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Wilk v. James

Supreme Court of New York, Fourth Department

June 7, 2013

JOANNE WILK, AS ADMINISTRATRIX OF THE ESTATE OF STEVEN R. WILK, DECEASED, PLAINTIFF-RESPONDENT,
v.
DAVID M. JAMES, M.D., KALEIDA HEALTH, DOING BUSINESS AS MILLARD FILLMORE HEALTH SYSTEM-THREE GATES CIRCLE HOSPITAL, SADIR ALRAWI, M.D., MERCY AMBULATORY CARE CENTER, CATHOLIC HEALTH SYSTEM, INC., BUFFALO EMERGENCY ASSOCIATES, LLP, DEFENDANTS-APPELLANTS, ET AL., DEFENDANTS.

Appeals from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered July 14, 2011 in a medical malpractice action. The order denied the motions of defendants David M. James, M.D., Kaleida Health, doing business as Millard Fillmore Health System-Three Gates Circle Hospital, Sadir Alrawi, M.D., Mercy Ambulatory Care Center, Catholic Health System, Inc., and Buffalo Emergency Associates, LLP for summary judgment dismissing the amended complaint and all cross claims against them.

ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOHN P. DANIEU OF COUNSEL), FOR DEFENDANT-APPELLANT KALEIDA HEALTH, DOING BUSINESS AS MILLARD FILLMORE HEALTH SYSTEM-THREE GATES CIRCLE HOSPITAL.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (RYAN P. CRAWFORD OF COUNSEL), FOR DEFENDANTS-APPELLANTS SADIR ALRAWI, M.D. AND BUFFALO EMERGENCY ASSOCIATES, LLP.

RICOTTA & VISCO, ATTORNEYS & COUNSELORS AT LAW, BUFFALO (K. JOHN BLAND OF COUNSEL), FOR DEFENDANT-APPELLANT DAVID M. JAMES, M.D.

DAMON MOREY LLP, BUFFALO (JAMES E. BALCARCZYK, II, OF COUNSEL), FOR DEFENDANTS-APPELLANTS MERCY AMBULATORY CARE CENTER AND CATHOLIC HEALTH SYSTEM, INC.

HAMSHER & VALENTINE, BUFFALO (RICHARD P. VALENTINE OF COUNSEL), FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.

It is hereby ORDERED that the order so appealed from is affirmed without costs.

Memorandum: Plaintiff commenced this medical malpractice and wrongful death action seeking damages for the conscious pain and suffering, and death of Steven R. Wilk (decedent) as a result of the alleged failure by defendants to diagnose and treat decedent's aortic dissection in a timely manner. The death certificate revealed that the immediate cause of death was a "cerebral infarct with herniation[, ]... due to or as a consequence of... shock with intestinal ischemia[, ]... due to or as a consequence of... aortic dissection." Defendants-appellants (defendants) moved for summary judgment dismissing the amended complaint and all cross claims against them and, although Supreme Court concluded that defendants met their initial burden on their respective motions, the court determined that plaintiff's submissions raised issues of fact. Thus, the court denied the motions. We affirm.

On February 13, 2004, decedent was transported by ambulance to the emergency room operated by defendant Kaleida Health, doing business as Millard Fillmore Health System-Three Gates Circle Hospital (Kaleida), and was treated by defendant David M. James, M.D. and Kaleida's staff. The ambulance record indicated that decedent's "chief complaint" was "severe back pain" that, according to the "subjective assessment" entry on that record, started at 9:30 a.m. and felt like someone "hit [him with a] baseball bat." However, the "comments" section of the ambulance record contains an entry stating that the pain started "2 days ago." The triage nurse at Kaleida, a hospital employee, documented a "2 day [history] of lower back pain, " but did not document decedent's complaint that the severe back pain started within 90 minutes of his arrival at the emergency room. Thus, decedent's report of the sudden onset of severe back pain was not carried forward from the ambulance record to the triage note in his medical chart at Kaleida. It is undisputed that the sudden onset of severe back pain is a telltale symptom of aortic dissection.

