SHORT FORM ORDER

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NASSAU

Present: HON. RANDY SUE MARBER

JUSTICE TRIAL/IAS PART 23

MAGART BADE

Plaintiff Index No. : 017429/07Motion Sequence...Motion Date.. .10/13/09-against-

HENRY PARTRIDGE, IHEANYICHUKWUAJA-ONU and SOUTH NASSAUCOMMITIES HOSPITAL

Defendants.

Papers Submitted:

Notice of Motion....... ............ ......

........ ... ... .... .....

Notice of Motion................................................Affirmation in Opposition...... ............

............. ....

Reply Affirmation...............................................Reply Affirmation...............................................

Upon the foregoing papers, the motion by the Defendant, Henr Partridge for

summary judgment dismissing the complaint is DENIED. The motion by the Defendant

South Nassau Communities Hospital, for summary judgment dismissing the complaint is

GRANTED in part and DENIED in part.

This is an action for medical malpractice. In early July 2006, the Plaintiff

Margaret Bade, began to experience nausea, vomiting, fever, and pain in the abdominal

regIOn. After the Plaintiff was treated in the emergency room, her symptoms subsided.

However, in September, the Plaintiffs symptoms returned, her urine became dark, and her

stool became white. After visiting her primary care physician, Dr. Christopher Gee, the

Plaintiff was referred to Dr. Philp Moskowitz, a gastroenterologist, which is a physician who

specializes in diseases ofthe stomach and intestines. The Plaintiff had seen Dr. Moskowitz

the year before in order to have a colonoscopy?

The Plaintiff was examined by Dr. Moskowitz on September 29, 2006. Based

upon his examination, Dr. Moskowitz ' impression was that the Plaintiff was suffering from

cholecystitis " or inflammation ofthe gallbladder. Dr. Gee had already ordered an imaging

diagnostic procedure, known as a "HIDA scan " to examine her gallbladder and the ducts

connecting it with other organs.3 However, given the Plaintiffs history, Dr. Moskowitz

recommended that she have her gallbladder removed, regardless of the results ofthe HIDA

scan. Dr. Moskowitz referred the Plaintiffto the Defendant, Dr. Henr Partridge, a general

surgeon, for a cholecystectomy, the surgical removal of the gallbladder.

The Plaintiff consulted with Dr. Partridge on October 4 2006. Based upon

his examination, Dr. Partridge concluded that the Plaintiff had probably passed some small

See Merriam Webster s Medical Desk Dictionar.

Defendant Partridge s exhibit F.

Plaintiffs exhibit 1 , expert affirmation at

Defendant Parridge s exhibit F.

Plaintiff s exhibit 10.

stones. However, in order to determine whether any stones were stil present, Dr. Partridge

recommended that the Plaintiff have a cat scan of the abdomen followed by an "ERCP " or

endoscopic retrograde colangiopancreatography study.

The ERCP procedure involves passing an endoscope through the mouth ofthe

patient to the duodenum, the part of the small intestine closest to the stomach. The "common

bile duct" is a tube leading into the duodenum. It is formed by the union of the "hepatic

duct " running from the liver, and the "cystic duct " coming from the gallbladder. By means

of the endoscope, the entrance of the common bile duct into the duodenum can be visualized.

During the ERCP, a catheter may be passed from the endoscope into the common bile duct

to inject "contrast material" in order to perform a radiographic study.7 The catheter may also

be used to remove a stone from the bile duct during the course of the procedure.

The duodenum is also connected to another duct known as the "pancreatic

duct " which, as the name implies, runs from the pancreas. The pancreatic duct empties into

the duodenum either through the opening shared with the common bile duct or another

opening which is close to it. 8 During an ERCP, the catheter may be introduced into the

See defendant Parridge s exhibit A, affidavit of Dr. Paridge, at 2. An "addendum" to

Dr. Moskowitz ' notes indicates that plaintiffs blood chemistry indicated the presence of stonesin the common bile duct. Thus , Dr. Moskowitz agreed that plaintiff would "probably need" tohave an ERCP performed. See Defendant Parridge s exhibit F.

