Sharpe v. West Side Hematology & Oncology, P.C.
| Decision Date | 21 October 2011 |
| Docket Number | Index No. 114639/04 |
| Citation | 2007 NY Slip Op 34472 |
| Court | New York Supreme Court |
| Parties | LOUIS SHARPE, as Administrator of the Estate of JULIA PIETRI, and LOUIS SHARPE, Individually, Plaintiffs, v. WEST SIDE HEMATOLOGY & ONCOLOGY, P.C., GABRIEL A. SARA, M.D., and BASSAM J. ABI-RACHED, M.D., Defendants. |
Pursuant to CPLR 3211 and 3212, defendants West Side Hematology & Oncology, P.C. ("Hematology") and Gabriel A. Sara, M.D. ("Dr. Sara") move for summary judgment to dismiss the action commenced by plaintiffs Louis Sharpe ("Mr. Sharpe"), as Administrator of the Estate of Julia Pietri ("Ms. Pietri"), and Mr. Sharpe, individually. Plaintiffs oppose the motion.*
On March 25, 2002, Ms. Pietri presented at Hematology to determine whether the mass in her left groin was Hodgkin's Lymphoma. Affirmation in Support of Motion ("Aff."), at ¶ 7. On April 17, 2002, doctors at Hematology - including Dr. Sara and Dr.Abi-Rached - completed testing on Ms. Pietri and determined that she had Stage IIB and/or Stage IIIB Hodgkin's disease. Aff., at ¶ 8. They recommended Adriamycin Bleomycin Vinblastine Dacarbazine ("ABVD") chemotherapy. Id. As a precaution, Dr. Sara first recommended a check of Ms. Pietri's lung function, which tested normal. Aff., at¶ 9. Dr. Abi-Rached then explained to Ms. Pietri that Bleomycin carries a specific risk of lung toxicity and asked Ms. Pietri to sign an informed consent form, which she did. Id.
On April 30, 2002, Ms. Pietri underwent her first regimen of chemotherapy, which consisted of 40 mg of Adriamycin, 15U of Bleomycin, 10 mg of Vinblastine and 600 mg of Dacabazine. Aff., at ¶ 10. Ms. Pietri received the same doses of ABVD therapy at her second treatment on May 14, 2002. Aff., at ¶ 11. During the entirety of her chemotherapy regime, Ms. Pietri made weekly visits to Hematology to receive shots of Neupogen (a drug used to prevent infection and neutropenia in chemotherapy patients) from a staff nurse. Id. According to Hematology's records, at no time did Ms. Pietri complain to the nurse of sickness or symptoms of lung toxicity. Id.
On May 28, 2002, Ms. Pietri began her second cycle of chemotherapy. Aff., at ¶ 12. She returned for another dose on June 11, 2002, at which time she complained of fatigue, but denied vomiting or feeling nauseous. Aff., at ¶ 13. On this date, the doctor examining Ms. Pietri noted "few crackles at both [lung] bases, otherwise clear to auscultation and percussion." Opp., at ¶ 21.
Two weeks later, on June 25, 2002, Ms. Pietri entered her third cycle of chemotherapy. Aff., at ¶ 14. She returned on July 9, July 23 and August 6 for further treatment. Aff., at ¶ 15. Throughout this period, she developed a minor rash and continued to experience fatigue, but presented no symptoms of lung toxicity. Aff., at ¶ 14. Nonetheless, Dr. Sara instructed Ms. Pietri to undergo additional pulmonary function testing before beginning the next round of treatment. Affirmation in Opposition ("Opp."), at ¶ 24.
On August 19, 2002, Ms. Pietri presented at Hematology complaining of discomfort in her chest, especially on the right side. Aff., at¶ 16. She did not, however, state that she had shortness of breath, bloody sputum or that she had been coughing. Id. Dr. Sara examined her lungs and determined that they were normal. Id. Moreover, despite Ms. Pietri's failure to go for the recommended interim pulmonary function testing, Dr. Sara administered another round of chemotherapy. Opp., at ¶ 24.
Ms. Pietri underwent pulmonary function testing on August 22, 2002. Opp., at ¶ 28. Five days later, on August 27, 2002, Ms. Pietri's treating pulmonologist called Hematology to report that the tests revealed worsening spirometry, lung volume and diffusing capacity. Aff., at ¶ 17. The doctor recommended that Ms. Pietri no longer be administered Bleomycin. Id. On September 2, 2002, Ms. Pietri began taking Prednisone to treat her lung symptoms. Aff., at ¶ 18. Thereafter, on September 9, 2002, a chest x-ray revealed reticular infiltrates. Aff., at ¶ 19.
Ms. Pietri last visited Hematology on September 17, 2002, at which time she received her last dose of chemotherapy. Aff., at ¶ 20. She reported feeling well, but had persistent bilateral crackles in both lung bases. Id. She was diagnosed with lung toxicity from Bleomycin and instructed to continue Prednisone. Id.
On September 27, 2002, Ms. Pietri presented at St. Luke's Roosevelt Hospital complaining of weight loss, weakness, decreased appetite and diarrhea. Aff., at ¶ 21. She did not, however, notify Hematology of her hospitalization and doctors at St. Luke's did not continue to administer Prednisone. Aff., at ¶¶21-22.
