Winsome Johnson, as Administrator of the Estate of TYESHA JOHNSON, and her UNBORN CHILD, and WINSOME JOHNSON, individually, Plaintiffs,
Lorraine Edwards, R.N., ET AL., Defendants.
Plaintiff was represented by Anthony T. Dipietro, Esq. of Anthony T. Dipietro, P.C., Defendant
Enzo Clinical Labs was represented by Heather Laschewer, Esq. of Kaufman Borgeest & Ryan, LLP., and defendants Gary Markoff, MD and Lexington OB/GYN PC were represented by Lawrence Rosenblatt, Esq., of Aaronson, Rappaport, Feinstein & Deutschm.
ANN T. PFAU, J.
The following papers numbered 1 to 11 read on motion sequence 06:
Notice of Motion and
Affidavits (Affirmations) & Exhibits Annexed 1- 3
Opposing Affidavits (Affirmations) and Exhibits Annexed 4 -5
Reply Affidavits (Affirmations) and Exhibits Annexed 6 - 7
Sur-Reply Affidavits (Affirmations) and Exhibits Annexed 8 - 11
Plaintiff moved to strike the answer of defendant Enzo Clinical Laboratory s/h/a Enzo Clinical Labs, Inc. (Enzo Laboratory) pursuant to CPLR 3126 for failure to produce discovery, and for summary judgment as to liability in the event the answer is struck. The motion is denied as follows.
This medical malpractice and wrongful death lawsuit arises from the treatment of plaintiffs' decedent, Tyesha Johnson, who died on June 4, 2009, along with her unborn child. Ms. Johnson was pregnant at the time of her death and suffered from a condition known as hyperemesis gravidarum, a complication of pregnancy. At her physician's request, a blood sample was taken from Ms. Johnson. The sample was sent to Enzo Laboratory for testing. In part, plaintiffs allege that Enzo Laboratory failed to timely provide Ms. Johnson's treating physicians with the results of the blood serum test that would have indicated that she had a dangerously low level of potassium in her blood (a condition referred to as hypokalemia), and that this failure was a factor in causing her premature death.
Enzo Laboratory produced a lab technician named Girishk Patel (Patel) for deposition. Patel described the analyzation process used by Enzo Laboratory (Transcript of Patel EBT, Sur-Reply Aff. of Heather Laschewer, Esq., Ex. E). He testified that serum samples were placed in a rack, which is then placed inside a machine that continuously analyzes the samples that are loaded into it. The machine, which he also referred to as an instrument, is known as the Olympus 5400. The samples are in tubes labeled with a bar code identifying the patient and the test desired. The machine can read the bar code and perform different tests for different samples. After the machine analyzes a sample, it prints out a report displaying the results. It also transmits the report to a "host computer", where it is printed out for delivery to the doctors. Patel testified that a copy of the report printed out at his workstation was kept on file (hereinafter referred to as the workstation report). When the machine detects an abnormal reading, such as a low potassium level, the reading is indicated on the printout with an asterisk. The machine sends the results to a computer work station nearby, where the operator can review the result and either release the data to the "host" computer, or repeat the test to verify the result. The test would be repeated, and the data automatically released to the "host" computer.
An abnormal reading that is above or below certain guidelines is considered "critical", and Enzo Laboratory policies mandate that the ordering physician be contacted as soon as possible (Laschewer Sur-Reply Aff., Ex. F). A potassium level below 2.5 meq/l is critical (id., and see Patel EBT, 103 - 105). If the physician orders the test on a "STAT" basis, Enzo Laboratory completes the test within four hours of receipt (Aff. of Jose Reyes, annexed to Laschewer Sur-Reply Aff. at Ex. G, ¶ 5). If the test is not ordered on a "STAT" basis, the test is completed within twenty-four hours of receipt (id., at ¶ 6). If the test returns a critical value, it is tested again, and will be reported to the physician if the second test results in data within a 5% range of ...