Staab v. Long Island Jewish Med. Ctr.
| Docket Number | Index 701455 2019 |
| Decision Date | 19 November 2021 |
| Citation | 2021 NY Slip Op 33081 (U) |
| Parties | KRISZTINE STAAB and JESSE STAAB, Plaintiff v. LONG ISLAND JEWISH MEDICAL CENTER, et. al., Defendants |
| Court | New York Supreme Court |
Motion Date July 21, 2021
Present: HONORABLE PETER J. O'DONOGHUE Justice
The following papers read on this motion by defendants Lauren Scanlon, M.D., Reena Malhotra, M.D., and Long Island Jewish Medical Center (LIJMC) for an order granting summary judgment in their favor; granting summary judgment dismissing the claim of lack of informed consent; granting summary judgment dismissing the claim for punitive damages; and granting partial summary judgment dismissing all individual claims which the moving defendants make a prima facie showing and plaintiffs do not rebut. Plaintiffs cross move for an order granting partial summary judgment in their favor against Lynda Piboon, Lauren Scanlon, M.D. and LIJMC on the claim for negligence per se.
Numbered
Notice of Motion-Affirmations-Statement of Material Facts-Exhibits.
Notice of Cross Motion-Statement of Material Facts-Counter Statement of Material Facts-Affirmation-Affidavits-Exhibits.....
Opposing Affirmation-Exhibit...............................................................
EF 173-174
Response to Statement of Material Facts-Affirmation...........................
EF 178-179
Reply Affirmation-Exhibits....................................................................
Upon the foregoing papers the motions and cross motion are determined as follows:
Plaintiffs' commenced this action on January 25, 2019, and assert causes of action against all defendants for negligence, medical malpractice, lack of informed consent, negligence per se negligent infliction of emotional distress, intentional infliction of emotional distress, assault, battery and loss of services. In addition, plaintiffs allege a cause of action against LIJMC for negligent retention and supervision, the failure to formulate rules and regulations and the failure to supervise the treatment of plaintiff Krisztina Staab.
Plaintiffs in essence, allege that defendants misdiagnosed an ectopic pregnancy in Ms. Staab's left fallopian tube based, in part, on an ultrasound performed in the Emergency Department of LIJMC that resulted in the performance of an unnecessary and unauthorized bilateral salpingectomy. Plaintiffs also allege that the defendants failed to obtain proper informed consent from the patient prior to the procedure. It is alleged that defendants' acts of negligence and/or omissions occurred approximately from March 12, 2018 through March 28, 2018. As to all defendants it is alleged that plaintiff Krisztina Staab sustained the following injuries and complications as a result of the defendants' alleged negligence: unnecessary sterilization; removal of both fallopian tubes; loss of her child; excruciating uterine pain; effects of morphine administrations; surgery; inability to have children; severe emotional distress and anguish severe physical distress and anguish; physical impairment shock and trauma; excruciating abdominal pain; internal bleeding and blood loss; severe chest pain; uterine rupture; internal muscle tears; mental and emotional anguish; emotional trauma; depression; anxiety; and severe physical pain and suffering.
Issue has been joined as to all defendants.
Plaintiff, Krisztina Staab began treatment at co-defendant, Mayer J. Saad, M.D., P.C. d/b/a The Woman's Health Pavilion (WHP) on April 28, 2007, at which time she reported that one week earlier, she had a positive pregnancy test; however, she was symptomatic with cramps and bleeding upon presentation. Her obstetrical history was significant for one prior Cesarean section (2003), one spontaneous abortion, and one termination of pregnancy. At the time of her 2003 Cesarean section, and verified through imaging thereafter, plaintiff was diagnosed with a bicornuate and septate uterus. The sonogram performed on April 28, 2007 revealed a potential heterotopic pregnancy (an ectopic pregnancy and intrauterine pregnancy that exist simultaneously). A follow up ultrasound showed evidence of fetal demise and on May 29, 2007, Ms. Staab underwent a dilation and curettage (D & C) for a missed abortion. On August 20, 2008, plaintiff presented to Woman's Health Pavilion for a followup, at which time it was noted that plaintiff had taken "Plan B" two weeks earlier. Plaintiff gave birth to a second child on April 1, 2009, at which time she had a Cesarean delivery. .
