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Walcott v. New York Presbyterian Hospital

Supreme Court, New York County

May 28, 2013

MIZPEH WALCOTT, Plaintiff,
v.
THE NEW YORK PRESBYTERIAN HOSPITAL, NEW YORK PRESBYTERIAN HOSPITAL, EVA FISCHER, M.D., and BARRY SHAKTMAN, M.D., Defendants. Index No. 104880/05

Unpublished Opinion

Alice Schlesinger, Judge

In this action that stems from surgeries which the plaintiff had of October 9, 2002, Mizpeh Walcott claims that she developed massive post-surgical infections that caused her a great deal of plain and suffering, not only in the immediate aftermath of the surgery, but intermittently in the ensuing years. The defendants The New York and Presbyterian Hospital, a general surgeon Dr. Eva Fischer, and an OB-GYN Dr. Barry Shaktman, are all moving for summary judgment.

The motion is supported by an affirmation from Dr. Daniel Herron, who is board certified in surgery; specifically, his speciality is minimally invasive surgery. However, it is clear that on October 9, 2002, Ms. Walcott had anything but minimally invasive surgery. Rather, she had a very lengthy combined surgery performed by both defendant doctors. Nobody claims the surgery was contraindicated. It involved both a hernia repair and a bilateral salpingo oophorectomy as part of a hysterectomy.

Ms. Walcott had seen both of these surgeons earlier. When she first went to see Dr. Fischer in February 2001, she complained of a painful umbilical mass. In the following year, specifically in July 2002, Ms. Walcott saw Dr. Shaktman based on a referral by Dr. Fischer because of an ovarian mass that required surgery to rule out cancer. The following month, August 2002, due to worsening abdominal pain, Dr. Fischer ordered a sonogram, which showed adnexal masses. Therefore, the two physicians decided that they would do a combined surgical procedure, which was scheduled for October 9, 2002.

In the original complaint, counsel for the plaintiff asserted a claim for lack of informed consent. However, that claim was withdrawn via the expert affirmation supporting plaintiff's opposition papers. That doctor, a surgeon, acknowledges that plaintiff received informed consent.

The surgery itself proceeded in this fashion. First Dr. Fischer opened the abdomen. Then Dr. Shaktman did a bilateral complete hysterectomy, and then Dr. Fischer returned to repair the patient's hernia with surgical mesh. Ms. Walcott remained in the hospital until October 13. From the records, it appears that Dr. Fischer saw her on the 10th, the day after the surgery, but there is no indication that this doctor saw Ms. Walcott any day after that. There is no dispute here that it was Dr. Fischer who closed the patient at the conclusion of the procedure. Therefore, in my final disposition of this motion, I will be distinguishing between the surgeons here and intend to dismiss all claims against Dr. Shaktman.

The moving defendants' expert, Dr. Herron, states that he reviewed all of the medical records as well as legal papers in this action, including the examinations before trial. However, he does not specify precisely which examinations he reviewed. That omission is particularly significant because both the plaintiffs March 2, 2009 account of what happened on October 29, 2002, and the account by her daughter' Mizpeh Walcott-Francis who was deposed on May 7, 2009, describe a somewhat ghastly visit with Dr. Eva Fischer, which Dr. Herron does not comment on at all.

Dr. Herron's position is that neither the doctors nor the hospital did anything wrong here. Further, he insists that Ms. Walcott did not in fact suffer from an intra-abdominal infection; rather, she suffered from an abdominal wound infection and superficial dehiscence. In other words, he claims that there was no opening of the muscular layer of the abdomen, nor any protrusion of the intestines. He states further that this kind of wound infection is not uncommon, particularly when dealing with repairs of large hernias. Further, Dr. Herron says that Ms. Walcott had a number of comorbidities that increased her risk of complications. These included chronic obstructive pulmonary disease (COPD), diabetes, morbid obesity and a history of Hepatitis B.

Dr. Herron describes the way in which the surgery was performed and then indicates that the records show that vancomycin was given to Ms. Walcott prophylactically and that ciproflaxacin was given post-operatively. He says further, pursuant to the operative report, that a Jackson-Pratt drain was placed on top of the mesh to minimize the risk of fluid collection.

After the operation, although Ms. Walcott had some fever and an elevation in her white blood count, she did not appear to have an infection. On the day of discharge, October 13, 2002, she had no fever. According to the records, her dressing was clean and dry and there was minimal tenderness over the incision site. She was free of nausea, chills, fever or vomiting. Upon discharge, she was advised to follow up with Dr. Fischer in one week and with Dr. Shaktman in two weeks. Dr. Herron says that the discharge was appropriate pursuant to the manner in which the patient presented on that date.

Between October 13 and October 29, Ms. Walcott made no complaints to any of the defendants. Dr. Herron then simply relates that the plaintiff, instead of returning to see Dr. Fischer in one week, waited over two weeks to see her on October 29, 2002. With regard to the October 29 visit, Dr. Herron completely ignores the sworn testimony of Ms. Walcott and her daughter. Instead, he opines that Dr. Fischer, on that date, administered appropriate wound care. He describes that the wound was opened and that seroma fluid was drained from it. Then the wound was packed. Dr. Herron then states that Dr. Fischer first became aware of any wound infection on that date.

On the subject of the wound, Dr. Herron refers to the claim made by the plaintiff that Kling gauze was used and left behind at the conclusion of the surgery. It was this gauze, which she saw removed from her abdomen on October 29, 2002, that presumably contributed to her infection. However, Dr. Herron insists that pursuant to the records of the hospital, Kling gauze was not used and that in fact no packing was used until the infected site was cleaned on October 29, 2002.

Dr. Herron then states that Dr. Fischer next saw Ms. Walcott on November 5, 2002, when again her wound was properly debrided. She was told on that date to come back in a week, but she did not return until December 3, 2002. However, Dr. Herron acknowledges that in the interim time, ...


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