Masucci v. Feder
| Decision Date | 05 August 1993 |
| Citation | 196 A.D.2d 416,601 N.Y.S.2d 108 |
| Parties | Alan A. MASUCCI, etc., et al., Plaintiffs-Respondents, v. Barry FEDER, Defendant, and Theodore Slutsky, Defendant-Appellant, and Leon Sasson, et al., Defendants. |
| Court | New York Supreme Court — Appellate Division |
Before ROSENBERGER, J.P., and WALLACH, ROSS, KASSAL and NARDELLI, JJ.
Order, Supreme Court, Bronx County (Hansel McGee, J.), entered March 4, 1992, which, inter alia, denied the defendant Slutsky's motion for summary judgment dismissing the complaint and all cross claims against him, unanimously affirmed, without costs; and, order of the same court, entered on or about April 29, 1992, which granted the defendant Feder's cross motion for summary judgment dismissing the complaint and cross claims against him, unanimously reversed, on the law, the motion is denied and the complaint and cross claims are reinstated, without costs.
The plaintiff instituted this medical malpractice action to recover damages for the wrongful death of his wife. He maintained that the decedent's death resulted from substantial departures from good and accepted practice on the parts of the defendants, Drs. Slutsky and Feder. Specifically, he alleged that Dr. Slutsky, a general practitioner, failed to diagnose and properly treat the decedent for bacterial endocarditis. He also alleged that Dr. Feder, a dentist, failed to administer or properly administer antibiotics to guard against endocarditis during dental treatment he provided the decedent.
Dr. Slutsky moved for summary judgment dismissing the complaint and all cross claims against him. He alleged that he began treating the decedent in 1976 for problems unrelated to this action and obtained a history from her which was negative for heart disease, lung disease, diabetes and allergies. On June 9, 1984, she came to his office complaining of a cough, fever and sore throat. He maintained that although he asked her during this visit if there had been any changes in her medical history, she failed to advise him that she had been diagnosed with mitral valve prolapse.
Slutsky took the decedent's temperature and blood pressure and drew blood and urine samples which were sent to a laboratory for analysis. He gave her an antibiotic and instructed her to return to the office on June 13, 1984 for the results. On June 13th, the decedent telephoned to advise Slutsky that she was too weak to go to his office.
The decedent returned to the office on June 14th, accompanied by her daughter, since she still had a fever and a headache. The test results showed an elevated transaminase level, indicating heart or liver disease. Since Slutsky did not know what was wrong with the decedent, he sent her to an internist, specializing in gastroenterology. According to Slutsky, the internist recommended that the decedent be hospitalized, but she refused.
However, according to the decedent's daughter, the internist thought the decedent had hepatitis and ordered more tests. Although he indicated that the decedent might be more comfortable having these tests performed in a hospital, when the decedent asked if she had to go, he said that she could wait to see if her condition improved at home. On June 17, 1984, the decedent was brought to Montefiore Medical Center where she was diagnosed with subacute bacterial endocarditis and died a few weeks later.
The plaintiff contended that Slutsky departed from accepted practice by failing to perform blood cultures, electro- and echocardiography, by failing to consider the diagnosis of bacterial endocarditis and by failing to recommend and arrange prompt hospitalization for the decedent. He alleged that contrary to Slutsky's denial of knowledge of the decedent's past history of heart disease, Slutsky's office records contain a notation dated January 10, 1981, "Vertigo with HCVD [Hypertensive cardiovascular disease] and angina." Slutsky, in his deposition, testified that he did not make this notation. Rather, he alleged that his secretary wrote this down without consulting him and that he was unaware of the decedent's history of heart disease. The decedent's daughter also claimed that she was with her mother during an office visit with Slutsky and that her mother told him about her history of rheumatic fever, of heart murmur and that at one time she was taking heart medication. The daughter also testified at a deposition that she wrote down her mother's history of heart disease on cards handed out by Slutsky's office employees.
