Preview:

Vaynman v Maimiondes Med. Ctr.
2003 NY Slip Op 30213(U)
September 25, 2003
Supreme Court, Kings County
Docket Number: 15316/97
Judge: David Schmidt
Republished from New York State Unified Court
System's E-Courts Service.
Search E-Courts (http://www.nycourts.gov/ecourts) for
any additional information on this case.
This opinion is uncorrected and not selected for official
publication.




[* 1]
At an IAS Term, Part 47  of the Supreme
Court of the State of New York, held in and
for the County of Kings, at the Courthouse,
at Civic Center, Brooklyn, New York, on the
day of September, 2003
P R E S E N T :
HON. DAVID I. SCHMIDT,
                                                                                            Justice.
Felix                                                                                       as Guardian Ad Litem for plaintiff,
NOVOSYOLOVA, and FELIX VAYNMAN,
Plaintiff,
against                                                                                     Index No. 1531 6/97
MEDICAL CENTER,
PETRA                                                                                       M.D. and DAVID                        M.D.,
                                                                                                                                  Papers Numbered
Notice of                                                                                   to Show Cause/
Motion and
Affidavits (Affirmations) Annexed                                                                                                 8-9
Opposing Affidavits (Affirmations)                                                                                                10-20
Reply Affidavits (Affirmations)                                                                                                   21.22
                                                                                            Affidavit (Affirmation)
Other
Upon the foregoing papers, defendant Maimionides Medical Center (Maimionides)
moves, pursuant to CPLR 321 2, for summary judgment dismissing plaintiffs’ action against
it. Defendant David L. Masel, M.D. (Dr. Masel) moves for summary judgment dismissing




[* 2]
                                      plaintiffs’ action against him. Plaintiffs cross-move, pursuant to 22 NYCRR                                                                              130- 1. 1
for an                                imposing sanctions against Dr. Masel and Dr. Gurtner’s attorney.
                                                                                                                                    Background Facts
                                      Or: February 19, 1995, plaintiff Galina Novosyolova collapsed                                                                                            was transported
                                      to  Coney Island Hospital by  ambulance.   Upon arriving at Coney Island Hospital,
Ms.                                   was admitted to the emergency room and examined by a Dr. Jarolinu.
Dr.                                   nu  determined  that  Ms.  Novosyolova  was  unresponsive  and  requested  a
                                      consultati   by a neurosurgeon.  Ms. Novosyolova was then examined by Dr. A. Pilch, a
                                      physician at Coney Island Hospital, who diagnosed Ms. Novosyolova as having suffered a
brain                                 which caused a Grade V subarachnoid hemorrhage.
                                      the severity of Ms. Novosyolova’s condition, Dr. Pilch determined that Coney
                                      Island Hospital lacked the facilities necessary to treat the patient and sought to have her
                                      to Maimonides. Accordi                                                                        Dr. Pilch contacted Dr. Masal, a neurosurgeon
associatec with a private medical                                                                                                   with admitting privileges at both Coney Island
Hospital and Maimonides. After disc                                                                                                 the matter with Dr. Pilch, Dr. Masal                                         to
                                      have Ms. Novosyolova transferred  o Maimonides.  Thereafter, Ms. Novosyolova was
                                      transported to  Maimonides via  ambulance and admitted to  the emergency room  at
                                      at approximately                                                                              p.  on February 19,1995. It is undisputed that Dr. Masel
signed                                Novosyolova’s medical chart as the accepting physician for the transfer to
es .
2




