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Colarusso v. Lo

Supreme Court, New York County

November 25, 2013

Harriet Colarusso, Plaintiff,
Andrew Y. Lo, M.D., Defendant

Unpublished Opinion

Joan B. Lobis, J.

This medical malpractice action arises out of a hemorrhoid banding procedure performed on Harriet Colarusso by Andrew Y. Lo, M.D. Ms. Colarusso sues Dr. Lo, alleging medical negligence and lack of informed consent. Ms. Colarusso claims that, as a result of the medical negligence and lack of informed consent, she suffered from permanent incontinence and a recurrent anal fissure. Dr. Lo moves for summary judgment pursuant to Section 3212 of the Civil Practice Law and Rules. Alternatively, Dr. Lo, pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), moves for an order precluding the Plaintiff's expert testimony or granting a hearing on the grounds that the opinions to be offered are not generally accepted by the relevant scientific and medical communities. For the following reasons, the motion is denied.

Dr. Lo first treated Ms. Colarusso on October 2, 2007. She had been suffering from bleeding hemorrhoids and frequent bowel movements. Her medical history showed, among other conditions, chronic myelogenous leukemia ("CML") and six years of recurring clostridium difficile infection (" C. diff "), both of which had required numerous hospitalizations. Dr. Lo performed a digital examination of the rectum, followed by an anoscopy. Dr. Lo alleges that he informed the patient that if he saw hemorrhoids he would repair them by performing a banding procedure. He also claims to have informed Ms. Colarusso of any risks involved in the procedure.

During the anoscopy, Dr. Lo identified two internal hemorrhoids above the dentate line, which is approximately 2 centimeters above the opening of the anal canal. Dr. Lo applied local anesthetic and banded these by applying a band that cuts off circulation to the hemorrhoids, causing them to slough off. The patient was then sent home.

Four days later, Ms. Colarusso went to the Beth Israel Medical Center ("Beth Israel") emergency room, complaining of rectal pain. A surgical resident informed Dr. Lo of Ms. Colarusso's complaints. The surgical resident then examined her. Upon examination, the surgical resident found no erythema or induration. There was no gross blood, but Ms. Colarusso did experience pain during the digital examination. Ms. Colarusso was recommended analgesics, a Sitz bath, and a follow up visit with Dr. Lo.

The next day Ms. Colarusso returned to Beth Israel's emergency room complaining of continued rectal pain. She was recommended further pain medications and stool softeners but refused to go home and was admitted. On October 8, 2007, Dr. Lo came to Beth Israel to examine Ms. Colarusso. She refused a digital rectal examination because of the pain. The following day, Dr. Lo performed the examination while Ms. Colarusso was under anesthesia. Dr. Lo used a retractor and observed a fissure in the posterior midline of the anal canal. The fissure was located approximately 2-3 centimeters away from the banding. Dr. Lo repaired the fissure, and, on October 12, 2007, Ms. Colarusso was discharged.

On November 20, 2007, Ms. Colarusso saw Dr. Lo for her follow up visit. Dr. Lo claims that Ms. Colarusso did not complain of pain and that the fissurectomy had healed well. There was no rectal bleeding or tenderness. He documented that she had good sphincter tone but was not excessively tight.

Ms. Colarusso also saw Joseph Martz, M.D., a colon and rectal surgeon, on December 28, 2007. She provided her medical history and complained of intermittent, bright red blood from her rectum and perianal irritation. Dr. Martz examined her and noted a posterior midline anal fissure. Ms. Colarusso had two follow up visits with Dr. Martz. At Ms. Colarusso's second follow up appointment, on March 14, 2008, Dr. Martz noted her decreased stool frequency and improving discomfort.

On May 13, 2008, Ms. Colarusso was seen by Michael Goggins, M.D., a gastroenterologist at John Hopkins Medical Center. Dr. Goggins evaluated Ms. Colarusso's C. diff colitis. She reported that the hemorrhoid banding caused her to develop poor anal function with leakage, soreness, and recurrent diarrhea. She was prescribed several medications and Dr. Goggins noted that it would be difficult to find other alternatives to assist her with her bowel issues.

Dr. Martz saw Ms. Colarusso again on June 23, 2008. She informed him that her diarrhea had resolved, and she could move her bowels without pain or bleeding, but Dr. Martz noted she still had a fissure at the top of the anus. Over a year later, Ms. Colarusso was seen by Lawrence Brandt, M.D., for complaints of diarrhea and C. diff. Dr. Brandt also noted the midline anal fissure. Between June 23, 2009, and February 6, 2010, Ms. Colarusso was admitted to Beth Israel eight times for complaintsrelated to her C. diff. On March 26, 2010, Ms. Colarusso was again seen by Dr. Martz, who noted that her fissure had resolved. In March 2010, Ms. Colarusso began this medical malpractice action against Dr. Lo.

On April 7, 2010, Ms. Colarusso was treated by oncologist Larissa Temple, M.D., at Memorial Sloan Kettering Cancer Center. Ms. Colarusso reported that she leaked liquid stool for about one hour after every bowel movement. Dr. Temple recommended an anal manometry and an ultrasound. On May 25, 2010, Dr. Jeffrey Aronoff performed an anal manometry, balloon expulsion, and neurological studies. Ms. Colarusso's studies showed that she had "extremely high resting pressure and resting pressure volume, normal sphincter length and percentage of cross sectional asymmetry." The anal manometry did not indicate a sphincter defect. Because of Ms. Colarusso's anal fissure, a balloon expulsion test was not performed.

On January 5, 2011, Ms. Colarusso had an appointment with Victor A. Gallo, M.D., a colon and rectal surgeon, to address her rectal bleeding. Dr. Gallo noted that Ms. Colarusso had rectal bleeding and symptomatic internal hemorrhoids, which he suggested treating with sclerotherapy treatments to control the rectal bleeding. Ms. Colarusso saw Dr. Gallo multiple times between January 5, 2011, and May 3, 2013, due to her rectal bleeding.

On June 8, 2011, Ms. Colarusso had a second appointment with Dr. Temple. Dr. Temple, following an examination, noted that there was an abnormality in the internal sphincter and that the anoscopy showed three complexes of grade two to three hemorrhoids but no evidence of a fissure. Dr. Temple believed that Ms. Colarusso had a defect in her internal sphincter from Dr. Lo's procedure. In July, 2012, Ms. ...

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