On September 30, 2002, Ms. Pietri restarted Prednisone. Aff., at ¶ 22. Nonetheless, she died October 12, 2002 of pulmonary fibrosis. Id.
In this medical malpractice action commenced October 14, 2004 - plaintiffs claim that defendants negligently treated Ms. Pietri with ABVD chemotherapy for her Hodgkin's Lymphoma and failed to properly obtain her informed consent. Aff., at ¶¶4,32. They claim that as a result of defendants' negligence, Ms. Pietri suffered Bleomycin toxicity, causing her death. Id.
Defendants now move for summary judgment dismissal of plaintiffs' actions. Aff., at ¶ 40. They rely on the affirmation of Paul A. Feffer, M.D. ("Dr. Feffer"), a physician board certified in internal medicine with sub-certifications in hematology and medical oncology. Affirmation of Dr. Feffer ("Feffer Aff."), at ¶ 1. Dr. Feffer opines to a reasonable degree of medical certainty, after review of the records and testimony in this case, that defendants did not depart from accepted standards of medical care in treating Ms. Pietri. Id.
In particular, Dr. Feffer avers that Ms. Pietri was properly treated with six cycles of ABVD chemotherapy and that there was no reasonable alternative to treatment that did not include Bleomycin. Feffer Aff., at ¶¶3,4. The doctor concludes, moreover, that Ms. Pietri was advised of the need to undergo repeat pulmonary function testing before the fourth cycle of treatment and negligently failed to do so. Feffer Aff., at ¶ 8. Dr. Feffer opines that Ms. Pietri presented no symptoms of lung toxicity on August 19, 2002, and therefore, defendants were correct to proceed with chemotherapy treatment despite Ms. Pietri's failure to undergo further pulmonary function tests. Id. Finally, Dr. Feffer states that Ms. Pietri was appropriately informed of the risks and benefits of treatment and that lung toxicity is a common side-effect of Bleomycin. Feffer Aff., at ¶ 7.
Plaintiffs oppose summary judgment, relying on the affirmation of a physician board-certified in internal medicine with a sub-speciality in hematology. Opp., Ex. 1, at ¶ 1. The doctor opines to a reasonable degree of medical certainty, after review of the medical records and testimony in this case, that defendants departed from accepted standards of medical care in treating Ms. Pietri. Opp., Ex. 1, at ¶ 4.
Specifical ly, the physician avers that defendants did not properly monitor Ms. Pietri's lung functions or treat her with corticosteroids after she developed lung difficulties. Opp., Ex. 1, at ¶ 4. The doctor also states that defendants should not have administered Bleomycin to Ms. Pietri on August 19, 2002 because she had not yet undergone appropriate pulmonary function tests. Opp., Ex., at ¶ 10. The expert concludes that these departure proximately caused Ms. Pietri's untimely death. Opp., Ex. l,at ¶4. Plaintiffs' expert does not, however, discuss Ms. Pietri's lack-of-informed-consent claim.
Summary judgment is a "drastic remedy" that should not be granted if there is any doubt as to the existence of a triable issue. Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); see also Greenidge v. HRH Constr. Corp., 279 A.D.2d 400, 403 (1st Dept. 2001); DuLuc v. Resnick, 224 A.D.2d 210, 211 (1st Dept. 1996). Indeed, because summary disposition serves to deprive a party of its day in court, relief should not be granted if an issue of fact is even "arguable." Henderson v. City of New York, 178 A.D.2d 129, 130 (1st Dept. 1991).
Further, "on a defendant's motion for summaryjudgment, opposed by plaintiff, [the court is] required to accept the plaintiff's pleadings, as true, and [its] decision 'must be made on the version of the facts most favorable to [plaintiff].'" Byrnes v. Scott, 175 A.D.2d 786, 786 (1st Dept. 1991).
The proponent of a summary judgment motion has the burden of making a prima facie showing of entitlement to judgment as a matter of law. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324(1986).
Once the movant has made this showing, the burden then shifts to the opponent of summary judgment to establish, through competent evidence, that there is a material issue of fact that warrants a trial. Alvarez v. Prospect Hosp., 68 N.Y.2d, at 324. In a medical malpractice action, the opponent of summary judgment must present evidence that the defendant physician departed from good and accepted medical practice, Lyons v. McCauley, 252 A.D.2d 516 (2d Dept. 1998), lv. denied, 92 NY.2d 814, and that defendant's wrongful conduct proximately caused plaintiff's injuries. Hoffman v. Pelletier, 6 A.D.3d 889 (3d Dept. 2004); Hanley v. St. Charles Hosp. and Rehabilitation Ctr., 307 A.D.2d 274 (2dDept. 2003). This evidence must generally be set forth through an expert affidavit. Chase v. Cayuga Med. Ctr., 2 A.D.3d 990 (3d Dept. 2003).
If the nonmovant submits an admissible affidavit from a competent expert showing the existence of a triable issue of fact as to whether defendants were negligent, the summaryjudgment motion must be denied. See, Cooper v. St. Vincent's Hosp., 290 A.D.2d 358 (1st Dept. 2002); Dellert v. Kramer, 280 A.D.2d 438 (1st Dept. 2001); Morrison v. Altman, 278 A.D.2d 135 (1st Dept. 2000); Avacato v. Mount Sinai...
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