[* 3]
Upon her arrival at Maimonides, Ms. Novosyolova was attended to by Lawrence
Farago,                                                                                 a second-year resident employed by Maimonides. At approximately   a.m.
on February 20,1995, Dr. Masel examined Ms. Novosyolova and ordered a fluid challenge
test due                                                                                                                                                  fact that her blood pressure was low. Dr. Masel also                                                                                                                                                                                            an angiogram
                                                                                                                                                          that Ms. Novosyolova was scheduled to undergo based upon his belief that she would not
                                                                                                                                                          survive the procedure due to her low blood pressure. Although Dr. Masel continued to be
                                                                                                                                                          listed as the admitting physician on Ms. Novosyolova’s medical chart, the record before the
court                                                                                                                                                                                                                                                   that the fluid challenge test was the only treatment which Dr. Masel
                                                                                                                                                          to Ms. Novosyolova during the course of her stay at Maimonides.
                                                                                        At approximately                                                                                                                                                                                                                              on February 20,1995, Ms. Novosyolova was transferred
from the                                                                                                                                                                                                                                                room to the pulmonary intensive care unit at Maimonides. Between
                                                                                                                                                          February 20 and March 3 1,1995, Ms. Novosyolova remained at Maimonides under the care
                                                                                                                                                          of defendant Petra Gurtner, M.D. (Dr. Gurtner). Although Dr. Gurtner retained privileges
at Maimo                                                                                                                                                                                                                                                it is undisputed that she was not employed by the hospital but, rather, was
                                                                                        with the same private medical                                                                                                                                                                                                                                                                        as   Masel   March  31.
Ms. Novosyolova was transferred lrom Maimonides to New York University Medical
Center.  A Maimonides Physician Attestation Form generated on April 6,  1995 listed
Dr. Masel as Ms. Novosyolova’s                                                          and discharging physician. However, Dr. Masel
did not sign this form.
3




[* 4]
April 3,1995, Ms. Novosyolova underwent a cerebral angiogram and clipping of
the right superior hypophyseal artery aneurysm at                                                Medical Center. On May 12,1995,
Ms. Novosyolova was transferred to a                                                             nursing facility. Presently, Ms. Novosyolova
resides at home with the assistance of a 24-hour-a-day health aide.
imately, Ms. Novosyolova and her husband Felix Vaynman (plaintiffs) brought the
instant medical malpractice action against Dr. Masel, Dr. Gurtner, and Maimonides.
Maimonides and Dr. Masel now                                                                     separately for summary judgment dismissing
plaintiffs’ action against them.
Against
In moving to dismiss plaintiffs’ action against it, Maimonides points to the undisputed
fact that it did not employ Dr. Masel or Dr. Gurtner. Under the circumstances, Maimonides
reasons that it cannot be held liable for any malpractice that might have been committed by
these privnte attending physicians. In the alternative, Maimonides argues that, even if it can
be held responsible for the acts or omissions of Dr. Masel or Dr. Gurtner, there is no basis
for plaintiffs’ claims                                                                           Maimonides inasmuch as the care provided
Dr. Gurtner conformed with good and accepted medical practice.  Finally, Maimonides
contends that plaintiffs’ claims against it must be dismissed inasmuch as Ms. Novosyolova’s
injuries were caused solely by a brain aneurysm that occurred before she was admitted to
Maimonides and nothing that Maimonides did or did not do had any effect upon these
injuries.
4




[* 5]
In                                                                                               to Maimonides’ motion, plaintiffs’ argue that Maimonides may be held
liable for                                                                                       Masel and Dr. Gurtner’s alleged malpractice because Ms. Novosyolova did not
enter Mai nonides                                                                                treatment from a specific physician but, rather, was admitted into
Maimonides through its emergency room.  Plaintiffs contend that there are issues of fact
regarding whether or not Dr. Masel and Dr. Gurtner’s treatment of Ms. Novosyolova
with good and accepted medical practice and whether their alleged malpractice
caused                                                                                           injuries to Ms. Novosyolova. Finally, plaintiffs argue that, irrespective of any
on the part of Dr. Masel or Dr. Gurtner, Maimonides is liable for the negligence
of its employee, Dr. Farago. In particular, plaintiffs maintain that Dr. Farago was negligent
in failing to perform an angiogram during the 17 hours between Ms. Novosyolova’s initial
to  Maimonides  and  her  examination by  Dr.  Masel  on  the  morning  of
February 20,1995.
Generally speaking,                                                                              order for a hospital to be liable for the malpractice of
physicians, it must be shown that the physicians performed their services under the hospital’s
control or supervision”                                                                          v Rubinstein, 300                                                                  Here. it is
that neither Dr. Masel nor Dr. Gurtner were employed, supervised, or controlled by
Maimonides.
However, an exception to this general rule has been established in a line of cases
beginning with the Appellate Division, Third-Department’s decision in Mduba v Benedictine
Hosp. (52                                                                                        450).  Specifically, when a patient enters an emergency room
5




