688 [2d Dept 2019], quoting Barbuto v. Winthrop Univ. Hosp., 305 AD2d 623, 624 [2d Dept 2003]). Here, there can be no question that, given the submissions of competing and contradictory experts’ affidavits, questions of fact exist which preclude an award of summary judgment in favor of the Hospital Defendants. Accordingly, the motion of the Hospital Defendants which is for summary judgment dismissing the complaint insofar as asserted against them must be denied. B. Dr. Antoinette Berkleley-Gsegnet Dr. Berkeley-Gsegnet established her prima facie entitlement to judgment as a matter of law by submitting, inter alia, the decedent’s medical records and the affidavit of her expert, Board Certified in urology, who opined that the care and treatment Dr. Berkleley-Gsegnet rendered to the decedent was in accordance with good and accepted standards of medical care and that nothing done or failed to be done by Dr. Berkleley-Gsegnet was a substantial factor in causing the decedent’s condition to worsen or the decedent’s death (see Mestri v. Pasha, __ AD3d__, 2021 NY Slip Op 05329 [October 6, 2021; 2d Dept]; Wiater v. Lewis, 197 AD3d 782 [2d Dept 2021]; Jacob v. Franklin Hosp. Med. Ctr., 188 AD3d 838, 840 [2d Dept 2020]). The Plaintiffs, by letter dated and e-filed with the Court on July 23, 2021, indicated that they would not oppose the motion of Dr. Berkleley-Gsegnet (NYSCEF Doc. 117). Accordingly, the Plaintiffs having declined to rebut Dr. Berkleley-Gsegnet’s prima facie showing, Dr. Berkleley-Gsegnet’s motion for summary judgment dismissing the complaint insofar as asserted against her is granted. Accordingly, based on the foregoing, it is hereby ORDERED that the motion of the Defendants HealthQuest Systems, Inc., and Putnam Hospital Center is denied; and it is further ORDERED that the motion of the Defendant Dr. Antoinette Berkleley-Gsegnet is granted, the complaint insofar as asserted against her is dismissed, and the caption is amended to remove her as a named Defendant; and it is further ORDERED that the remaining parties are directed to appear before this Court on November 9, 2021, at 9:30am for the Status Conference. The foregoing constitutes the Decision and Order of the Court. Dated: October 27, 2021
