DEMIAN FAULKNER, As Administrator of the Goods, Chattels and Credits which were of AMELIA FAULICNER SIEBERS, Deceased, Plaintiff,
JOSEPH MARTZ, M.D., and BETH ISRAEL MEDICAL CENTER, Defendants. Index No. 402048/09
DECISION AND ORDER
JOAN B. LOBIS, J.S.C.
Joseph Martz, M.D., and Beth Israel Medical Center move for summary judgment pursuant to Rule 3212 of the Civil Practice Law and Rules. Plaintiff Demian Faulkner, as the Administrator of the Goods, Chattels and Credits of Amelia Faulkner Seibers, deceased, opposes the motion. For the following reasons, the motion is denied.
This medical malpractice action involves the treatment rendered to Amelia Faulkner Siebers by defendants in December 2008. Ms. Faulkner Siebers was diagnosed with rectal cancer in November 2005. Her medical history indicated that she was also HIV positive and had Hepatitis C. On May 2, 2006, the decedent underwent a low anterior resection with diverting loop ileostomy at Beth Israel Medical Center (BIMC). The surgery was performed by defendant Joseph Martz, M.D., a colorectal surgeon. The ileostomy remained in place for two years as Ms. Faulkner Siebers continued to treat at BIMC. During that time, she experienced a remission of her rectal cancer.
On September 15, 2008, Ms. Faulkner Siebers presented to Dr. Martz for consultation to discuss the closure and reversal of the ileostomy. During that visit, Dr. Martz noted that she had significant inflammation in the cecum. In the nine months prior to that visit, the patient had undergone a series of radiological studies at BIMC, which were significant for findings of a persistent sinus tract, inflammatory process in her pelvis and abdomen, colonic diverticula, and a collapsed colon.
On December 9, 2008, the patient underwent the ileostomy closure performed by Dr. Martz. The operative dictation indicates that Dr. Martz created a side-to-side anastomosis and excised the ileostomy. The procedure was completed without any noted complications.
Following the procedure, the patient complained of pain and had a distended abdomen. The pain was controlled with medication. The patient's blood count was normal, and she had no fever. On December 13, 2008, the patient was noted to have passed gas, and the defendants had intended to discharge the patient the following day. On December 14, 2008, however, the patient did not pass gas, and Dr. Martz decided to continue her admission to the hospital and keep her for further observation.
On December 15, 2008, the patient was noted to have developed a "mild" abdominal distention, which, according to Dr. Martz, was due to her morphine use. A CT scan of her abdomen showed the presence of ascites, which are accumulations of serous fluid in the peritoneal cavity. Small amounts of air and gas were also found in the patient's abdominal cavity. On December 16, the patient's abdominal distention progressed from mild to severe. She also experienced tenderness and tachycardia. Dr. Martz performed a re-exploration procedure that day, and the patient was noted to have a necrotic colon with cecal perforation and fecal peritonitis. The operative notes indicate that the patient experienced colonic ischemia involving the cecum, ascending colon, transverse colon, and descending colon. Part of the cecal wall had thinned, and the cecum was perforated. The area was also found to be contaminated. Dr. Martz performed a subtotal colectomy and resected the colon.
After the surgery on December 16, 2008, the patient remained sedated and intubated. Her condition deteriorated, and on December 26, the patient died. The autopsy report lists the cause of death as "septic complications of peritonitis due to cecal perforation complicating ischemia of large intestine following reversal of ileostomy performed for the treatment of rectal cancer."
Plaintiff commenced this action on June 17, 2009, alleging that the decedent's injuries and death were proximately caused by an anastomotic leak secondary to a persistent sinus tract leak, inflammation, and the improper performance of the ileostomy reversal. Plaintiff also has a cause of action for lack of informed consent.
Dr. Martz and BIMC seek summary judgment on all causes of action. They contend that the patient's anastomosis did not leak and that the decedent suffered from a post-operative infection unrelated to Dr. Martz's procedure on December 9, 2008. They also argue that the patient gave her informed consent for the surgery.
The defendants submit the expert affirmation of Randolph Steinhagen, M.D., who indicates that he is a physician licensed to practice in New York and board certified in Colon and Rectal Surgery. After reviewing the relevant documents in the case, he opines to a reasonable degree of medical certainty that the treatment rendered by defendants was within the standard of care. In outlining the treatment, the expert opines that, although the patient had a persistent sinus tract requiring further treatment, it did not present an increased risk with regard to the ileostomy reversal. He states that it was proper for Dr. Martz to have performed the procedure by creating a side-to-side anastomosis prior to excising the anastomosis and returning it to the abdominal cavity. He states that the patient's complaints of post-operative pain with a distended abdomen were not unusual given her recent surgery. He further notes that, although the CT scan of December 15, 2008, showed the presence of ascites, fluid and gas in the abdomen, there was no definitive abscess. He adds that there was also no evidence of peritonitis or any emergent issue requiring surgery at that time.
Dr. Steinhagen opines that the re-exploration on December 16, 2008, was necessary to address the patient's increased abdominal distention. The re-exploration revealed the presence of colonic ischemia and gangrene, which resulted in the resection of the patient's colon. The expert explains that colonic ischemia results from inadequate blood supply and can cause sepsis, bowel infarction, or death. He states that the patient exhibited no change in her condition that would have warranted any treatment prior to December 16, 2008.
During the re-exploration, the expert notes that the ileostomy closure site was found to have been intact and without significant inflammation. Dr. Steinhagen provides a representative diagram and accompanying legend to visualize the relevant anatomical area. He concludes that there exists no causal relationship between the ischemic necrotic bowel from which the patient suffered and the ileostomy closure at issue. He states that the closure site is not located within the area of ischemia and gangrene. The expert adds that the pathology report disproves plaintiffs theory that there had been a small intestinal anastomotic leak, since the report indicated that "there were no gross ...