See affidavit of Dr. Parridge at 2.

See Merriam Webster s Medical Desk Dictionar.

pancreatic duct, if the doctor who is performing the procedure regards it as appropriate.

According to Dr. Partridge, the risk of pancreatitis, or inflammation of the pancreas

developing after an ERCP is approximately 5%. 10 Although Dr. Partridge does not recall

exactly what he told the Plaintiff prior to the ERCP, a diagram which he drew on her folder

indicates that he advised her that pancreatitis is a possible risk of the procedure.

Dr. Partidge does not perform the ERCP procedure. However, he consulted

with Dr. Stephen Krigsman, a gastroenterologist associated with Dr. Moskowitz, and learned

that they used the Defendant, Dr. Aja-Onu to perform the procedure for their patients. Dr.

Partridge s notes indicate that he planned to perform a laparoscopic cholecystectomy on the

Plaintiff following completion of the ERCP procedure.

Dr. Aja-Onu performed an ERCP on the Plaintiff on October 25 2006 at the

Defendant South Nassau Communities Hospital.I Before undergoing the ERCP, the

Plaintiff signed a consent form acknowledging that she had been advised of the risks

associated with the procedure. During the course of the ERCP, a stone was removed from

the lower portion of the Plaintiffs common the bile duct, and another stone was observed

in the gall bladder.

Affdavit of Dr. Parridge at 2.

Affidavit of Dr. Parridge at 9. The experts do not discuss whether pancreatitis maydevelop without the catheter being inserted into the pancreatic duct during the course of theERCP procedure.

Affidavit of Dr. Parridge at 5.

Plaintiff sex. 1 , expert affirmation at ~ 18.

Because of the presence of the stone, the plan was to have Dr. Partridge

remove the Plaintiffs gall bladder. However, before the cholecystectomy could be

performed, the Plaintiffbegan to experience pain and vomiting. The following morning, Dr.

Partridge examined the Plaintiff and determined that she was suffering from pancreatitis

following the ERCP procedure. In view of this complication, Dr. Partridge cancelled the

cholecystectomy which had been scheduled for that morning.

On November 30 , 2006 , Dr. Partridge performed a more extensive surgery on

the Plaintiff, involving not only the removal ofthe gallbladder but also the draining of a large

cyst behind the stomach, which had developed because of the pancreatitis condition. 13 The

Plaintiff was discharged from the hospital on December 15 2006. However, on December

, the Plaintiff returned to the hospital with signs of kidney failure. The Plaintiff was

discharged from the hospital on December 21 , 2006 , at which time her kidney function was

normal.

This action for medical malpractice and lack of informed consent was

commenced on September 28, 2007. The Plaintiff alleges that Dr. Parridge committed

malpractice by ordering an ERCP rather than a less invasive radiologic procedure.

According to the Plaintiff s expert, an ERCP was not indicated because the Plaintiff s

diagnostic tests indicated only a low to intermediate risk of an obstruction. The Plaintiff'

expert asserts that rather than ordering an ERCP, Dr. Partridge should have ordered a

13 Affidavit of Dr. Partridge at 7.

relatively new diagnostic tool " known as an "MRCP " or magnetic resonance

colangiopancreatogram. 14 According to the Plaintiffs expert, an MRCP would have

identified the stone in the Plaintiff s bile duct, and the stone could have been surgically

removed without the need for an ERCP procedure. 15 Thus, the Plaintiffs expert concludes

that the ERCP was a cause of the Plaintiffs pancreatitis condition.

Aside from Dr. Partridge, the Plaintiffnamed as defendants , Dr. Aja-Onu and

South Nassau Communities Hospital. The Plaintiff alleges that South Nassau was negligent

by granting surgical privileges to Drs. Partridge and Aja-Onu and by failng to ascertain their

proficiency in the ERCP procedure. The Plaintiff further alleges that the hospital is liable

on a theory of lack of informed consent with respect to the ERCP. Finally, The Plaintiff

alleges that the hospital failed to provide her with proper post-operative care, both with

respect to the ERCP and the subsequent surgery performed by Dr. Parridge.

