The Bronx complaint of this action sets forth causes of action sounding in medical malpractice, lack of informed consent asserted on behalf of the complainant woman and a derivative claim asserted on behalf of her spouse. It is claimed that the accused parties negligently departed from good and accepted standards of medical/surgical/anesthesia care and treatment when the complainant woman was admitted to the hospital for a scheduled right total hip replacement due to osteoarthritis and lack of blood flow on the right hip, and failed to inform her of the risks and complications associated with the surgery, anesthesia, and treatment with an anti-coagulant drug. It is claimed that due to the negligence of the orthopedic surgeon, the anesthesiologist and the hospital, the woman was caused to suffer extensive bleeding in the area of the lumbar plexus and to sustain serious injury and nerve damage resulting in right lower extremity weakness, foot drop, and numbness due to the failure of the accused parties to properly and timely treat her condition. It is further claimed that the accused doctors and hospital failed to properly provide information concerning the risks, benefits and complications to her to enable her to give an informed consent. The orthopedic surgeon performed the hip replacement, the anesthesiologist administered the spinal anesthesia for the surgery, and postoperative placed a lumbar plexus block and peripheral nerve block.
The moving doctors and hospital seek an order granting summary judgment dismissing the complaint asserted against them on the basis they did not deviate from good and accepted standards of care during the care and treatment and admission of the woman which proximately caused the claimed injuries she suffered.
The accused orthopedic surgeon and anesthesiologist individually submitted their attorney’s affirmation; the affidavit, copies of the summons and complaint, answer, amended answer; the complainants’ verified bill of particulars; and copies of the transcripts of the examinations before trial It is noted that the deposition transcripts of the two doctors are not in admissible form and are not accompanied by an affidavit pursuant to the Civil Practice Laws and Rules, and therefore, are not considered.
The accused Brooklyn hospital also submitted an attorney’s affirmation; copies of the pleadings and the woman’s verified bill of particulars; certified copy of the woman’s hospital record; expert affirmation of the anesthesiologist and copies of the transcripts of the examinations before trial of the orthopedic surgeon. It is noted that the deposition transcripts of the orthopedic surgeon and the anesthesiologist are not in admissible form and therefore, are not considered.
The orthopedic surgeon opines with a reasonable degree of medical certainty that his care and treatment of the woman was well within the standard of care. He states he took a proper history during a telephone call with her, ascertained that she had hypertension for which she was taking medication, she had a previous knee surgery, she had no allergies, and he advised her that she would have to obtain medical clearance with her internist and have preoperative testing at the hospital. He dictated a history and physical note and indicated she was taking medications for her blood pressure. He states all of his actions demonstrate that he took a proper pre-surgical medical history. He further avers that he is not an anesthesiologist, and did not direct the anesthesiologist to place the psoas block, he did not have a role in the placement of the needle either for spinal anesthesia or the catheter for the psoas block. He states that it is the standard of care to place all patients undergoing a total hip replacement on anticoagulation therapy postoperatively to prevent the possibility of deep vein blood clot, and the anesthesiologist was aware of that. He further states it is the standard of care to place a psoas block for post-operation pain management in a patient receiving postoperative anticoagulation therapy. He discussed the risks of surgery with the woman as is his custom and practice, and advised of the risks of blood clot, lung artery blockage, death, infection, dislocation, and fracture, forming of bone tissues outside the skeleton, leg length inequalities, alignment issues, neurovascular injury, pain and stiffness. The orthopedic surgeon states he saw the woman every day in the hospital and her first complaint that she was unable to move her right lower extremity. He states his treatment was appropriate as he reviewed x-rays of the hip and a CT scan of the abdomen and pelvis, ordered pain medication and physical therapy. As an orthopedist, he states, he does not treat neurological problems such as foot drop, and the next day, called in a neurologist to evaluate her. He states he timely addressed the neurological complaint and did not fail to institute emergency measures, did not take improper corrective measures; and called in a specialist.
Based upon the foregoing, it is determined that the orthopedic doctor has not demonstrated legitimate entitlement to summary judgment dismissing the complaint. He does not state that he advised the woman of the possibility of bleeding from the therapy and thus that she received proper informed consent concerning the use of anticoagulant therapy. He opines that he timely and properly addressed the neurological complaint and did not fail to institute emergency measures, but does not state what the proper standard of care is for the neurological problem which the woman was experiencing and the time frame for such treatment, nor what his emergency measures were. Nor has he submitted the affirmation from an expert neurologist in support of his claim that his treatment of the woman’s neurological condition was timely and appropriate and the proper emergency measures to be taken. Further, he does not set forth the standard of care for a patient taking anticoagulation therapy and whether this standard was followed and the results of such treatment and testing. He does not state the proximate cause of the patient’s neurological injury and does not rule out that such injury was not caused by the surgery he performed, or that it was caused by any acts or omissions on behalf of the anesthesiologist.
