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Severino v. Weller

Supreme Court of New York, First Department

February 21, 2017

Marino Severino, etc., et al., Plaintiffs-Respondents,
Mark Weller, M.D., et al., Defendants-Appellants. James Lee, M.D., et al., Defendants.

         Defendants appeal from the orders of Supreme Court, New York County (Joan B. Lobis, J.), entered September 9, 2015, which, insofar as appealed from, denied defendants Mark Weller, M.D.'s and the New York and Presbyterian Hospital's motions for summary judgment dismissing the medical malpractice cause of action as against them.

          Marulli, Lindenbaum & Tomaszewski, LLP, New York (Gerard J. Marulli of counsel), for Mark Weller, M.D., appellant.

          McAloon & Friedman, P.C., New York (Gina Bernardi DiFolco of counsel), for the New York and Presbyterian Hospital, appellant.

          The Fitzgerald Law Firm, P.C., Yonkers (Ann B. Chase, John M. Daly and Mitchell Gittin of counsel), for respondents.

          Dianne T. Renwick, J.P. Richard T. Andrias David B. Saxe, Judith J. Gische Troy K. Webber, JJ.

          RENWICK, J.P.

         Summary judgment pursuant to CPLR 3212 permits a defendant to dispose of a case promptly where claims lack merit. It is not intended to deprive a plaintiff of the right to adjudicate claims where factual issues exist. In this case, we adhere to the rule that summary judgment is not authorized in a medical malpractice action where the parties adduce conflicting opinions of medical experts (see Fernandez v Moskowitz (85 A.D.3d 566');">85 A.D.3d 566 [1st Dept 2011]). Contrary to the dissent's conclusion, the opinions of plaintiffs' experts were based upon facts in evidence and were not conclusory or otherwise insufficient.

         This medical malpractice case relates to the care and treatment of plaintiff Marino Severino (Severino), aged 61, who underwent gallbladder surgery at defendant hospital on May 17, 2008. Defendant Dr. Weller was the anesthesiologist for the procedure and postoperatively. In the hours following the surgery, Severino suffered cardiopulmonary arrest, resulting in severe anoxic brain injury, leaving him permanently ventilated in a near-vegetative or vegetative state. Plaintiffs' malpractice claims, which relate to the postoperative management of Severino's care, allege failure to properly monitor with continuous pulse oximetry, failure to recognize that he was not responding appropriately to opiate pain medication, and failure to timely call a code and commence resuscitation after his witnessed arrest.

         We disagree with plaintiffs to the extent they argue that defendants did not meet their initial burden of coming forward with evidence showing the absence of any material issue of fact (see Sisko v New York Hosp., 231 A.D.2d 420, 422 [1st Dept 1997], lv dismissed 89 N.Y.2d 982 [1996]). Defendants relied on expert affirmations by licensed physicians who are board certified in, inter alia, anesthesiology and surgery. The experts opined that there were no departures from the standard of care with respect to the treatment of Severino and that any alleged act or failure to act by defendants did not cause or contribute to Severino's injuries. Specifically, the experts opined that there was no basis to transfer Severino to an intensive care unit since his vital signs were stable. The experts also opined that Severino's non-responsive condition was not attributable to the doses of morphine, explaining that the limited amounts of morphine received by Severino were insufficient to cause him to become nonresponsive and that there were no signs that he had any adverse reaction to the morphine. Rather, the experts opined that Severino's cardiorespiratory arrest was a sudden and unpredictable event. Finally, the experts opined that Severino was timely and properly resuscitated, ventilated, medicated, and intubated in response to his cardiac arrest.

         Accordingly, the burden shifted to plaintiffs to produce evidence in admissible form sufficient to establish the existence of a triable issue of fact (see Sisko, 231 A.D.2d at 422). We find that the affirmations of plaintiffs' experts were sufficient to preclude summary judgment because they raised three potential departures from accepted standards that could have proximately caused Severino's injuries.

         First, plaintiffs' experts opined that defendants departed from accepted standards insofar as they failed to identify several red flags of an adverse morphine reaction and, as a result, prematurely discharged Severino to the surgical floor, where he was no longer under continuous pulse oximetry monitoring. The experts stated that the alleged red flags included slow wake-up time, persistent slurred speech, drowsiness, low blood pressure, rapid and shallow breathing, and oxygen saturation of only 95%.

         While defendants argue, and the dissent agrees, that the purported red flags did not exist, as a factual matter, there is evidence to support plaintiffs' experts' contentions. For instance, Nurse Meenan, a certified registered nurse anesthetist, testified that Severino woke up slowly, and Nurse Choi's departure note referred to slurred speech, rapid and shallow breathing, and blood pressure more than 20% below the preoperative value. To the extent defendants dispute the significance of a slow wakeup or low blood pressure, this dispute is not properly resolved on summary judgment (Bradley v Soundview Healthcenter, 4 A.D.3d 194 [1st Dept 2004] [conflicting expert opinions "raise issues of fact and credibility that cannot be resolved on a motion for summary judgment"]).

         Secondly, plaintiffs' experts opined that defendants departed from accepted standards by failing to recognize that Severino was experiencing an overdose or adverse reaction to morphine. Defendants, however, point to their experts' opinion that the 9 to 13 mg of morphine Severino received was not sufficient to cause an overdose. However, one of plaintiffs' experts opined that, although the amount of morphine (9 to 13 mg) Severino received may not have been excessive for a younger patient without his medical conditions, Severino was at an increased risk of an abnormal reaction due to his age, obesity, and ASA score of III.

         Alternatively, defendants argue that plaintiffs cannot establish that morphine-induced respiratory depression proximately caused Severino's cardiac arrest. But again this is the subject of directly conflicting expert testimony, and thus not an appropriate issue for resolution on summary judgment. Plaintiffs' experts both opined that the aforementioned red flags, as well as Severino's pinpoint pupils, were all consistent with an opioid overdose. Contrary to the dissent's assertion, plaintiffs' experts' reliance on the pinpoint pupils is not impermissible "hindsight" reasoning. On the contrary, the pinpoint pupils are cited not as an example of a red flag that defendants failed to identify but ...

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