Moran v. Mu
| Decision Date | 18 September 2013 |
| Docket Number | No. 18736/03.,18736/03. |
| Parties | George MORAN, as Guardian Ad Litem for Ildefonso Castillo, and Wendy Castillo, Plaintiffs, v. Harrison MU, M.D. Richard Johnson, M.D., "John" Christian, M.D., Hector Gil De Rubio, M.D., P.C., Wyckoff Heights Medical Center, and Wyckoff Emergency Medicine Services, P.C., Defendants. |
| Court | New York Supreme Court |
The following papers numbered 1to 30 read herein:
| Papers | Numbered |
| Notice of Motion/Order to Show Cause/ | |
| Petition/Cross Motion and Affidavits (Affirmations) Annexed | 1–3;8–10;13–15;18–19;20–21;24–25 |
| Opposing Affidavits (Affirmations) | 4–6; 22 |
| Reply Affidavits (Affirmations) | 11; 16; 23 |
| Supplemental Reply Affidavits (Affirmations) | 17; 26–28 |
| Memoranda of Law | 7; 12; |
| Transcripts of Pretrial Depositions of Welda Gejon, R.N., Halina Feder, R.N., and Regina Marquez, R.N. | 29 |
| Transcript of Pretrial Deposition of Allen M. Williams, M.D. | 30 |
In this medical malpractice action brought against, inter alia, a hospital and its on-call neurosurgeon for the life-long, irreversible brain injury allegedly caused by a delayed and improper treatment of a head gunshot wound, the following motions and cross motions have been consolidated for disposition and, upon consolidation, oral argument, and additional submissions in response to the Court's interim orders, dated July 24 and 31, 2013, it is hereby
ORDERED that the motion of the defendant Richard Johnson, M.D. (Dr. Johnson), for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint insofar as asserted against him or, alternatively, dismissing damages for past and future pain and suffering, is granted without opposition from the plaintiffs, George Moran, as guardian ad litem for Ildefonso Castillo, and Wendy Castillo (plaintiffs), and without costs or disbursements (seq.No.14); and it is further
ORDERED that the motion of the defendant Harrison Mu, M.D. (Dr. Mu), for an order, pursuant to CPLR 3212, granting him summary judgment dismissing the complaint insofar as asserted against him or, alternatively, dismissing damages for past and future pain and suffering, is granted solely with respect to plaintiffs' informed consent claim and is otherwise denied (seq.No.13); and it is further
ORDERED that the motion of the defendant Wyckoff Emergency Medicine Services, P.C. (Wyckoff ER), for an order, pursuant to CPLR 3212, granting it summary judgment dismissing the complaint insofar as asserted against it is granted solely with respect to plaintiffs' informed consent claim and is otherwise denied (seq.No.12); and it is further
ORDERED that the alternative request of the defendant Wyckoff ER, made by way of a supplemental attorney affirmation, to expand upon the relief sought in its original motion to include a dismissal of damages for past and future pain and suffering is denied; and it is further
ORDERED that the cross motion of the third-party defendant Kara Christian, as successor executor of the estate of Karl W. Christian, M.D., for an order, pursuant to CPLR 3211 and 3212, dismissing damages for past and future pain and suffering is denied (seq.No.15); and it is further
ORDERED that the cross motion of the defendant Wyckoff Heights Medical Center (Wyckoff Hospital) for an order, pursuant to CPLR 3211 and 3212, dismissing all claims of vicarious liability against it for the conduct of Dr. Mu, Wyckoff ER, and Dr. Johnson is deemed, pursuant to CPLR 3211(c), as one for summary judgment and, thereupon, is granted solely with respect to Dr. Johnson and is otherwise denied (seq.No.17); and it is further
ORDERED that the branch of plaintiffs' cross motion for an order, pursuant to CPLR 1201 and 1202, amending the caption to reflect the substitution of Kerry J. Katsorhis as guardian ad litem for the injured plaintiff Ildefonso Castillo is granted without opposition (seq.No.18); and it is further
ORDERED that the remaining branch of plaintiffs' cross motion for leave, pursuant to CPLR 3025(b), to amend their complaint to add Neuro Axis Neurosurgical Associates, P.C. (alternatively spelled as NeuroAxis Neurosurgical Associates, P.C.) (NeuroAxis) as a defendant is granted (seq.No.18); and it is further
ORDERED that the caption of the principal action is amended to read in its entirety as follows:
The parties are reminded of their next appearance in the Medical Malpractice Trial Readiness Part on October 7, 2013.
On Thursday, July 18, 2002,1 at 4:45 a.m., the injured plaintiff Mr. Ildefonso Castillo (the patient) presented to the defendant Wyckoff ER with a visible gunshot wound to his head (GSWH), concomitant with a gunshot wound to his left leg. The GSWH was of the "penetrating" (no exit) type with the bullet lodged inside his skull.2 The GSWH resulted in some visible swelling and a small amount of bleeding from his skull.
