Papa v. United States
| Decision Date | 30 November 2021 |
| Docket Number | 1:17-cv-898 (TJM/CFH) |
| Parties | MATTHEW PAPA and ELIZABETH REUSSWIG, as Co-Administrators of the ESTATE OF JOSEPH A. PAPA, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Northern District of New York |
MATTHEW PAPA and ELIZABETH REUSSWIG, as Co-Administrators of the ESTATE OF JOSEPH A. PAPA, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.
No. 1:17-cv-898 (TJM/CFH)
United States District Court, N.D. New York
November 30, 2021
DECISION & ORDER
THOMAS J. MCAVOY, SENIOR UNITED STATES DISTRICT JUDGE
Before the Court is the Defendant's motion for summary judgment. See dkt. # 47. The parties have briefed the issues, and the Court has determined to decide the matter without oral argument.
I. Background
This case arises out of the medical treatment Decedent Joseph A. Papa received at the Albany Veterans Administration Medical Center (“Albany VAMC”) from July to September 2015. Plaintiffs, who are two of the children and the administrators of Joseph Papa's estate, allege that medical personnel a the Albany VAMC committed medical malpractice and injured Joseph Papa when they intubated him to facilitate operation of a mechanical respirator.
At the close of discovery, Defendant filed the instant motion for summary judgment. The Northern District of New York's Local Rules provide that a party who files a motion for summary judgment must file “a separate Statement of Material Facts.” Northern District of New York Local Rule 56.1(a). That statement must “set forth, in numbered paragraphs, a short and concise statement of each material fact about which the moving party contends there exists no genuine issue.” Id. The party must “set forth a specific citation to the record where the fact is established.” Id. The “record” in such cases “includes the pleadings, depositions, answers to interrogatories, admissions and affidavits.” Id.
The Rules require the non-moving party to file a response to the moving party's statement. L.R. 56.1(b). That Rule provides:
The opposing party shall file a separate Response to the Statement of Material Facts. The opposing party's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises The Court may deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert. In addition, the opposing party's Response may set forth any assertions that the opposing party contends are in dispute in a short and concise Statement of Material Facts in Dispute containing separately numbered paragraphs, followed by a specific citation to the record where the fact is established. The moving party may reply to the opposing party's contended assertions in a separate Reply Statement and/or its Reply Memorandum of Law
L.R. 56.1(b) (emphasis in original).
Defendant's motion for summary judgment contained the statement required by the rules. See dkt. # 47-1. Plaintiffs responded. Their response mirrored the paragraphs in the Defendant's statements, but those responses contained no citations to the record. Plaintiffs appear to have addressed this failing with an introductory paragraph, stating:
Defendant's submission of a Statement of Material Facts cites and references
uncorroborated medical records rendering it difficult to admit or deny the accuracy thereof. In addition, plaintiffs cannot accurately admit or deny defendant's Statement of Material Facts as to plaintiff's expert's [deposition] representations as his answers were premised upon the representation that he did not acknowledge the accuracy of the Hospital medical records and reports.
Plaintiffs' Response to Defendant's Statement of Material Facts, dkt. # 50-6, at 1.
The Court finds that Plaintiffs' response to the Defendant's statement does not comply with the requirement in the rules that denials be accompanied to citations in the record where a factual dispute exists. Plaintiffs complain that the medical records cited by the Defendant have not been corroborated. The Court is uncertain what information is necessary to “corroborate” a medical record. The record speaks for itself. Testimony from some other person or source might call into doubt evidence in the medical record and create an issue of fact, but at this point in the litigation Plaintiffs would need to point to some such evidence. Plaintiffs' blanket statement that the records have not been “corroborated” does not create an issue of fact with respect to the information contained in the records. Likewise, Plaintiffs do not argue that the records are inauthentic or fabricated, or that they would be inadmissible at trial. By failing to point to anything in the record to dispute the information in the medical records, Plaintiffs have failed to oppose the facts alleged in Defendant's statement. The Court will accept them as true where supported by the citations to the record.
Plaintiffs' suggestion that they cannot “accurately admit or deny” Defendant's statements about the testimony of their expert because the expert “did not acknowledge the accuracy of the Hospital medical records and reports” is similarly nonsensical. With reference to Defendant's statements of material fact concerning Plaintiffs' expert, Plaintiffs deny a claim that Plaintiffs' counsel wrote the expert report but offer no record citations.
