Applewhite v. Accuhealth, Inc.

• Decision Date: 28 December 2010
• Citation: 915 N.Y.S.2d 223,81 A.D.3d 94
• Parties: Tiffany APPLEWHITE, etc., et al., Plaintiffs-Respondents, v. ACCUHEALTH, INC., et al., Defendants, Linda Russo, R.N., Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 223 81 A.D.3d 94 Tiffany APPLEWHITE, etc., et al., Plaintiffs-Respondents, v. ACCUHEALTH, INC., et al., Defendants, Linda Russo, R.N., Defendant-Appellant. Supreme Court, Appellate Division, First Department, New York. Dec. 28, 2010.

Fiedelman & McGaw, Jericho (James K. O'Sullivan of counsel), and Edward Garfinkel, Brooklyn, for appellant.

Murray S. Axelrod, New York, for respondents.

ANGELA M. MAZZARELLI, J.P., DAVID B. SAXE, EUGENE NARDELLI, LELAND G. DeGRASSE, SALLIE MANZANET-DANIELS, JJ.

MAZZARELLI, J.P.

Defendant Linda Russo is a registered nurse whose work is exclusively limited to the performance of home infusions ofintravenous medication. On February 21, 1998, she visited the 12-year-old plaintiff at home to administer to her a dose of methylprednisolone (Solu-Medrol). Russo worked for Accuhealth, Inc., a company which specialized in home infusions.

Solu-Medrol had been prescribed by an opthalmologist who was treating plaintiff for uveitis, a vision-threatening form of eye inflammation. The physician had ordered that the medication be given for three-day periods on consecutive months. The first month that the medication was administered was January 1998, and plaintiff accepted the infusion without incident. Russo performed the infusion, which takes approximately one hour, on one of the January days. Other nurses from Accuhealth covered the other two days. Although not entirely clear from the record, it does not appear that the physician who prescribed the Solu-Medrol worked for Accuhealth.

The incident in question occurred on the day that the February series of infusions began. When Russo arrived at plaintiffs' apartment, the only medical equipment she had with her was a blood pressure cuff, a stethoscope and a one-way breather, which is used during cardiopulmonary resuscitation. All of the items which Russo would need for the infusion itself, such as needles, intravenous lines, the pole to support the bag of medication and the medication itself, had been delivered directly to plaintiffs' apartment in anticipation of Russo's visit. The infusion materials were shipped by Accuhealth, without Russo's involvement.

Within seconds after the Solu-Medrol began to flow into plaintiff's veins, plaintiff complained that she could not breathe. Russo testified at her deposition that she was next to plaintiff at all times and immediately stopped the drip. She said she instructed plaintiff's mother, who was observing the infusion, to call 911 and tell the operator that her daughter was having difficulty breathing and to send an ambulance immediately. Plaintiff then began to have a seizure, and Russo directed her mother to bring her a spoon with padding around it. Russo used the spoon to force plaintiff's mouth open. She then inserted the one-way breather and began breathing into plaintiff's mouth through the device. Plaintiff's condition rapidly deteriorated and she went into full respiratory, and then cardiac, arrest. Russo claims that she lowered plaintiff from the sofa, where she had been situated at the beginning of the infusion process, to the floor, whereshe began to administer CPR until the arrival of emergency medical services personnel. Tragically, by the time emergency responders were able to stabilize her condition,plaintiff had suffered significant oxygen loss, which resulted in permanent brain damage, leaving her unable to eat, speak or communicate.

It is not in dispute that plaintiff's condition was caused by an allergic reaction to the Solu-Medrol, which caused her to go into anaphylatic shock. This is a known side effect of the drug. It is also not in dispute that epinephrine is a prescription drug commonly given to counteract the effects of those allergens that can cause anaphylatic shock. Russo did not have epinephrine with her on the day in question. She testified that epinephrine was not included in the box of supplies that Accuhealth had delivered to plaintiffs' apartment before her arrival. She further stated that she would not have been permitted to carry epinephrine with her without a prescription.

Plaintiff's mother testified at her deposition that, when plaintiff first complained about having difficulty breathing, Russo was writing notes in the kitchen, approximately 20 feet from where plaintiff was situated in the living room. She stated that it took approximately one minute from the time she told Russo that plaintiff could not breathe until Russo instructed her to call 911. She further contended that, after she brought the padded spoon to Russo and Russo commenced rescue breathing, Russo asked her to help place plaintiff in a lying position on the couch, not on the floor as Russo testified, where she performed CPR on plaintiff.