[* 6]
treatment from a hospital rather than a specific physician and is ultimately treated by doctors
furnished but not employed by the hospital, the hospital is liable for the malpractice
committed by emergency room physicians.  This line of cases is based upon the principle
that, when a hospital holds itself out to the public offering and rendering hospital services,
patients                                                                                                                                                                          not be bound by “secret limitations contained in a private contract between
the                                                                                               the doctor” (Mduba, 52                                                          at 453).
Here, plaintiffs maintain that the Mduba line of cases is applicable under the facts of
this case. The court disagrees with this contention.  It is true that Ms. Novosyolova was
admitted to Maimonides through its emergency room. It is also true that plaintiffs did not
specifically choose Dr. Masel or Dr. Gurtner to treat Ms. Novosyolova at the time she was
admitted to Maimonides.  However, this is not a case where the patient entered the
emergency room from “off the street” and was treated by doctors furnished by the hospital.
Rather,                                                                                           Novosyolova was transferred to Maimonides from Coney Island Hospital
Dr. Masel was contacted by Ms. Novosyolova’s treating physician at Coney Island Hospital
and                                                                                               accept the transfer                                                             Thus,
at the time Ms. Novosyolova entered the emergency room at Maimonides, her treating
physicians at Maimonides, who were not emergency room doctors, had already been arranged
for and                                                                                           For its part, Maimonides did not have any control over this transfer or input
into which physicians would be treating Ms. Novosyolova once she arrived at Maimonides.
6




[* 7]
Fu                                                                                             Ms. Novosyolova remained at Maimonides for a six-week period during
which time Dr. Gurtner oversaw her treatment. Indeed, Feliks Vaynman acknowledged at
his deposition that he had daily discussions with Dr. Gurtner regarding his wife’s treatment
and condition. In the court’s view, to hold Maimonides vicariously liable                      Dr. Gurtner’s
alleged malpractice over such an extended period would stretch the Mduba doctrine well
beyond    original intent.
there is no basis for plaintiffs’ claim that Maimonides may be liable for Ms.
Novosyolova’s injuries based upon the alleged negligence of Dr. Farago. Plaintiffs claim
that Dr.                                                                                       should have performed an angiogram on Ms. Novosyolova during the 17
hours that he oversaw her treatment.  However, it is clear that Dr. Farago, a second-year
resident, had no such authority.  In fact, Dr. Farago testified that an angiogram had been
scheduled for the morning of February 20, 1995 but it was cancelled on Dr. Masel’s orders.
“A hospit   is sheltered from liability in those instances where its employees follow the
directions of the attending physician                                                          . . . unless that doctor’s orders                                     ‘are so clearly
contraindicated by                                                                             practice that                                                         requires  inquiry into
correctness of the orders’” (Walker v Betancourt, 283                                                                                                                223, 224, quoting Wamey v
237                                                                                            123).  Here, it cannot be said that Dr. Masel’s order to cancel the
angiogram based upon Ms. Novosyolova’ s low blood pressure condition were “clearly
contraindicated.”
the circumstances, plaintiffs’ claims against Maimonides must be dismissed.
7




[* 8]
Against Dr. Masel
Dr. Masel moves for summaryjudgment dismissing plaintiffs’ action against him. In
so  moving,  Dr.  Masel  notes  that  the  only  treatment  which  he  administered  to
Ms. Novosyolova was the aforementioned fluid challenge test due to the fact that her blood
pressure was low. Dr. Masel further argues that ordering this test was appropriate and within
applicable standards of medical care. Under the circumstances, Dr. Masel reasons that there
is no basis for plaintiffs’ claims against him. In support of this argument, Dr. Masel submits
an expert affirmation by James E.O. Hughes, M.D., aphysician licensed to practice medicine
in the State of New York and board-certified in neurological surgery, in which he avers that
the fluid challenge test was appropriate and in accordance with good and
accepted                                                                                                                                                                standards of care given the patient’s low blood pressure at the time.’’
Dr.                                                                                              further  asserts  that                                                 performing  surgery  on  February                                         19  or
February 20, 1995 was appropriate and did not cause Ms. Novosyolova’s condition.”
In opposition to Dr. Masel’s motion, plaintiffs contend that there are factual issues
whether or not Dr. Masel oversaw Ms. Novosyolova’s treatment during the length
of her stay at Maimonides.  In this regard, plaintiffs point out that Dr. Masel admitted
Ms. Novosyolova to Maimonides as attending physician and that Dr. Masel was listed as the
physician on the Maimonides Physician Attestation Form.  Plaintiffs further
argue that there are factual issues regarding whether this treatment departed from good and
accepted                                                                                         of medical practice.  In support of this claim, plaintiffs submit an
8




