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Syvertsen v. Moskovits

Supreme Court, New York County

August 16, 2013

EILEEN F. SYVERTSEN, as Administratrix of the Estate of SUSAN SYVERTSEN, deceased, Plaintiffs,
TIBOR MOSKOVITS, M.D., DANIELA GIDEA-ADDEO, M.D., NYU LANGONE MEDICAL CENTER, NYU CANCER INSTITUTE/NYU CLINICAL CANCER CENTER and 'JOHN D0ES1-5" AND "JANE DOES 1-5" Names being fictitious but intended to be the individuals who administered various radiation and/or chemotherapy treatments to the deceased Defendants Index No. 109131/08

Unpublished Opinion


In this medical malpractice action and in this motion for summary judgment made by all the defendants, the overriding question is, What was the cause of Susan Syvertsen's death? She was 41 at the time and she died alone in her apartment on March 3, 2007. She had called 911 for help at about 2:30 a.m. on the 3rd. To their credit, EMS arrived about ten minutes later, but they could not gain entrance to her apartment because the door was locked and there was no response. It took them about 45 minutes before they were able to enter the apartment. There they found Ms. Syvertsen lying on the floor lifeless. Next to her was a kind of coffee ground vomit. Why did she die?

Toward the end of 2006, Ms. Syvertsen had a colonoscopy because of symptoms she was experiencing. That test indicated that there was a tumor in her rectal area. It was decided, in consultation with her doctor, that the best treatment would be non-surgical. Rather, she would undergo a concurrent course of radiation and chemotherapy. The actual diagnosis was that she had squamous cell carcinoma of the anus. It was a biopsy that confirmed this diagnosis.

On or about February 16, 2007, Ms. Syvertsen first came under the care of Dr. Tibor Moskovits, the first named defendant here. He is a medical oncologist and would be in charge of delivering the chemotherapy. She would receive radiation therapy from Dr. Daniela Gidea-Addeo, the second named defendant, who is a radiation oncologist. Both doctors were associated with New York University and their Clinical Cancer Center ("CCC").

On March 2, 2007, the decedent went to NYU to have her fifth radiation session under Dr. Gidea-Addeo's supervision and then the plan was for her to see Dr. Moskovits who would remove a therapeutic pump used to give Ms. Syvertsen a continual infusion of the chemotherapy. That was the plan. At approximately 8:30 a.m. while at Tisch, part of NYC Langone Medical Center, in their radiation oncology suite and after undergoing the treatment, the decedent complained of weakness, constipation and bloating. She made these complaints to the registered nurse there, Adelina Cabrera. She asked to rest. At that time, it does not appear that she made complaints of abdominal pain, none were recorded. It was decided that she would be taken to the Emergency Department at Langone, which was close to the radiation suite. She was then taken by wheelchair to the Emergency Department where she was registered. However, it appears that Dr. Moskovits decided that it would be better for her to come to the CCC where she could receive specialized treatment. The Center was a few blocks away so a car service was called to take Ms. Syvertsen to Dr. Moskovits' office. There, she was seen by a nurse Sarah Mendez some time between 10:00 a.m. and 11:00 a.m. Mendez testified that she performed an abdominal exam of the patient and found no abnormalities. Ms. Syvertsen's complaints at that time were nausea, fatigue and constipation. Although no report of pain in the abdomen were noted, she did report discomfort in the rectal area.

Blood was taken for a CBC. This showed a normal blood count with a slightly low potassium level. An elevated white blood count was also noted. She was then being treated by nurse practitioner, Kathy Leonard. Dr. Moskovits and NP Leonard thought that Ms. Syvertsen's symptoms were consistent with dehydration, which they believed were common under these circumstances. Therefore she was given IV hydration.

Approximately from 12:40 p.m. to 3:30 p.m., the decedent slept, while being observed by medical personnel at the Center. Upon awakening, she reported feeling better and was discharged at approximately 4:00 p.m. Before the discharge, she was interviewed by a social worker, Deborah Keoppel, who wrote in her chart that Ms. Syvertsen complained of "severe rectal and abdominal pain ". At the discharge, she was given a prescription for a laxative Lactulose. She went to her home in Forest Hills by way of car service that had been called for her. As stated earlier in this decision, Ms. Syvertsen died the next day, March 3, 2007 in the early morning hours.

The following day March 4, 2007, an autopsy was performed in the office of the Medical Examiner. The Certificate of Death gave as the cause of death "Complications of perforation of rectal wall following radiation and chemotherapy for treatment of squamous cell carcinoma of probable anal origin". The Report of Autopsy said the same thing and specified under Final Diagnosis IA. Status Post Radiation and Chemotherapy (Anamnestic) and B. Necrosis of Tumor and Perforation of Bowel Wall. Also a lesion was measured to be 5cm.x 3.5cm. Undoubtedly that was the malignant mass that had been diagnosed earlier. Finally, under Final Diagnosis II there was a finding of "erosions of the gastroesophageal junction". The cause of death in the report was "complications of perforation of rectal wall following radiation and chemotherapy for treatment of squamous cell carcinoma of probable anal origin". So why did she die?

On the basis of these somewhat sparse facts, the defendants are moving for dispositive judgment in their favor. They support their motion with signed statements from Dr. Michael Grossbard and Dr. Jonathan Haas.

Dr. Grossbard is board certified in Internal Medicine and Medical Oncology, the speciality he shares with Dr. Moskovits. Dr. Grossbard states that he is Chief of the Division of Hematology/Oncology at St. Luke's Roosevelt and Beth Israel Hospitals. He is also a Professor of Clinical Medicine. Dr. Haas indicates that he is board certified in Radiation Oncology, a speciality he shares with Dr. Gidea-Addeo. He is Chief of Radiation Oncology at Winthrop University Hospital in Mineola, Long Island.

Dr. Grossbard begins his statement by saying that he has reviewed the plaintiffs Bill of Particulars which recite the allegations made by the plaintiff in this action. He immediately gets right to his bottom line conclusion which is that in his opinion to a reasonable degree of medical certainty the medical oncology care rendered to and for Ms. Syvertsen was in all respects in accordance with accepted standards of care and that there were no departures from accepted standards of care by Dr. Moskovits or any of the NYU staff. He says further that the transfer of Ms. Syvertsen from the radiation oncology suite at Tisch to the CCC was also fully in accordance with accepted standards of care. Finally and significantly, he opines that no departure claimed with regard to medical oncology here was a proximate cause of Ms. Syvertsen's death. Although he never states whether he has an opinion of what the cause of death was and if he does, what it is.

Dr. Grossbard, besides reading the Bill of Particulars also reviewed all relevant medical and hospital records and the ME's Autopsy Report. Further, he has reviewed all of the relevant deposition testimony in this case.

This doctor then details the events of March 2, 2007, which he points out was Ms. Syvertsen' s fifth day of her planned treatment at NYU. He first discusses the decedent's complaints while at the radiology suite, her being taken to the Emergency Department and then her transfer, by car service to the CCC. He explains that her chemotherapy infusion cassette was to be removed that day as her first round of chemotherapy had been completed. Dr. Grossbard expresses his opinion that the decedent was taken to an appropriate treatment area and came under the care of an appropriate person, oncology nurse Sarah Mendez. He describes the complaints which Ms. Syvertsen made as being routinely encountered by patients suffering from similar illnesses. He goes on to explain that blood was taken and that the ...

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