Plaintiffs commenced this action against Russo, Accuhealth, the City and its Emergency Medical Service.¹ As concerns Russo, plaintiffs' bill of particulars alleged that she committed professional malpractice by, inter alia, failing to properly supervise and attend to plaintiff, failing to properly and immediately perform CPR on plaintiff, failing to personally advise the 911 operator of the nature of the emergency, and failing to have ensured that epinephrine was available to counteract the allergic reaction which caused plaintiff's anaphylaxis.

Russo moved for summary judgment to dismiss the complaint. She primarily relied on the expert affidavit of Anne Heuser, a registered nurse. Heuser opined that Russo, in each and every aspect of her treatment of plaintiff, acted "well within the standards of good and accepted nursing practice." With respect toRusso's failure to have epinephrine available with which to treat plaintiff, the entirety of Heuser's opinion was as follows:

"Furthermore, Nurse Russo was not authorized to carry epinephrine or an Eppi pen without a specific order from a physician. Here, neither Dr. Weiss nor Dr. Ahuja ordered epinephrine for the infant Plaintiff. It would have been a violation of good and accepted nursing practices for Nurse Russo to somehow obtain epinephrine on her own and administer it to the infant plaintiff."

In opposition to Russo's motion, plaintiffs submitted two expert affidavits. One was from Lynn Hadaway, a registered nurse from Georgia who specializes, like Russo, in home infusion therapy. Hadaway attached to her affidavit the drug monograph for Solu-Medrol, which identifies anaphylaxis as a side effect, and advises those administering the drug to "keep epinephrine immediately available." She concluded that Russo fell short of national standards for infusion therapy by failing tohave the requisite knowledge about Solu-Medrol and failing to ensure the presence of epinephrine in plaintiffs' apartment on the day in question. Finally, Hadaway rendered her opinion that Russo improperly administered CPR to plaintiff on the sofa, because CPR should be properly performed on a sturdy, rigid surface.

Plaintiffs' second expert affirmation was from Michael Wajda, a medical doctor. Dr. Wajda stated that Russo was responsible for handling any complications caused by administration of Solu-Medrol to plaintiff. He stated that if Russo was not prepared to address any such eventualities on the day in question, including by not having epinephrine at her disposal, she was required not to perform the infusion. Dr. Wajda further stated that it was unclear to him whether Russo stopped the flow of Solu-Medrol immediately after plaintiff went into shock, and whether she began to give intravenous fluids to plaintiff at the same time as she did stop the medication. This infusion of liquids would have been critical, Dr. Wajda stated, to keep plaintiff's veins open to allow the maximum volume of blood to flow through them. Dr. Wajda also opined that Russo did not properly maintain plaintiff's airway.

Plaintiffs also questioned the qualifications of Heuser to act as an expert for Russo, since Heuser did not specialize in home infusion nursing. In reply, Russo submitted a supplemental affidavit from her expert, Heuser, in which she attempted tocounter plaintiffs' argument that she was not qualified to render an opinion in this case. While admitting that she did not specialize in home infusion nursing, Heuser stated that because, during her 19 years of nursing, she had worked in emergency rooms and in trauma centers, she was "more than qualified to comment on the treatment rendered by a home infusion nurse."

Supreme Court denied Russo's motion. It found that questions of fact existed as to where Russo was at the time plaintiff first complained of trouble breathing and whether her location may have rendered her incapable of intervening quickly enough in case of an emergency. The court rejected Heuser's affidavit, finding that her lack of experience as a home infusion nurse rendered her opinion meaningless in a case where the standard of care to be applied was that of a home infusion specialist and not a generalist. The court credited the affidavits of both Nurse Hadaway and Dr. Wajda, and expressly rejected Russo's argument "that [p]laintiff falls short of defeating her entitlement to summary judgment because it is irrefutable that Nurse Russo had no authority to order or administer epinephrin [ sic ]."

Plaintiffs' expert submissions raised triable issues as to whether Russo's alleged failure, after the onset of plaintiff's reaction, to properly maintain plaintiff's airway, to flush the IV, to perform CPR on a rigid surface, and to ensure a prompt response from emergency medical services, contributed to the severity of plaintiff's brain injury ( see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666 [1980] ). Further, Russo failed to even shift the burden to plaintiffs on the issue of whether she breached a professional duty by administering Solu-Medrol without an available supply of epinephrine.

It is basic that the party moving for summary judgment has the burden of establishing the absence of any...