The nurse practitioner who initially assessed decedent upon his arrival at the emergency room testified at her deposition that she reviewed the triage note to obtain information about the history of decedent's onset of pain and that it did not indicate that the pain had started suddenly at 9:30 a.m. that morning. The nurse practitioner did not recall whether she reviewed the ambulance record when she saw decedent in the emergency room. The nurse practitioner also testified that decedent's symptoms supported a differential diagnosis of aortic dissection. She agreed that the appropriate diagnostic test to rule out an aortic dissection was a CT scan with contrast. Nonetheless, a CT scan was neither ordered nor performed, and decedent was discharged with a diagnosis of "thoracic spine strain." The nurse practitioner explained at her deposition that she abandoned the differential diagnosis of aortic dissection because, in her experience, patients who "have had a dissecting aneurism, do not have pain for two days prior to ending up in the emergency room." Notably, defendants do not dispute that decedent was suffering from an aortic dissection on February 13, 2004. Instead, they contend that they did not deviate from the applicable standards in their care and treatment of decedent. The record contains a consultation note from a cardiac surgeon on March 1, 2004 stating that decedent had an "old" aortic dissection that was in existence "at least to 2/15." Further, defendants do not dispute on this record that, with a timely diagnosis of aortic dissection and appropriate treatment, decedent would have had a substantial likelihood of avoiding catastrophic injury and premature death.

Two days after his initial visit, decedent returned to the emergency room at Kaleida and was again treated by James. Decedent complained of back pain that was at a level of severity of "10/10" and felt as though "a baseball bat hit [him]." Decedent was discharged by James 30 minutes later with a "diagnosis" of "sciatica." Forty-four minutes later, while waiting for his wife to pick him up from the emergency room, decedent experienced "excruciating sudden [right] flank and [left] abdominal pain[]" and returned to the emergency room. Ultimately, James ordered a CT scan without contrast. The CT scan did not confirm James's preliminary diagnosis of kidney stones, and the radiologist's report recommended that the test be repeated with contrast. Notwithstanding that recommendation, James did not order another CT scan. Although the CT scan performed without contrast did not reveal the presence of any kidney stones, James discharged decedent from the emergency room with the "impression" that decedent had "sciatica/[left] renal stones."

One day later, decedent was admitted to defendant Mercy Ambulatory Care Center, a member facility of defendant Catholic Health System, Inc. (collectively, Mercy/CHS). The triage information sheet incorrectly documented that decedent had seen and was catheterized by his urologist the day before. In fact, decedent had not seen his urologist the day before, but had been catheterized at his second emergency room visit at Kaleida in three days after presenting at both visits with severe back pain. Under the section entitled "past medical history, " the triage information sheet referenced urinary retention, a coronary artery bypass graft a "few years ago" and eczema, but contained no reference to the back pain that led to decedent's two prior emergency room visits. Decedent was treated by defendant Sadir Alrawi, M.D., an employee of defendant Buffalo Emergency Associates, LLP (BEA). Alrawi did not note a "chief complaint" in decedent's emergency room treatment record (chart). However, under the section of the chart entitled "[d]uration, " Alrawi noted that decedent was experiencing "severe pain in the supra pubic area." Decedent's two recent emergency room visits were not described in the chart. Alrawi catheterized decedent's bladder and discharged him with a "secondary diagnosis" of urinary retention. No "[p]rimary diagnosis" or "[d]ifferential diagnosis" was entered in decedent's chart by Alrawi or the staff at Mercy/CHS.

On February 18, 2004, decedent returned to the emergency room operated by Kaleida with complaints of lower back pain and the inability to feel or move his legs. Imaging studies established that decedent had extensive internal bleeding in the area of his lumbar-thoracic spine with "mild mass effect on the adjacent spinal cord." Ultimately, a CT scan with contrast performed on March 1, 2004 revealed an aortic dissection from the "proximal ascending aorta to ...


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