They also fail to cite the record when they deny a claim that the expert “disclaimed the opinion contained in his written report that the standard for intubating a patient in the emergency room requires the use of bite-prevention devices or equipment.” Plaintiffs otherwise admit the truth of other statements about the expert's testimony. For some of those statements, Plaintiffs admit them “with reservation noted during the” deposition. They do not cite to any pages of the deposition where such “reservations” appeared. The Court must therefore conclude that Plaintiffs have not properly opposed the facts claimed in these paragraphs either.[1]
In other words, for the purpose the instant motion, the Court will consider all facts alleged and properly supported in the record to be true. Plaintiffs failed in their obligation to point the Court to portions of the record that supported their opposition to the Defendant's motion, and that failure has consequences.
The evidence in this case indicates that Joseph Papa was an 86-year-old veteran when he was hospitalized at the Albany VAMC from July 22, 2015 until he died on September 8, 2015. Defendant's Statement of Material Facts (“Defendant's Statement”), dkt. # 47-1, at ¶ 1. When admitted, Papa had a medical history of coronary artery disease, congestive heart failure, poorly controlled type II diabetes, anemia, chronic kidney disease, a history of gastro-intestinal bleeding, and chronic blood loss. Id. at ¶ 2. These conditions dated to 2005. Id. Decedent had recently been hospitalized twice. Id. at ¶ 3. In June 2015, Papa underwent a catheterization of three cardiac vessels after a heart attack. Id. In
March 2015, he suffered a gastrointestinal bleed that required multiple blood transfusions. Id.
Joseph Papa appeared at the emergency department at the Albany VAMC on July 22, 2015, complaining of shortness of breath and chest pressure. Id. at ¶ 4. Dianna Langdon, MD, evaluated him at approximately 11:07 p.m., finding Papa in respiratory distress with an oxygenation saturation level of 85%. Id. at ¶¶ 5-6. “An IV was started and he was administered oxygen.”[2] Id. at 7.[3] Decedent underwent a portable chest x-ray, which showed pulmonary edema. Id. at ¶ 8. That edema, combined with elevated proteins created by the heart when working harder than normal, suggested congestive heart failure. Id. The medical records indicate that Papa “was ‘intubated with [a] glidescope without difficulty.'” Id. at ¶ 9. Dr. Langdon concluded that Papa suffered from “‘respiratory failure CFH [congestive heart failure]/pumonary edema.'” Id. Without citing to any evidence, Plaintiffs deny that the intubation occurred without difficulty, and that Dr. Langdon offered that assessment. Plaintiffs' Response at ¶ 9. Decedent “was admitted to the Medical Intensive Care Unit.” Id. at ¶ 10. He had a diagnosis of “shock and pulmonary edema.” Id. Someone made Papa's family aware that he had a “poor prognosis.” Id.
During his hospital stay, decedent developed kidney necrosis, which progressed to
end-stage renal disease. Id. at ¶ 11. He needed regular dialysis. Id. Medical staff attempted to extubate Papa on July 29, 2015, but Papa could not sustain adequate oxygenation because of excessive swelling in the gottis, a poor gag reflex, and secretions. Id. at ¶ 12. Staff re-inserted the tubing that same day. Id. at ¶ 13. Papa developed pneumonia, which doctors treated with antibiotics. Id. Decedent also developed several pulmonary emboli, which are blood clots that travel to the lungs. Id. at ¶ 14. Papa's chronic anemia complicated treatment of the emboli. Id. at ¶ 15. Doctors could not use the blood thinners they often use to prevent emboli because of the anemia. Id.
Papa also developed liver failure related to shock. Id. at ¶ 16. The medical records indicate that decedent had an advance directive beginning on August 31, 2015. Id. at ¶ 17. The directive prohibited use of extraordinary measures “including resuscitation and intubation.” Id. The records further indicate that Decedent's family requested that he be removed from a ventilator, moved out of the ICU and onto a regular floor for palliative care. Id. at ¶ 18. James Papa died on September 8, 2015. Id. at ¶ 19.
James Papa arrived at the Emergency Department on July 22, 2015 in shock and in acute respiratory failure. Id. at ¶ 20. He required placement of a breathing tube-intubation-and mechanical ventilation. Id. Someone-defendant uses the passive voice and does not disclose the actor-gave Papa 4 milligrams of...
To continue reading
Request your trial