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ROBINSON v. ADIRONDACK MEDICAL CENTER

February 7, 2003

JOYCE ROBINSON, AS SUCCESSOR IN INTEREST AND SURVIVING HEIR TO DECEDENT, VERNON MILLER, PLAINTIFF,
v.
ADIRONDACK MEDICAL CENTER; JOHN A. ESPER, M.D., AS AN INDIVIDUAL AND IN HIS OFFICIAL CAPACITY AT THE ADIRONDACK MEDICAL CENTER; C. DAVID MERKEL, M.D., AS AN INDIVIDUAL AND IN HIS OFFICIAL CAPACITY AT THE ADIRONDACK MEDICAL CENTER; AND JAY FEDERMAN, M.D., AS AN INDIVIDUAL AND IN HIS OFFICIAL CAPACITY AS MEDICAL DIRECTOR OF THE ADIRONDACK MEDICAL CENTER, DEFENDANTS.



The opinion of the court was delivered by: Hurd, District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff Joyce Robinson commenced the instant medical malpractice action on May 4, 2001, arising out of the death of her son, Vernon Miller ("Miller"). Defendants Adirondack Medical Center ("AMC"), John A. Esper, M.D. ("Dr. Esper"), and Jay Federman, M.D. ("Dr. Federman") now move for summary judgment pursuant to Fed.R.Civ.P. 56 seeking dismissal of the Complaint in its entirety.*fn1 Plaintiff opposes. Plaintiff also moves to continue the trial date and to retain an alternate expert. Defendants oppose. Oral argument was heard on September 27, 2003, in Albany, New York. Decision was reserved.

II. FACTS

On May 30, 1999, Miller was incarcerated at the Federal Correctional Institute in Ray Brook, New York ("FCI Ray Brook"). (Pl.'s Resp. to Defs'. Stmnt. of Mat. Facts at ¶ 1.)*fn2 At approximately 8:30 p.m. on May 30, 1999, another inmate stabbed Miller in the left anterior chest, just below the collar bone. (Id. at ¶ 2; Pl. Exs. 1, 3.) Miller was transported via ambulance to the AMC. (Pl.'s Resp. ¶ 3.) Dr. Esper, an employee of AMC, was notified of Miller's injury and condition before the ambulance arrived at the hospital. (Def. Ex. E — Esper Aff. at ¶ 4.) Dr. Esper then notified a surgeon, C. David Merkel, M.D. ("Dr. Merkel"), who was present in the hospital, about Miller's imminent arrival. (Id.) Dr. Merkel is a private physician with admitting privileges at the hospital. (Def Ex. J; Sarr Aff. at ¶ 2)

There are numerous discrepancies in the record regarding the timing of events. Records indicate that Miller arrived in the emergency room sometime between 9:10 and 9:24 p.m. Dr. Esper was the emergency room physician who cared for Miller upon his arrival at the emergency room. (Esper Aff. at ¶ 4.) As part of the emergency care, Dr. Esper ordered a portable chest x-ray, a Foley catheter and the administration of blood, oxygen, and intravenous fluids. (Id. at ¶¶ 5, 6.) Dr. Merkel also was present in the emergency room. (Pl. Ex. 2.) At approximately 9:32 p.m.,*fn3 Dr. Merkel placed "[a] chest tube . . . through a midaxillary stab wound." (Pl. Exs. 1, 2.) Blood was provided to Miller. (Id.) At approximately 9:53 p.m., Miller was given a third unit of blood and was awaiting transfer to the operating room. (Pl. Ex. 2.) At approximately 10:05 p.m., Miller was transferred to the operating room. (Def. Ex. F.) At approximately 10:15 or 10:17 p.m., Miller suffered cardiac arrest. (Pl. Ex. 3.) CPR was started. (Id.) Dr. Esper performed a needle pericardiocentesis. (Esper Aff. at ¶ 7; Pl. Ex. 1.) Miller's heart was inspected for tamponade, which was not found. (Id.) Basic life support was started at approximately 10:20 p.m and terminated at 10:48 p.m. (Id.) Miller was pronounced dead at 10:48 p.m. (Id.)

III. STANDARD OF REVIEW

A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The ultimate inquiry is whether a reasonable jury could find for the nonmoving party based on the evidence presented, the legitimate inferences that could be drawn from that evidence in favor of the nonmoving party, and the applicable burden of proof. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In determining a motion for summary judgment, all inferences to be drawn from the facts contained in the exhibits and depositions "must be viewed in the light most favorable to the party opposing the motion." United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Hawkins v. Steingut, 829 F.2d 317, 319 (2d Cir. 1987). Nevertheless, "the litigant opposing summary judgment `may not rest upon mere conclusory allegations or denials' as a vehicle for obtaining a trial." Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)).

IV. DISCUSSION

On a motion for summary judgment, the defendants must first make a prima facie showing that they were not negligent in treating plaintiff. Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324-25 (1986). If the defendants satisfy this burden, the plaintiff "must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact." Id.

Defendants have met this burden by submitting expert affidavits and reports stating that Dr. Esper rendered proper care to Miller. One of defendants' experts, Roger Barrowman, M.D. ("Dr. Barrowman"), stated in his report that:

Dr. Esper supervised an organized plan of treatment for a trauma victim . . . . He facilitated the contact of the surgeon and the OR team. . . . He placed a chest tube in the patient while in the E.D. [Emergency Department] and decided to take the patient to the OR [operating room]. I believe that was a wise decision at the time. A controlled and better-equipped operating room environment would normally provide a better chance of successful outcome than an E.D. "crash" thoracotomy. Retrospectively, with the autopsy information, the decision was further supported. The wound clearly required definitive surgical repair, which could not have been performed in the ED. Unfortunately, the patient's wound was so severe that the readiness of the OR was impossible in the short time required. . . . The issue of elapsed time in the sequence of events may be argued as being excessive and contributing to the patient's death. . . . I agree that given the patient's injury, there was a brief period of time when he may have been saved and that saving this patient would have required surgery very soon after the initial event. One can only speculate on the exact length of time of this window of opportunity, but in this patient, it was obviously less than the approximately 1 hour and 47 minutes from injury to cardiac arrest.
However, I disagree that providing such care was possible given the circumstances in this case. . . . [O]pening a patient's chest in a suboptimal environment, i.e., in the field or the ED, is associated with a mortality approaching 100%. . . . [S]uch a "crash" thoracotomy . . . would have been a difficult procedure . . . and the expertise (and time) necessary to dissect, localize, and repair the bleeding vessel would have precluded anything but an OR procedure. . . .
The emergency care in this case was excellent. The mortality for this type of injury is very high even in large academic urban trauma centers under the best of circumstances. There was no ...

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