[* 9]
a board certified neurosurgeon in which it is alleged that an arteriogram
should                                                                                            been performed upon Ms. Novosyolova to check for a vasospasm, that
Ms.                                                                                               condition required intra cranial pressure monitoring and the placement
of a ventricular drain, and that Ms. Novosyolova should have been operated upon within 24
to 48                                                                                             after her admission to the hospital.
The evidence before the court, including Dr. Masel’s affidavit and deposition
testimony  and   Feliks Vaynman’ s deposition testimony, indicates that  Dr.  Masel’s
in the treatment of Ms. Novosyolova was limited to accepting her transfer from
Coney                                                                                             Hospital upon her arrival at Maimonides, ordering a fluid challenge test, and
cancelling an angiogram due to Ms. Novosyolova’s low blood pressure.  Plaintiffs have
failed to demonstrate that this treatment failed to comply with good and accepted medical
standards of care. With respect to the fluid test, Dr. Hughes’ affirmation indicates that this
treatment was appropriate given Ms. Novosyolova’ s low blood pressure condition, a
contention not disputed by plaintiffs’ own expert. Furthermore, while plaintiffs’ expert
maintains  that  Dr.  Masel  was  negligent  in  failing  to  perform  an  angiogram  on
Ms. Novosyolova “within the first 24 to 48 hours” of her arrival at Maimonides, the record
indicates that Dr. Masel handed over treatment of Ms. Novosyolova to Dr. Gurtner
approximately 17 hours after her admission, well before this 24 to 48 hour period expired.
In any evt-nt, the “bare conclusory” allegations made by plaintiffs’ expert are insufficient to
that Dr. Masel’s determination, that Ms. Novosyolova’s low blood pressure
9




[* 10]
condition made it too dangerous to perform an angiogram deviated from accepted standards
of care (Arias v Flushing Hosp. Med. Ctr., 300                                                 610,611). Indeed, plaintiffs’ expert
does not directly address this critical issue.
the fact that Dr. Masel’s name appears on the Maimonides Physician
Attestation Form as the discharging physician is insufficient to raise an issue of fact
regarding whether Dr. Masel oversaw Ms. Novosyolova’s treatment since Dr. Masel did not
sign this f                                                                                    v Valeriona, 259                                       655,656).
                                                                                                                                                      Under the circumstances, plaintiffs’ action against Dr. Masel must be dismissed.
                                                                                                                                                      Cross Motion for  Sanctions
                                                                                                                                                      Plaintiffs cross-move, pursuant to 22 NYCRR 130- 1.1                               1) for sanctions against
                                                                                                                                                      Dr. Masel and Dr. Gurtner’s attorney, Alexander Rosati, Esq., and the law          of Martin,
Clearwater and Bell. In so moving, plaintiffs contend that Mr. Rosati’s December 28,2001
motion                                                                                         sanctions against plaintiffs was a frivolous motion.
Plaintiffs’ cross motion is denied. Given the unusual procedural history of this matter,
the court cannot say that Mr. Rosati’s previous motion seeking sanctions against plaintiffs
based upon their attempt to revive their action against Dr. Gurtner was so “completely
without merit in law” so as to itself warrant the imposition of sanctions (Retina Assocs. of
Is., P.C., v Rosberger, 299                                                                    533,534).
10




[* 11]
Summary
In summary, the court rules as follows: (1)  Maimonides’ motion for summary
judgment dismissing plaintiffs’ action against it is granted; (2) Dr. Masel’s motion for
summary judgment dismissing plaintiffs’ action against him is granted; and (3) plaintiffs’
cross                                                                                        for sanctions is denied.
Th’s constitutes the decision and order of the court.
J.  S .                                                                                      SCHMIDT
11

Download 2003_30213.pdf

New York Law