On presentation, the patient informed the personnel at Wyckoff ER that he had been shot in the street about 20 minutes earlier (MC 30) .3 He complained of sharp pain on the scale of 8 of 10 (MC 31). His blood pressure was then 136/68 (hypertensive), his pulse 125 (tachycardic), his respiratory rate 22 breaths per minute (tachypneic), and his temperature 98degrees (afebrile) (MC 30). He had a blood alcohol level of 38.22 (or .038) (MC 422). He was then 24 years old, weighed 190 pounds, and stood 5 feet, 9 inches tall (MC 30, 451). He had no prior medical history (MC 25), was married, and worked as a doorman/porter earning $50,000 per annum (BOP ¶ 5).
The patient was first seen by an ER nurse at 5 a.m., triaged by another ER nurse at 5:12 a.m., and examined by an ER physician at 5:30 a.m. Despite the obviousness of his GSWH, he was assessed the lowest triage level of 4/4 (MC 25). While in the ER, he received no medication to decrease any brain swelling that may have resulted from the GSWH; he received no supplemental oxygen; no arterial blood gases were ordered at that time.
At 5:45 a.m., the patient received an antibiotic and a tetanus shot, and was also set up with the IV lines for liquids to maintain his fluid balance (MC 26). Also at 5:45 a.m., an order for a non-contrast CT scan of the patient's head was entered in his medical chart (MC 26), but the CT scan was not performed until about 8 a.m. (MC 28). In the meantime, only an X-ray of the patient's head was performed at 6:45 a.m. The X-ray showed the presence of a bullet lodged in the patient's skull and a fracture of his frontal bone on the left side (MC 323). At 6:45 a.m., the patient was still "awaiting disposition," although a page for a surgical consult was answered at 5:55 a.m. and a separate page for a neurosurgical consult was answered at 6:30 a.m. During his two-hour admission to Wyckoff ER and before he was referred to the surgical service at 7 a .m., the only substantive diagnostic procedure that Wyckoff ER performed on him was a head X-ray, and the only substantive treatment Wyckoff ER provided to him consisted of IV fluids and an antibiotic, plus a tetanus shot.
The patient was admitted to the surgical (trauma) service at 7 a.m. for a period of two hours until about 9 a.m. During those two hours, the surgical service, which includes the trauma service, examined him, wrote up examination notes, and ultimately referred him to the neurosurgical service. In essence, his admission to the surgical service was nothing more than a paperwork formality: during his admission to the surgical service, he remained physically stationed in the ER and was not moved to either an ICU or a CCU (Dr. Mu Transcript hereinafter ("Tr.") at 574:17–21). Only at about 9 a.m. was he admitted to the neurosurgical service.4
While the patient stayed in the ER, nonparty Physician's Assistant (PA) Warren Strauss, a member of Wyckoff Hospital's in-house neurosurgical staff, examined the patient some time after 7:30 a.m. (PA Strauss Tr. at 106:18–19). Between 7:30 a.m. and 8 a.m ., PA Strauss spoke on the telephone twice with the defendant Dr. Mu, a member or employee of the outside neurological group (the proposed defendant NeuroAxis), which covered Wyckoff Hospital's emergency neurosurgical patients (PA Strauss Tr. 107:6–12, 158:19–21). In consultation with Dr. Mu, PA Strauss ordered (or, more precisely, re-ordered) a non-contrast CT scan of the patient's head. The head CT scan, which was performed at 7:55 a.m., revealed (1) the presence of a bullet within the soft tissues at the left frontal parietal area, (2) a fracture of the left frontal bone lateral aspect, (3) some hemorrhage within the left frontal area, and (4) a soft-tissue hematoma.5
During his two-hour admission to Wyckoff ER and his subsequent two-hour admission to the surgical service, the patient's mental state visibly deteriorated. On his initial presentation to Wyckoff ER at 4:45 a.m., the patient appeared cognitively unimpaired. He walked into the ER on his own; the motor strength in all of his extremities was found to be normal on testing; he appeared to be fully alert and oriented; he was able to speak and his speech was clear (MC 30). He was assigned a maximum Glasgow Coma Scale score of 15: 4 points for his "spontaneous" eye-opening response, 5 points for his "oriented" verbal response, and 6 points for his "obeying commands" motor response (MC 31).6 In the course of his admission to Wyckoff ER, however, the patient's cognition noticeably deteriorated.
A 7 a.m. surgical admitting note revealed that the patient was "somnolent," meaning that some changes were going on in the patient's condition, such as "some swelling reaction to the gunshot wound slowly taking effect" (MC 52; PA Strauss Tr. at...
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