The plaintiff further contended that contrary to Slutsky's deposition testimony, that he discussed hospitalization with the decedent on June 9, 1984, and that she refused, Slutsky's office records contain no such notation. His only notation concerning hospitalization is dated June 14th and states that the internist told him that the decedent refused to go to the hospital.
In an affidavit submitted in opposition to the defendants' motion for summary judgment, the plaintiff's medical expert asserted that in his opinion, there were substantial departures from accepted practice by Dr. Slutsky which resulted in the decedent's death, particularly the failure of waiting until June 14th to send her to a specialist, the failure to consider the diagnosis of endocarditis and the failure to hospitalize her. He also stated that Slutsky erred in failing to perform blood cultures and electro- and echocardiography since these tests were indicated. The expert alleged that had these diagnostic tests been performed sooner, the correct diagnosis of the decedent's condition would have been made at a time when she could have been properly and promptly treated.
In an affidavit submitted in reply, Slutsky's medical expert alleged, inter alia, that subacute bacterial endocarditis is not an office diagnosis and that the decedent refused to be hospitalized. He further alleged that blood tests are not performed as an office procedure and that electrocardiography is not a diagnostic test for subacute bacterial endocarditis. Moreover, he contended that tests performed at the hospital indicated that the decedent's organism was refractory to treatment. In sum, this expert alleged that the decedent would have died even if Slutsky had diagnosed endocarditis and sent her to the hospital on June 9th.
A medical malpractice panel found that there was no malpractice committed by Slutsky. The Supreme Court, finding issues of fact as to the adequacy of the medical evaluation, treatment, care and practice performed by Slutsky, as well as the diagnostic and medical/therapeutic treatment rendered by him, denied his motion for summary judgment.
Dr. Feder cross moved for summary judgment dismissing the complaint and cross claims against him. He maintained that the decedent came to his office on April 14, 1984 to have a tooth filled and a crown polished. He conceded that he was aware of the decedent's heart problems and of the need to provide prophylaxis for the dental work performed but alleged that he fulfilled his duty by providing her with a prescription for Erythromycin, an antibiotic.
In an affidavit, the plaintiff's medical expert alleged that Dr. Feder departed from accepted practice by failing to administer prophylaxis. Feder's office records indicate that he had prescribed Erythromycin for the decedent on two earlier visits but the notation for April 14, 1984 only says "prophylaxis". It makes no mention of Erythromycin. The expert further contended that even if Feder had prescribed Erythromycin as he maintained, he administered a dosage which was inadequate according to the American Heart Association guidelines. This expert further alleged that Erythromycin is effective in eradicating Staphylococcus aureus, which is an organism found in the mouth, and, since there was no evidence that the infection which caused the decedent's endocarditis arose from another site, there was a substantial probability that a proper dose of Erythromycin would have...
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Shay v. Palombaro
...and that a material question of fact exists as to whether defendant deviated from accepted dental standards (see, Masucci v. Feder, 196 A.D.2d 416, 421-422, 601 N.Y.S.2d 108; see also, Borden v. McDonald, 213 A.D.2d 921, 922-923, 623 N.Y.S.2d 959). Plaintiff submitted the sworn and notarize......
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Ramos v. Columbia Presbyterian Medical Center, 2007 NY Slip Op 30468(U) (N.Y. Sup. Ct. 3/22/2007)
...physician comported with good and accepted medical practice and did not proximately cause plaintiff's injuries. Masucci v. Feder, 196 A.D.2d 416, 418-19 (1st Dept. 1993). This evidence must generally be set forth through an expert affidavit. Chase v. Cayuga Med. Ctr., 2 A.D.3d 990 (3d Dept.......
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Kwo Fung Liu Yu v. Glaucoma Associates of New York, P.C., 2007 NY Slip Op 30467(U) (N.Y. Sup. Ct. 3/22/2007)
...the defendant comported with good and accepted medical practice and did not proximately cause plaintiffs injuries. Masucci v. Feder, 196 A.D.2d 416, 418-19 (1st Dept. 1993). This evidence must generally be set forth through an expert affidavit. Chase v. Cayuga Med. Ctr., 2 A.D.3d 990 (3d De......