The WHP's records note that on July 21, 2010, plaintiff was considering a bilateral tubal ligation versus Essure (bilateral occlusion of the fallopian tubes). On March 9, 2011, these procedures were again discussed, with a plan for elective sterilization and it was noted that the patient was to be recommended for pre-operative testing. A laparoscopic bilateral tubal ligation scheduled for May 16, 2011, was rescheduled to be performed on June 13, 2011. Dr. Stephen E. Scarantino was to perform said procedure. However, Ms. Staab did not go through with this procedure.
On March 12, 2018, Ms. Staab presented to the WHP with complaints of amenorrhea, stomach pain and bleeding, with her last menstrual period on March 10, 2018. The medical records note that this was a "desired pregnancy." Her medical records state that she reported light brown/red vaginal bleeding, but heavier bleeding over the weekend similar to her menses. On speculum examination, there was moderate brown-red blood noted (50-100 cc in the vaginal vault). Nurse Practitioner Courtney Haggerty ordered a transvaginal ultrasound which revealed a retroverted fibroid uterus. Said ultrasound revealed a possible gestational sac consistent with a 5 week 4 day gestation, but with no yolk sac, fetal pole or fetal heartrate. The ultrasound was unable to rule out an ectopic pregnancy. The beta hCG blood test taken that day was 13, 812 mIU/mL, consistent with gestation of approximately six weeks. On March 14, 2018, Ms. Staab returned to the WHP for a repeat blood test, at which time her beta hGC level was 14, 167.
WHP's records include an untimed note for March 16, 2018, stating that Ms. Staab went to the WHP that day for a repeat sonogram which indicated that there was no evidence of an intrauterine pregnancy. Another untimed note indicated the possibility of a missed abortion or ectopic pregnancy. The patient was given strict ectopic precautions, and surgical management was being planned for Monday or Tuesday.
On March 16, 2018, Ms. Staab went to the emergency room of LIMCJ at 7:24pm, accompanied by her sister. Ms. Staab testified at her deposition that her sister had called WHP and that she had been told to go the emergency room for at worsening pelvic pressure and lumbar and suprapubic pain. At LIJMC, Ms. Staab reported that her last visit to her OB/GYN was the prior Monday (March 12th) at which time she understood that her b-hCG level was increasing, but there was no intrauterine pregnancy. She reported that a prior ultrasound reportedly demonstrated increased blood flow to the fallopian tube; that she experienced nausea/vomiting, and vaginal bleeding with clots several days prior to March 16; and was experiencing light spotting at the time of the presentation. She reported a history of three prior miscarriages, but no ectopic pregnancies. An ectopic was to be ruled out.
LIJMC's medical records establish that the emergency department attendings (Dr. Daniel Dexeus and Dr. Mir Raza) documented that the patient had pelvic pain for a day, mostly in the left lower quadrant. She reported menstrual cramps and vaginal bleeding. An intrauterine pregnancy had not been confirmed as of yet, but her b-hCG was up-trending in the office. She was sent to the ED due to pain and concern for an ectopic pregnancy. She was then noted to report right lower quadrant tenderness (in the ED she reported bilateral lower quadrant tenderness, more on the left), and there is a reference to "declines right pelvic management". She had a prior history of pelvic infection following a miscarriage. Dr. Raza ordered a transvaginal ultrasound that was reviewed by Dr. Reena Malhotra. The ultrasound report was electronically signed by a radiology resident, and was reviewed, edited, and electronically signed by Dr. Malhorta, the attending radiologist. The ultrasound report was re-directed to Dr. Piboon. Dr. Malhorta testified at her deposition that she was employed by LIJMC; that on March 16, 2018, she working from home and was not physically present in LIJMC when she reviewed the ultrasound images and report; and that she never met Ms. Staab or had any contact with her.
The clinical information in the ultrasound report included a report of left-sided pain since the morning; it was noted that Ms. Staab had multiple prior pregnancies and prior cesarian section; that she had experienced mild vaginal bleeding since Saturday (March 10); that there was a question of whether there was an ectopic pregnancy; that the b-hCG was 17, 811 and the gestational age by the last menstrual period was 6 weeks, 1 day. The uterus was noted to have several fibroids, measuring 5.2 x 4.5 x 5.0, 5.6 x 4.3 x 6.0, and 6.7 x 6.4 x 6.4 cm; that there was no gestational sac identified in the endometrial cavity. The report states that the left adnexa demonstrated marked dilation of the left fallopian tube with ill-defined echogenic material within the tube concerning for hemorrhagic material; a rounded...
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