The anesthesiologist has submitted the affirmation of his expert anesthesiologist who sets forth that he is a physician licensed to practice medicine in the State of New York and is board certified in Anesthesiology. Based upon his review of the relevant pleadings and bill of particulars, it is his opinion that he has become fully conversant with the allegations and opines with a reasonable degree of medical certainty that the care and treatment rendered by the accused anesthesiologist at all times comported with good and accepted medical practice without any deviation or departures there from, and that none of the care provided by the accused anesthesiologist contributed in any manner to the woman’s alleged personal injuries.
Based upon the foregoing, it is determined that the accused anesthesiologist has not demonstrated legitimate entitlement to summary judgment dismissing the complaint against him on the issue of liability and proximate cause as he has not addressed the issue of lack of informed consent and has not opined whether or not informed consent was provided to the woman concerning her anesthesia choices, risks, benefits and complications.
The hospital has submitted the affirmation of a physician duly licensed to practice medicine in the State of New York, board certified in neurology. It is his opinion with a reasonable degree of medical certainty that the care and treatment rendered at the hospital by its employees did not depart from good and accepted standards of medical care and treatment and there is no action, treatment, diagnosis, finding, study, recommendation, or care provided, or omission, which was the cause of, or a significant contributing factor to, any injury alleged to have been sustained by the woman.
It is hospital neurologist’s opinion with a reasonable degree of medical certainty that the staff of the hospital carried out all physician orders in a timely and appropriate manner; none of the orders made by the woman’s physicians were contraindicated by normal practice; the woman was appropriately monitored and observed; the chart is thorough and well-documented; the woman’s symptoms and complaints were timely and appropriately heeded and were relayed to her physicians in a timely manner and responded to timely and appropriately by the hospital; a neurologist was appropriately called and appropriate diagnostic studies were performed; and that none of the alleged acts or omissions of the hospital proximately caused or contributed to the woman’s injuries.
Based upon the foregoing, it is determined that the hospital has demonstrated a legitimate entitlement to summary judgment dismissing the complaint as asserted against it based upon the neurologist’s opinion.
There has been no affidavit submitted by the complainants to rebut the neurologist’s opinion demonstrating legitimate entitlement to summary judgment dismissing the complaint as asserted against the hospital on the basis that the hospital and its employees did not depart from accepted standards of care and that none of the alleged acts or omissions proximately caused or contributed to the woman’s injuries. Accordingly, the motion by the hospital for summary judgment dismissing the complaint is granted and the complaint is dismissed with prejudice as asserted against the hospital.
A doctor states he is a physician duly licensed to practice medicine in the State of New York and is a diplomat of the American Board of Anesthesiology and board certified by the American Academy of Pain. It is his opinion to a reasonable degree of medical certainty that during the hip replacement procedure, there were complications as a result of the negligence of the accused doctors which caused a bleed around the lumbar plexus which caused the woman to sustain a nerve root injury causing a foot drop, and there were numerous medical malpractice which caused the devastating injuries to the woman.
Based upon the foregoing, it is determined that the anesthesiology diplomat has raised factual issues concerning whether the woman was on an anticoagulant drug prior to surgery creating factual issues with regard to both accused doctors’ care and treatment, and whether she was taking the anticoagulant drug and when it was started. The anesthesiology diplomat further opines that the accused orthopedic doctor, as leader of the surgical team, deviated from the standard of care concerning positioning of the woman, proximately causing her injuries. Although a further affirmation has been submitted in the Reply papers in an attempt to counter some of the anesthesiology diplomat’s opinions, summary judgment may not be awarded where the parties adduce conflicting opinions of medical experts; when experts offer conflicting opinions, a credibility question is presented requiring a jury’s resolution. Additionally, an affirmation received in a Reply deprives the woman from responding to such affirmation, and all arguments in support of the doctors’ motion should have been made in the moving papers to establish legitimate entitlement to summary judgment. There are further factual issues concerning whether the level of the placement of the catheter could in fact proximately cause the injuries claimed. Accordingly, the motion by the orthopedic doctor, and cross motion by the anesthesiologist for an order granting summary judgment dismissing the complaint as asserted against them are denied.
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