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Zeak v. United States

United States District Court, S.D. New York

October 20, 2014

ANN ZEAK, as Executor of the Estate of Steven Sullivan, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.



On November 10, 2009, Steven Sullivan died during a surgical procedure at the James J. Peters VA Medical Center (the "Bronx VA"), a medical facility located in the Bronx, New York, and operated by the United States Department of Veteran Affairs (the "VA"). Plaintiff, daughter of the deceased, initiated this action on June 22, 2011, alleging medical malpractice, negligent hiring and retention, and failure to obtain informed consent. Plaintiff brings these claims under the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346, 2671-2680, against Defendant United States of America (the "Government"). The Government now moves for summary judgment concerning Plaintiff's claims of medical malpractice and failure to obtain informed consent. Because Plaintiff has failed to identify a genuine issue of material fact concerning these claims, the Government's motion is granted.


A. The November 10, 2009 Surgical Procedure

Beginning in 1999, medical tests revealed that Steven Sullivan had developed a chest disease that affected his right lung and caused him to suffer from fevers, increased phlegm production, and an elevated white blood cell count. (Def. 56.1 ¶ 3). On February 24, 2009, a computerized tomography ("CT") scan taken at the Bronx VA revealed serious abnormalities with Sullivan's right lung. ( Id. at ¶ 5). Doctors at the Bronx VA recommended surgery, but, at that time, Sullivan declined any surgical intervention. (Def. 56.1 ¶ 6; Camunas Tr. 26).

On October 28, 2009, Sullivan returned to the Bronx VA, where further tests showed that the condition of his right lung had worsened significantly. (Def. 56.1 ¶ 7; Cargo Decl., Ex. F at 1 ("The infection in the right lung had progressed between March and November. In that time, the infection had completely taken over the right lung. The right lung was no longer functional.")). One of the doctors who examined Sullivan during this hospital visit was Dr. Jorge Camunas, a thoracic surgeon with nearly 30 years of experience. (Def. 56.1 ¶ 9; Camunas Tr. 27-31). Having examined Sullivan during prior visits, Dr. Camunas was already familiar with Sullivan's history and condition. ( See Camunas Tr. 24-27). Dr. Camunas recommended a pneumonectomy, a surgical procedure that would entail the complete removal of Sullivan's right lung. ( Id. at 31 ("[T]he lung was so destroyed that to be able to control that infection in the long term basis, the lung had to be removed.")). Although Sullivan had declined surgery in February, after speaking with Dr. Camunas in October about the progression of his disease, he agreed to the pneumonectomy. ( Id. ("I saw him at his bedside again and showed him the x-rays.... showing how the process involving his right lung had progressed from the previous time and third time. Eventually it was the whole right lung. It was then that he said he wanted to have surgery."); Zeak Tr. 70-72).

On November 9, 2009, Sullivan signed a consent form for the surgery. (Def. 56.1 ¶¶ 8, 11). The form was also signed by a resident at the Bronx VA and another witness, the latter of whom attested that he observed the patient and the practitioner sign the form. (Cargo Decl., Ex. E at 5-6). The form explained that, while "[u]nder general anesthesia, patient will have right lung removed...." ( Id. at 2). The expected benefits of the surgical procedure listed on the consent form were "removing the infected, poorly functioning lung and to potentially improve ease of breathing and oxygenation." ( Id. ). The known risks listed on the consent form were "infection, blood loss, injury to surrounding organs and structures, [and] potential loss of life." ( Id. ). The consent form explained that the only alternative to the procedure was "no treatment[, ] which could cause further deterioration of ability to breathe, and possible inability to oxygenate generally." ( Id. ).

On November 10, 2009, Dr. Camunas began performing the pneumonectomy with the assistance of an additional thoracic surgeon, Dr. Chun Loh, and a surgical resident, Dr. Catherine Madorin. (Camunas Tr. 47-49; Loh Tr. 29-31). Part of the procedure required the surgeons to access Sullivan's pulmonary veins - blood vessels that connect the heart to the lungs. (Def. 56.1 ¶ 14; Cargo Decl., Ex. F at 1; Camunas Tr. 46). Sullivan's doctors, however, faced difficulty in seeing the pulmonary veins because Sullivan's right lung - which was stiff due to the infection - did not collapse following dissection. (Def. 56.1 ¶ 14; Cargo Decl., Ex. F at 1; Camunas Tr. 45-46). Although his visibility of the veins was poor, Dr. Camunas was able to feel the inferior pulmonary vein by using his fingers. (Def. 56.1 ¶ 14; Cargo Decl., Ex. F at 1; Camunas Tr. 46-47). While placing his finger around the inferior pulmonary vein, Dr. Camunas caused the vein to tear, which resulted in severe bleeding. (Def. 56.1 ¶ 14; Cargo Decl., Ex. F at 1; Camunas Tr. 47, 51, 59). The doctors attempted to control the bleeding, but were unsuccessful. (Def. 56.1 ¶ 15). Doctors administered fluids and performed CPR, but were unable to save Sullivan's life. (Camunas Tr. 55-57; Cargo Decl., Ex. F at 1). Sullivan died approximately 30 to 40 minutes later. (Camunas Tr. 55; Cargo Decl., Ex. F at 1).