The Defendant, Dr. Partridge, moves for summary judgment dismissing the

complaint. According to Dr. Partridge, an MRCP might or might not have shown the

presence of the stone in the Plaintiffs bile duct. 17 Dr. Partridge asserts that if an MRCP did

show a stone, an ERCP would have been necessary to remove it. Dr. Partridge fuher asserts

P1aintiffs ex. 1 , expert affirmation at ~ 63.

Plaintiffs ex. 1 , expert affirmation at ~ 74-75.

Plaintiff sex. 1 , expert affirmation at ~ 72.

Affdavit of Dr. Parridge at 9.

that if an MRCP did not show a stone, given the Plaintiff s test results and history, an ERCP

would stil have been necessar. Thus, Dr. Partridge argues that his failure to conduct an

MRCP was not a proximate cause of the Plaintiffs injury.

On a motion for summary judgment, it is the proponent' s burden to 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 (JMD Holding Corp.

Congress Financial Corp. 4 N.Y.3d 373 384 (2005)). Failure to make such a prima facie

showing requires denial of the motion, regardless of the sufficiency of the opposing papers

Ud). However, ifthis showing is made, the burden shifts to the par opposing the summary

judgment motion to produce evidentiary proof in admissible form sufficient to establish the

existence of material issues of fact which require a trial (Alvarez v. Prospect Hospital, 68

2d 320 324 (1986)).

The requisite elements of a cause of action for medical malpractice are a

deviation or departure from accepted community standards of practice and evidence that such

departre was a proximate cause of the plaintiffs injury (Flanagan Catskil Regional

Medical Center 65 A.D.3d 563 , 565 (2d Dept 2009)). The medical services which may give

rise to a claim for malpractice include, not only diagnosis and treatment of the plaintiff s

condition, but also the performance of diagnostic procedures involving invasion or disruption

of the integrity of the body (Sample Levada 8 A. 3d 465 467 (2d Dept 2004)).

Ordinarily, expert medical opinion is necessary to make out a prima facie case

of malpractice (Dunn Khan 62 A.D.3d 828 (2d Dept 2009)). In similar fashion, expert

opinion is ordinarily necessary to establish that the defendant complied with the required

standard of care. However, a part who is qualified by reason of education or training in a

specific field may serve as his own expert (Rodriguez v. Pacifcare, Inc. 980 F.2d 1014

1019 (5 Cir. 1993)). Thus , a physician who is a defendant in a malpractice case may offer

his own affidavit on a summary judgment motion Ud). While the defendant's interest in the

case wil of course affect his credibilty, it does not prevent him from making a prima facie

showing that he is entitled to judgment on the malpractice claim.

Dr. Partridge submitted an affidavit asserting that a preoperative ERCP was

the "standard of practice" for patients with bile duct stones, and an ERCP would have been

necessary, regardless of whether an MRCP was performed. 18 The court concludes that Dr.

Partridge has established, prima facie, that there was no deviation or deparure from accepted

community practice and the failure to perform an MRCP was not a proximate cause of the

Plaintiffs injury. Accordingly, the burden shifts to the Plaintiff to show a triable issue as to

whether Dr. Partridge departed from accepted community practice and whether his departure

was a proximate cause of her injury.

The Plaintiff s expert asserts that the governing standard of care required the

doctor to perform an MRCP, prior to resorting to the more invasive ERCP procedure. 19 The

Affidavit of Dr. Parridge at 6 , 9.

P1aintiffs expert affirmation at ~ 64.

