Alvarez v. Gerberg, 2009 NY Slip Op 32174(U) (N.Y. Sup. Ct. 8/28/2009)
| Decision Date | 28 August 2009 |
| Docket Number | Motion Sequence: 002,003.,992/07. |
| Citation | 2009 NY Slip Op 32174 |
| Parties | ADELINA ALVAREZ and JOSE ALVAREZ, individually and as the Administrators of the Estate of MATTHEW ALVAREZ, deceased, Plaintiff(s), v. BRUCE E. GERBERG, M.D., HUNTINGTON PEDIATRICS, P.C., DIANE PETERMAN, M.D., BERNARD BECKERMAN, M.D., U. MOUSTAFA, M.D., WILLIAM MICHAEL MARTIN, M.D., HUNTINGTON HOSPITAL, ASHOK CHINTAMAN SHENDE, M.D., SCHNEIDER'S CHILDREN'S HOSPITAL, ALEXANDER S. FUCHS, M.D., ELSA VALDERRAMA, M.D., TAWFIQUL ALAM BHUTYA, M.D., NORTH SHORE-LONG ISLAND JEWISH HEALTH SYSTEM, Defendant(s). |
| Court | New York Supreme Court |
Motion by defendants Diane Peterman, M.D., Bernard Beckerman, M.D. and Huntington Hospital for an order pursuant to CPLR §3212 granting them summary judgment dismissing the complaint is granted as to Diane Peterman, M.D. and denied as to Dr. Beckerman and Huntington Hospital. Motion by defendant William Michael Martin, M.D. for an order pursuant to CPLR §3212 granting him summary judgment dismissing the complaint is denied.
This is an action to recover damages for medical malpractice. Plaintiff alleges that defendants departed from good and accepted medical practice in treating plaintiffs in that they negligently and carelessly failed to diagnose the infant decedent's cancerous condition; in negligently failing to perform a complete and proper physical examination;... in failing to take heed of the infant plaintiffs complaints and his parents' complaints of unremitting abdominal, testicular and back pain; in negligently failing to immediately refer the infant decedent to an oncologist; in negligently failing to be cognizant of, read and interpret CT scan reports ordered by the defendant herein; in negligently failing to follow up for and obtain all radiological reports and CT scan reports in a timely fashion; in negligently arriving at erroneous diagnoses; in failing to arrive at any diagnosis; in failing to perform diagnostic studies in light of persistent symptoms that the infant patient and his parents were complaining of; in negligently treating the infant patient's condition; in allowing the infant patient's medical condition to progress in an unfettered manner to a point beyond which the infant could avoid suffering from serious, permanent and debilitating injuries which ultimately caused and led to his untimely death.
On May 15, 2005, Matthew Alvarez presented to Huntington Hospital ("the hospital") complaining of right testicular pain that started two days earlier without associated injury. Dr. Bernard Beckerman, the attending emergency room physician assigned to Matthew, performed an examination and documented a normal exam. Dr. Beckerman ordered a testicular sonogram, which was negative for torsion. The decedent was discharged on Motrin with instructions to see his primary care physician Dr. Bruce Gerberg of Huntington Pediatrics, P.C. in the morning.
On May 20, 2005, the decedent was seen in Dr. Gerberg's office complaining of abdominal, low back and testicular pain for five days with a decreased appetite and one episode of vomiting. Dr. Gerberg referred the decedent to the emergency room at the hospital. The decedent was initially evaluated by a resident, Dr. Moustafa. In addition, Dr. Beckerman, the emergency room attendant, evaluated the decedent again. Dr. Beckerman's examination revealed abdominal tenderness in the right lower quadrant with no guarding or rebound. An abdominal CT scan and surgical consult was ordered. The abdominal and pelvic CT without intravenous contrast demonstrated marked retroperitoneal lymphadenopathy extending into the right hemipelvis. There was right pelvic sidewall adenopathy with masses.
A surgical consultation was provided by Dr. William Martin and he noted that the abdominal and pelvic CT scan showed "some increased adenopathy without evidence of acute appendicitis, free air or abscess." Dr. Martin's impression was a possible viral process requiring no surgical intervention. Dr. Gerberg was also consulted regarding the labs and the CT findings. The infant was discharged and instructed to take Motrin every six hours for pain, to follow up with his private doctor in the morning and return for any worsening symptoms.
On May 21, 2005, the infant returned to Huntington Pediatrics and was seen by Dr. Eileen Sheehy, then an employee of the practice. Dr. Sheehy's assessment was a questionable dietary indiscretion with a questionable supratentorial component. The plan was for a bland diet and to re-check in the morning.
On May 22, 2005, Dr. Gerberg spoke with the decedent's mother who reported that he was still complaining of body aches, back, abdominal and testicular pain. The plan was to follow in two to three days if the pain persisted. On May 26, 2005, the infant returned to Huntington Pediatrics with continued complaints of abdominal, back and hip pain with occasional vomiting. Dr. Gerberg's plan was to check the labs including amylase and lipase levels and to obtain a CT scan of the abdomen and an MRI of the back.
On May 28, 2005, the decedent returned to Huntington Pediatrics with a fever of 102°, with slight improvement of the back and testicular pain. Dr. Gerberg examined the decedent and noted that his tonsils were erythematous. Dr. Gerberg's assessment was viral syndrome.
On June 8, 2005, the decedent's mother called to report that the infant had back, pelvic and testicular pain, and treatment with a heating pad was recommended. On this same date, the decedent returned to the emergency room at the hospital for an MRI of the abdomen. This could not be completed due to pain. On exam, a mobile non-tender cyst was found in the left lateral neck together with abdominal tenderness. The impression remained back pain. The decedent was discharged with instructions to follow-up with his pediatrician and complete a CT scan and MRI that week.
On June 9, 2005, the decedent presented to the Long Island Jewish Medical Center emergency room with complaints of testicular pain radiating to his back, dysuria and vomiting. A renal sonogram was suspicious for adenopathy in the right lower quadrant, and a CT scan confirmed a right-sided retroperitoneal process. An incisional biopsy frozen section was obtained and ultimately the pathology was reported as acute myelogenous leukemia. Subsequent studies found lung nodules suspicious for metastasis, with a destructive bony lesion in the proximal right tibia.
The decedent received chemotherapy from June 15, 2005 through June 28, 2005. On July 18, 2005, a CT scan revealed an increase in the retroperitoneal mass and lymphadenopathy and a new abdominal wall mass. The new lesion was biopsied and significant for myelogenous leukemia as reported by Dr. Fuchs. The decedent received an additional course of chemotherapy along with radiation therapy consisting of an abdominal bath. A repeat CT scan performed on August 3, 2005 found decrease in the size of the lesions. However, on August 9, 2005, a biopsy was performed of a new right forearm nodule, and the pathological evaluation was reported as anaplastic large cell lymphoma (ALCL) with a notation that review of the two previous biopsies were also anaplastic large cell lymphoma.
Subsequently, various pathology specimens were sent to Memorial Sloan Kettering Cancer Center where the diagnosis of anaplastic large cell lymphoma was confirmed. On August 11, 2005, the decedent was transferred to this facility for further treatment. The decedent remained at Memorial Sloan Kettering Cancer Center until his death on September 21, 2005.
Initially, we note that p...
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