Seliger v. Wagner

• Decision Date: 01 June 2021
• Docket Number: 003 MotD,004 MG,Index No. 621243/2018,Mot. Seq. Nos. 002 MD
• Citation: 2021 NY Slip Op 33551 (U)
• Parties: KRYSTA SELIGER and JORDAN SELIGER, Plaintiffs, v. JOHN WAGNER, M.D., JOHN WAGNER, M.D., PLLC, WGM OBSTETRICS AND GYNECOLOGY, P.C., KIP L. BODI, M.D., KIP L. BODI, PHYSICIANS, FACS, PLLC, AMANDA HILL, PA., HUNTINGTON HOSPITAL ASSOCIATION, NORTHWELL HEALTH, INC., Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33551(U)

KRYSTA SELIGER and JORDAN SELIGER, Plaintiffs,
v.
JOHN WAGNER, M.D., JOHN WAGNER, M.D., PLLC, WGM OBSTETRICS AND GYNECOLOGY, P.C., KIP L. BODI, M.D., KIP L. BODI, PHYSICIANS, FACS, PLLC, AMANDA HILL, PA., HUNTINGTON HOSPITAL ASSOCIATION, NORTHWELL HEALTH, INC., Defendants.

Index No. 621243/2018, Mot. Seq. Nos. 002 MD, 003 MotD, 004 MG

Supreme Court, Suffolk County

June 1, 2021

Unpublished Opinion

MOTION DATE: 2/25/21 (002), 2/25/21 (003), 3/25/21 (004)

ADJ. DATE 4/8/21

DUFFY & DUFFY Attorney for Plaintiffs

FUREY, FUREY, LEVERAGE & DARLINGTON, P.C. Attorney for Defendants John Wagner, M.D., John Wagner, M.D., PLLC, WGM Obstetrics and Gynecology, P.C.

HEIDELL, PITTONI, MURPHY & BACH, LLP Attorney for Defendants Kip L. Bodi, M.D, Kip M. Bodi, Physicians, FACS, PLLC, Amanda Hill, P.A., Huntington Hospital Association, and Northwell Health, Inc.

Hon. JOSEPH A. SANTORELLI Justice

Upon the following papers read on these motions for summary judgment : Notice of Motion/ Order to Show Cause and supporting papers filed by defendants John Wagner. M.D., John Wagner. M.D., PLLC. and WGM Obstetrics and Gynecology. P C, on January 27,2021: filed by defendants John Wagner. M.D., John Wagner. M.D., PLLC. and WGM Obstetric and

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Gynecology, P.C., on January 27, 2021; filed by defendants Kip L. Bodi, M.D., Amanda Hill, P.A., Huntington Hospital Association, and Northwell Health, Inc., on January 29, 2021; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers filed by plaintiffs, on March 25, 2021; Replying Affidavits and supporting papers filed by defendants John Wagner, M.D., John Wagner, M.D., PLLC, and WGM Obstetrics and Gynecology, P.C., on April 6, 2021; Other___; it is

ORDERED that the motion (#002) by defendants John Wagner, M.D., John Wagner, M.D., PLLC, and WGM Obstetrics and Gynecology, P.C., the motion (#003) by defendants John Wagner, M.D., John Wagner, M.D., PLLC, and WGM Obstetrics and Gynecology, P.C., and the motion (#004) by defendants Kip L. Bodi, M.D., Amanda Hill, P.A., Huntington Hospital Association, and Northwell Health, Inc., are consolidated for the purposes of this determination; and it is further

ORDERED that the motion (#002) by defendants John Wagner, M.D., John Wagner, M.D., PLLC, and WGM Obstetrics and Gynecology, P.C., for summary judgment dismissing the complaint (#002), which was superceded by their subsequent motion for summary judgment, is denied, as moot, and it is further

ORDERED that the motion (#003) by defendants John Wagner, M.D., John Wagner, M.D., PLLC, and WGM Obstetrics and Gynecology, P.C., for summary judgment dismissing the complaint as asserted against them is granted in part, and denied in part.

ORDERED that the unopposed motion (#004) by defendants Kip L. Bodi, M.D., Amanda Hill, P.A., Huntington Hospital Association, and Northwell Health, Inc., is granted.