Plaintiff s expert further asserts that an MRCP would have identified the stone in the

Plaintiff s bile duct and the stone could have been surgically removed without the need for

an ERCP procedure. Thus , the Plaintiff s expert asserts that the surgical removal of the stone

would have "avoid( ed) the cannulation of, and injections of contrast material into the

common bile duct involved in ERCP; (which) resulted in the Plaintiffs severe yet easily

avoidable pancreatitis. "zo The court concludes that the Plaintiff has caried her burden of

showing a triable issue as to whether Dr. Partridge departed from accepted community

medical practice in ordering an ERCP rather than the non-invasive MRCP procedure. The

Plaintiff has further shown a triable issue exists as to whether Dr. Partridge s failure to order

an MRCP was a substantial factor contributing to the Plaintiff s developing pancreatitis. The

Defendant, Dr. Partridge s motion for summar judgment dismissing the complaint is

DENIED as it relates to the Plaintiffs malpractice cause of action.

The elements of a cause of action for malpractice based on lack of informed

consent are 1) the person providing the professional treatment failed to disclose alternatives

to the treatment and failed to inform the patient of reasonably foreseeable risks associated

with the treatment, and risks associated with 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 the patient had been

fully informed, and 3) that the lack of informed consent is a proximate cause of the injury

Plaintiffs expert affirmation at ~ 5. "Canulation" refers to the insertion of a small tubeinto a body cavity, duct, or vessel. See Merriam Webster s Medical Desk Dictionar.

(Trabal Queens Surgi-Center 8 A. 3d 555 (2d Dept 2004)).

Although Dr. Parridge does not recall exactly what he told the Plaintiff

concerning the risks associated with the ERCP procedure, he did draw a diagram of the

pancreas , the gallbladder, and the ducts connecting these organs. Dr. Partridge also drew

a "squiggly line" through the pancreas , indicating pancreatitis or inflammation. Thus, Dr.

Parridge s diagram suggests that he discussed the risk of pancreatitis with the Plaintiff. In

his affidavit, Dr. Partridge claims that he discussed alternatives to laparoscopic

cholecystectomy with the Plaintiff, including an open procedure, and not operating.

According to Dr. Parridge, the risk of pancreatitis is about the same, either with the open

procedure or with laparoscopy. Dr. Partridge did not discuss alternatives to the ERCP with

the Plaintiff, apparently because he regarded the procedure as medically necessary. In any

event, the court concludes that Dr. Partridge has carried his prima facie burden that he fully

disclosed all of the alternatives and risks to the Plaintiff. The burden shifts to the Plaintiff

to establish a triable issue exists as to whether she has a cause of action for lack of informed

consent.

At her deposition, the Plaintiff testified that Dr. Partridge did not discuss with

her the risks associated with the ERCP procedure.23 Although the Plaintiff did not remember

Defendant Parridge s ex. D.

22 Affidavit of Dr. Parridge at 6.

Plaintiffs ex. 3 , deposition of Margaret Bade at 53.

whether Dr. Onu discussed the risks of an ERCP , she testified that he did not discuss whether

there were any alternatives to the procedure.24 In his affirmation, the Plaintiff s expert stated

that, as the surgeon who was to remove the gallbladder, it was Dr. Partridge s responsibilty

to inform the Plaintiff fully as to the risks, benefits , and alternatives to the ERCP procedure.

The court concludes that the Plaintiff has carried her burden of showing a triable issue as

whether Dr. Partridge disclosed all the alternatives to an ERCP, which a reasonable

practitioner would have disclosed, and the foreseeable risks involved. The Defendant, Dr.

Partridge s motion for summary judgment dismissing the complaint is DENIED as to the

Plaintiffs cause of action for lack of informed consent.

The liabilty of a hospital may arise in several different ways. As a general

proposition, a hospital may be vicariously liable for the malpractice , or ordinary negligence

of its employees under the principal of respondeat superior (NX v. Cabrini Medical Center

97 N. 2d 247(2002)). Thus, a hospital wil be vicariously liable for malpractice committed

by a doctor who is an employee of the hospital, if the doctor acted in furtherance of the

hospital' s business and within the scope of the doctor s employment. On the other hand, a

hospital is not vicariously liable for the malpractice of an independent physician retained by

the patient, merely because the physician has attending privileges at the hospital (Welch

Medical Center 21 A.D.3d 802 , 807 (1st Dep t 2005)).