Following the surgery, Dr. Camunas and Dr. Madorin informed Plaintiff, who had come to the hospital after the surgery commenced, that Sullivan had died. (Camunas Tr. 40; Zeak Tr. 78). Dr. Camunas explained to Plaintiff that her father died "because of a vessel, pulmonary vein that tore as I was trying to get around that vein...." (Camunas Tr. 40). Dr. Camunas said he was "very sorry." ( Id. at 41). Plaintiff responded to this news by telling Dr. Camunas that her father had not indicated that the surgery was "so risky." ( Id. at 39). She asked Dr. Camunas for more details about her father's medical condition and about the surgical procedure. ( Id. at 41-42). Several hours later, Dr. Camunas provided Plaintiff with a letter setting forth this information. ( See Cargo Decl., Ex. F). Dr. Camunas also provided Plaintiff with information about how to submit a claim with the VA for survivor benefits. ( Id. at 2; Zeak Tr. 85).

B. The Instant Litigation

Plaintiff initiated this action on June 22, 2011, alleging medical malpractice, negligent hiring and retention, and failure to obtain informed consent. (Complaint ("Compl.") ¶ 1). Plaintiffs served various entities and individuals, including the Government, in July 2011 (Dkt. #2), and the Government filed an Answer on September 6, 2011 (Dkt. #3).

Initially, Plaintiff included as Defendants the VA, the Bronx VA, Dr. Camunas, Dr. Madorin, and Dr. Loh (collectively, the "Other Defendants"). (Compl. ¶ 1). On September 16, 2011, the Honorable Deborah A. Batts, the District Judge to whom this case was then assigned, issued an Order to Show Cause why Plaintiff's action against the Other Defendants should not be dismissed for failure to prosecute. (Dkt. #4). On November 1, 2011, after Plaintiff failed to respond to the Order, the Honorable J. Paul Oetken, the District Judge to whom this case had been reassigned, dismissed Plaintiff's claims against the Other Defendants. (Dkt. #6).

On November 10, 2011, Plaintiff moved to vacate the Order dismissing the Other Defendants and requested an extension within which to file a motion for default against the Other Defendants. (Dkt. #7). Judge Oetken granted this application on the same day. ( Id. ). On November 18, 2011, Plaintiff filed an Order to Show Cause why a default judgment should not be entered against the Other Defendants. (Dkt. #9). On November 28, 2011, the Government filed a response (Dkt. #10), in which it argued that, under the FTCA, the sole and exclusive remedy for certain specified torts "arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment" is a suit against the United States. 28 U.S.C. § 2679. On February 23, 2012, Judge Oetken dismissed Plaintiff's claims against the Other Defendants. (Dkt. #17). On June 24, 2013, the action was reassigned to this Court. (Dkt. #23).

C. The Expert Witnesses

The parties engaged in fact and expert discovery from November 16, 2012, to December 13, 2013, culminating in the deposition of Plaintiff's expert, Dr. Michael Zervos. ( See Dkt. #25, 29). Because of the criticality of the expert testimony to this motion, it is discussed in detail in the remainder of this section.

1. Plaintiff's Expert Report

Plaintiff's expert, Dr. Zervos, is a cardiothoracic surgeon and assistant professor of cardiothoracic surgery at New York University ("NYU") School of Medicine. (Def. 56.1 ¶ 18). In his expert report submitted in connection with this action, Dr. Zervos offered a number of opinions after having reviewed Sullivan's medical chart and the transcript of Dr. Camunas's deposition testimony. (Cargo Decl., Ex. H at 1). Dr. Zervos's first opinion was that the operative note (or "opnote") - a note prepared by the surgeons following the procedure - was deficient. ( Id. ). Dr. Zervos opined that the "opnote [wa]s... confusing and has several errors." ( Id. ). Dr. Zervos added that the operative note "was also dictated three days after the surgery by the resident." ( Id. ). In Dr. Zervos's estimation, "for a case like this, the operating surgeon should have dictated the note himself and made special notice to certain details of the procedure and the problems related to the surgery as a more experienced person than the resident." ( Id. ).

The second opinion contained in Dr. Zervos's report concerns Dr. Camunas's decision to continue the surgical procedure despite the lack of visibility of the pulmonary veins. (Cargo Decl., Ex. H at 1). In this regard, Dr. Zervos stated:

If I had a difficult time visualizing pulmonary veins, I would not attempt isolation without being able to see. There should have been a backup plan or a bailout type procedure.... If I got into the pericardium and could not get around the blood supply I would have tried an alternative procedure such as debriding as much infection and necrotic lung as possible and covering the rest with muscle, or used an [eloesser] flap ...

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