This is a medical malpractice action brought to recover damages for injuries allegedly arising from the treatment of plaintiff Krysta Seliger by defendants John Wagner, M.D., John Wagner M.D., PLLC, WGM Obstetrics and Gynecology, P.C. (WGM), Kip L. Bodi, M.D., Amanda Hill, P.A., Huntington Hospital Association (Huntington Hospital), and Northwell Health, Inc. Plaintiff alleges, inter alia, that Dr. Wagner negligently performed a total hysterectomy, causing injury to her left ureter, and that he failed to appreciate the injury intraoperatively. Plaintiff further alleges that Dr. Bodi did not appreciate the injury to her ureters during his treatment. Plaintiff asserts causes of action sounding in medical malpractice, negligent hiring, and lack of informed consent. Plaintiff s husband, Jordan Seliger, sues derivatively for loss of services.

The facts, subject to some dispute, can be summarized as follows: Plaintiff was a 37-year-old woman with a history of uterine fibroids, which were confirmed by a CT scan on May 17, 2017. Plaintiff was seeing Dr. Joseph Koka as her gynecologist, who recommended a hysterectomy for the treatment of her fibroids. Plaintiff desired to have an abdominoplasty procedure at the same time as a hysterectomy, which was to be performed at Huntington Hospital, by her plastic surgeon, Dr. Ian Bourhill. However, Dr. Koka did not have privileges at Hungtinton Hospital, and plaintiff was referred to Dr. Wagner for the hysterectomy procedure. On December 13, 2017, plaintiff presented to Dr. Wagner and WGM for an initial consultation. Dr. Wagner performed a physical examination, and obtained plaintiffs medical and surgical history. Dr. Wagner testified that he observed plaintiff s uterus to be 16 weeks in size, and that he explained the options for treatment. Dr. Wagner testified that due to the size of her uterus, plaintiff was not a candidate for IUD, birth control, or ablation therapies for treatment. He testified that he explained the options of hysterectomy, including total versus

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supracervical, open verus laparoscopic, and whether to remove her fallopian tubes and/or ovaries to reduce her cancer risk. He also testified that he discussed the risks and benefits of each procedure. Dr. Wagner testified that after their discussion, the plan was for a laparoscopic supracervical hysterectomy and salpingectomy. '

On December 28, 2017, plaintiff called Dr. Wagner to ask additional questions. On January 8, 2018, plaintiff again called Dr. Wagner to request that her hysterectomy be performed as an open procedure, rather than laparoscopically, so that Dr. Bourhill could perform an abdominoplasty at the same time. Dr. Wagner testified that he further discussed the risks of an open procedure, and specifically counseled the patient about an increased risk of blood loss, as she would refuse blood transfusions due to her religion. Dr. Wagner testified that the plan now called for Dr. Bourhill to act as the primary surgeon, and that he would do an intraoperative consultation to perform the hysterectomy and bilateral self-injectomy, and that Dr. Bourhill would be responsible for the pre-operative work-up for plaintiff. Dr. Wagner testified that he requested a preoperative consultation with plaintiff.

On January 16, 2018, plaintiff testified that she underwent presurgical testing at Huntington Hospital. On January 24, 2018, plaintiff met with Dr. Wagner for a final preoperative visit. Dr. Wagner testified that he obtained plaintiffs formal informed consent, that she signed consent forms, and that all preoperative testing was completed. Dr. Wagner testified that he discussed specific surgical risks, including injury to blood vessels, bowel, ureters, and bladder, and that he arranged for a cell-saver to be in the operating room, as plaintiff would refuse blood transfusions. Dr. Wagner further testified that postoperative care would be deferred to Dr. Bourhill's team.

On January 26, 2018, plaintiff presented to the Ambulatory Surgery Center at Huntington Hospital. Dr. Wagner testified that it was custom and practice for Dr. Bourhill to begin the surgery by exposing the abdomen to where Dr. Wagner had to visualize to perform the hysterectomy. Dr. Wagner testified that he was called in to the procedure, and was assisted by Ms. Hill, who had already been present and assisting Dr. Bourhill. Dr. Wagner testified that he encountered multiple adhesions in plaintiffs abdomen, and that he spent approximately 20 to 25 minutes performing adhesiolysis. Dr. Wagner testified that he found a uterine fibroid, as well as a large cervical fibroid and a large vaginal fibroid. He further testified that he removed the uterus, cervix and vaginal fibroid, and that he traced plaintiffs ureters down to the cardinal ligament. He testified that he dissected the ureters to clear them away from the operative field. Dr. Wagner testified that after he completed his procedure, he closed the fascia, and turned the case back over to Dr. Bourhill. Dr. Wagner further testified that Dr. Bourhill would manage plaintiffs postoperative...