Plaintiffs ex. 3 , deposition of Margaret Bade at 54-55.

Plaintiffs expert affirmation at ~ 68.

Aside from vicarious liabilty, a hospital may also be directly liable for breach

of a duty that it, as an institution, owes to its patients. Although a hospital is, in a general

sense, always furnishing medical care to patients , not every act of negligence toward a patient

is medical malpractice (Bleilerv. Bodner 65 N. 2d 65, 73 (1985)). For example, a hospital

may be liable in negligence for failng to use due care in furnishing competent medical

personnel if the failure was a proximate cause of the Plaintiffs injury Ud). Similarly, a

hospital may be liable in negligence for failng to adopt and prescribe proper administrative

regulations , such as rules requiring that appropriate specialists be in attendance and protocols

for performing various types of medical procedures Ud).

Finally, a hospital may be liable on a theory oflack ofinformed consent, ifthe

hospital knew or should have known that the surgeon was acting without the informed

consent ofthe patient (Bailey v. Owens 17 A.D.3d 222 (1 st Dep t 2005)). "A hospital is not

required to pass upon the efficacy of treatment; it may not decide for a doctor whether an

operation is necessar, or if one be necessary, the nature thereof.. (Fiorentino v. Wenger

19 N.Y.2d, 407, 415 (1967)). However, the hospital owes to every patient whom it admits

the duty of saving her from an ilegal procedure based upon lack of informed consent Ud).

Nonetheless, a court, having the benefit of hindsight, may not impose liabilty on a hospital

for its failure to intervene in the independent physician-patient relationship Ud). The level

of detail concerning a proposed procedure as to which a patient should be informed is within

the physician s medical judgment Ud). Thus , the hospital should not ordinarily meddle in the

doctor s exercise of discretion or the delicacy ofthe physician-patient relationship (id at 415-

16).

The Plaintiff does not claim that Dr. Partridge or Dr. Aja-Onu were employees

of South Nassau so as to render the hospital liable on a theory of respondeat superior.

Rather, the Plaintiff alleges that South Nassau was negligent by granting surgical privileges

to Drs. Partridge and Aja-Onu and by failng to ascertain their proficiency in the ERCP

procedure. Such a claim is similar to a claim of failure to establish and enforce proper

administrative regulations with regard to physicians granted privileges at the hospital. The

Plaintiff further alleges that the hospital was negligent with respect to her post-operative care

and committed malpractice based on lack of informed consent.

In support of its motion for summary judgment, the Defendant, South Nassau

submits the affirmation of Dr. Vincent Garbitell, who is board certified in the field of

internal medicine. Dr. Garbitell is of the opinion that the care provided to Plaintiff by the

hospital from the date of her original admission to her ultimate discharge was undertaken in

accord with good and accepted medical practice. Dr. Garbitell further asserts that the

examinations before trial of Dr. Partridge and Dr. Aja-Onu indicate that they are "well

educated and trained in their respective specialties of gastroenterology and surgery

The court concludes that the Defendant, South Nassau has failed to car its

prima facie burden that it was not negligent in granting privileges to Dr. ' s Partridge and Aja-

Onu or in failng to establish their proficiency in the ECRP procedure. The Plaintiff s expert

acknowledges that the MRCP is a relatively new diagnostic tool. Although Dr. Garbitell'

affirmation asserts that the Defendant doctors were well trained, he has not established

prima facie, that they have kept up with advances in diagnostic techniques. Thus , even if the

Defendant doctors were properly screened in the first instance, the hospital may have been

negligent in allowing them to continue practicing without becoming well versed in the

MRCP procedure. The Defendant, South Nassau s motion for summary judgment dismissing

the complaint is DENIED as to the Plaintiffs claim based on the negligent granting of

privileges to the Defendant doctors or failng to establish their proficiency in the ERCP

procedure.

