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Lettman v. United States

United States District Court, Second Circuit

August 29, 2013

MARIA LETTMAN, Plaintiff,
v.
UNITED STATES, et al., Defendants.

ORDER & OPINION

LORNA G. SCHOFIELD, District Judge.

Plaintiff Maria Lettman asserted claims against the United States, the United States Department of Veteran Affairs, Dr. Teresa Aquino, Drs. John and Jane Doe, and a John Roe police officer defendant. In April 2013, the claims against Dr. Aquino were settled. On May 31, 2013, Defendants United States Government and United States Department of Veteran Affairs moved for partial summary judgment on Plaintiff's medical malpractice claims arising from events that took place on April 7, 2010, leaving at issue the events of September 8, 2010. In Plaintiff's Opposition and in a June 18, 2013, communication to defense counsel, Plaintiff agreed that all of her claims against the Department of Veterans Affairs and the remaining individual defendants should be dismissed. Accordingly, the Court dismisses those claims and defendants, and denies Defendants' motion as to those claims and defendants as moot.

Plaintiff continues to assert her common law tort claims against the United States under the Federal Tort Claims Act for the conduct of Dr. Silaja Yitta, who was a resident physician employed at the Veterans Administration hospital. For the reasons stated below, the United States' motion for partial summary judgment as to the malpractice claims arising from the events of April 7, 2010, is denied.

I. Facts

A. Timeline of Events

On March 31, 2010, Plaintiff had a pancreatic mass removed and later developed an infection. On April 7, 2010, she underwent a radiology procedure to facilitate access for intravenous antibiotic therapy in which a peripherally inserted central catheter ("PICC line") was inserted into Plaintiff's left brachial vein, with the help of a guidewire. The procedure was performed by either Dr. Teresa Aquino, the attending physician and an independent contractor with the Veterans Affairs Hospital, or Dr. Yitta, who was then a resident physician acting under the direction of Dr. Aquino. Neither Dr. Yitta nor Dr. Aquino can recall the events or their respective roles, nor do records indicate who performed the procedures. Plaintiff testified that Dr. Yitta performed the procedure. Dr. Yitta, a third-year resident with two weeks of interventional radiology training at the time of the procedure, testified that it was her custom and practice to follow the directions of the attending physician during any procedure, and not to exercise any independent medical judgment. Dr. Aquino testified that it was her custom and practice to supervise a resident at all times the resident performs a procedure such as the insertion of a PICC line, and that she would have supervised Dr. Yitta's actions.

On April 14, 2010, the PICC line was removed, and Plaintiff was discharged from the hospital. On September 7, 2010, when Plaintiff returned to the hospital complaining of chest pain, a foreign body - a nine inch piece of a guidewire used in PICC line procedures - was discovered inside Plaintiff's right pulmonary artery. The events of September 8, 2010 are not at issue on this motion. On November 19, 2010, Plaintiff had the PICC line removed at Stony Brook Hospital.

B. Expert Testimony

On March 13, 2013, Plaintiff's expert, Dr. Thomas Sos submitted an expert medical report that stated:

Upon removal of the guide wire additional imaging studies should be taken to confirm and document the final placement of the tip of the PICC line and that the entire guide wire has been successfully removed. The removed guide wire should also be examined to confirm that it is not damaged and that the entire wire was successfully removed.
Based on my review of the above medical records, it is my conclusion and opinion that Drs. Theresa Aquino, MD (Attending Radiologist) and Dr. Yitta (Resident Radiologist) failed to follow the standards of care in the insertion, placement and follow up of the PICC in Maria Lettman and to timely diagnose and treat the resulting broken and retained foreign body wire fragment which migrated through her heart into her pulmonary artery, and that such failure to diagnose and treat the broken and retained wire fragment was a failure to use such care as a reasonably prudent person and careful healthcare provider would have used under similar circumstances.

At his deposition on April 4, 2013, Dr. Sos testified that the combination of the wire breaking and not being detected during and immediately after the procedure was a departure from the standard of care. He also opined that leaving a piece of the guidewire in the patient was not necessarily the only departure from the standard of care, but that he could not identify further departures without depositions and learning more about what had happened during the procedure.

In support of Plaintiff's opposition to summary judgment, Plaintiff submitted a June 7, 2013, declaration of Dr. Sos opining that Dr. Yitta had deviated significantly from the standard of care in the following ways:

Dr. Yitta should have known based on her education, training and experience as to what the standard of care and procedures were relative to the insertion of a Peripherally Inserted Central Catheter. She should know that radiographs should be taken upon completion to confirm the ...

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