The court further concludes that the Defendant, South Nassau has not carried

its prima facie burden with respect to the Plaintiff s claims as to improper post-operative

care. Dr. Garbitell' s affirmation asserts that the Plaintiffs post-operative care was in

accordance with good and accepted medical practice. However, the Plaintiff s expert asserts

that the hospital departed from the accepted standard of care by "restarting Mrs. Bade

Lisinopril upon her discharge from the hospital on December 15 2006" . The Plaintiff had

been taking Lisinopril, apparently for hypertension, and the medication was continued by Dr.

Aja-Onu at the time of the Plaintiffs discharge.26 According to the Plaintiffs expert, this

medication was a competent producing cause ofthe "tubular necrosis" and acute renal failure

Defendant South Nassau s ex. J, affidavit of Maureen McGovern, at ~ 6. See alsoplaintiffs "Multisciplinar Discharge Plan" for December 15 2006 , defendant Parridge s ex. G.

which the Plaintiff developed after her initial discharge from the hospital. 27 A hospital is not

liable for the negligence of a private attending physician who is not the hospital' s employee

(Cerny Wiliams 32 A. 3d 881 , 883 (2d Dept 2006)). The hospital cannot be held

concurrently liable with such a physician, unless its employees commit independent acts of

negligence or the attending physician s orders are contraindicated by normal practice (id).

Regarding the Defendant, South Nassau s motion for summary judgment, it is its burden to

establish that Lisinopril was not contraindicated for someone with the Plaintiffs medical

condition and history. The court notes that the hospital' s expert, Dr. Garbitell, in his

affidavit, does not address the issue of whether continuing lisinopril was appropriate, given

the Plaintiffs medical condition. However, the affidavit of Maureen McGovern, the

Defendant, South Nassau s Risk Management/atient Safety Officer, suggests that the

Defendant was aware that the Plaintiff was claiming that including this medication in the

Plaintiff s discharge plan constituted a departre from the hospital' s duty of care. Since the

Defendant, South Nassau offers no expert opinion evidence that Lisinopril was not

contraindicated for the Plaintiff, it has not established, prima facie, that it gave the Plaintiff

proper post-operative care. The Defendant, South Nassau s motion for summary judgment

dismissing the complaint is DENIED as to the Plaintiffs claim for improper post-operative

care.

The court concludes that the Defendant, South Nassau has carried its prima

Plaintiffs ex. 1 , expert affrmation at ~ 77.

facie burden as to the Plaintiff s claim against the hospital for lack of informed consent. The

consent form which the Plaintiff signed prior to the ERCP establishes prima facie that she

was adequately informed of the risks associated with the procedure. Thus, the burden shifts

to the Plaintiff to show a triable issue as to whether she has a cause of action against the

hospital for lack of informed consent.

The Plaintiff offers no evidence that South Nassau should have known that

Dr.'s Partridge and Aja- Onu did not have the Plaintiffs informed consent to undergo an

ERCP procedure. While an MRCP is a relatively new diagnostic procedure, there was no

evidence that it has totally displaced the ERCP, or that it is no longer good and accepted

medical practice to use an ERCP in any circumstances. Thus, South Nassau was not required

to pass upon the efficacy of an ERCP for a patient in the Plaintiff s circumstances, or

otherwise second guess Dr. Aja-Onu as to whether an ERCP was appropriate. The

Defendant, South Nassau s motion for summar judgment dismissing the complaint is

GRANTED as to the Plaintiffs claim for lack of informed consent.

All matters not decided herein are hereby DENIED.

This decision constitutes the decision and order of the court.

DATED: Mineola, New YorkNovember 23 2009

ndy Sue Marber, J.

INTERIDNOV 2 5 2009

MAUAU COU'" I Y

eOUMTY IlERK" OPfICE