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Bartolacci-Meir v. Sassoon

Supreme Court of New York, First Department

April 20, 2017

Ranee Bartolacci-Meir, et al., Plaintiffs-Respondents,
v.
Robert Sassoon, M.D., Defendant, Ellen Scherl, M.D., et al., Defendants-Appellants.

          Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S. Ratner of counsel), for appellants.

          Koss & Schonfeld, LLP, New York (Jacob J. Schindelheim of counsel), for respondents.

          Acosta, J.P., Manzanet-Daniels, Webber, Gesmer, JJ.

         Order, Supreme Court, New York County (Douglas E. McKeon, J.), entered June 24, 2016, which denied defendants-appellants' motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, and the motion granted. The Clerk is directed to enter judgment accordingly.

         On September 10, 2010, four months after undergoing a cesarean section, plaintiff Raneee Bartolacci-Meir was diagnosed, via laparoscopic surgery, with a fistula. Defendant Dr. Ellen Scherl, a gastroenterologist, treated plaintiff both before and after her cesarean. Defendant Dr. Rasa Zarnegar, a surgeon, first treated plaintiff on July 15, 2010, on referral from an associate of Dr. Scherl. Dr. Scherl and Dr. Zarnegar are employees at defendant New York-Presbyterian/Weill Cornell Medical Center (Presbyterian). Dr. Robert Sassoon, plaintiff's obstetrician, is also a defendant, but not a party to this appeal. The gravamen of plaintiff's claim is that her doctors failed to diagnose the fistula, and that the delay in diagnosis led to the need for extensive resection of her cecum, appendix and intestines.

         Dr. Scherl, Dr. Zarnegar, and Presbyterian moved for summary judgment, arguing that neither doctor deviated from the standard of care for their respective professions, gastroenterology and surgery.

         In support of their motion, defendants submitted an affidavit of Dr. Randolph Steinhagen, a colorectal surgeon, who opined that Dr. Zarnegar's treatment of plaintiff was within good and accepted practice. Specifically, Dr. Steinhagen stated that when Dr. Zarnegar saw plaintiff for the first time on July 15, 2010, he correctly diagnosed her with a surgical site infection, and treated it appropriately, with drainage and antibiotics. According to Dr. Steinhagen, the fluid drained by Dr. Zarnegar was the same fluid shown on the CT scan taken July 15, 2010, a collection in the anterior pelvic wall that tracked the cesarean incision and was not in the pelvic cavity. Dr. Steinhagen further opined that Dr. Zarnegar's treatment on July 20, 2010, i.e., examining the wound, repacking it, and arranging for a visiting nurse to apply VAC (vacuum-assisted closure) dressing therapy, was appropriate. And it was appropriate for the doctor to close the wound on August 2, 2010, after blood and culture testing confirmed that the infection had resolved. When plaintiff appeared on August 3, experiencing swelling, redness and pain at the wound site, she denied fever and was having normal bowel movements. These complaints were consistent with an infection, and it was thus appropriate to treat the wound through August and early September with antibiotics, further drainage, and regular dressing changes with VAC therapy. Dr. Steinhagen averred that nothing in plaintiff's clinical presentation warranted more aggressive intervention until the emergence of brown discharge on September 8, 2010. The July CT scan showed no evidence of fluid in the pelvic cavity or anything suggestive of a fistula; even the September CT scan did not definitely show a fistula. And upon the emergence of discharge containing E. coli bacteria, timely and appropriate follow-up was performed in the form of a CT scan, and scheduling of infectious disease and surgical consultations. With regard to Dr. Scherl, Dr. Steinhagen opined that while a gastroenterologist may be involved in the diagnosis of a fistula in the digestive track, a patient must be referred to a surgeon once the fistula is identified. Thus, it was appropriate for the doctor to defer to Dr. Zarnegar and Dr. Sassoon for the treatment of plaintiff's wound.

         Defendants also submitted an affidavit by Dr. Vijay Yajnik, a gastroenterologist. Dr. Yajnik opined that Dr. Scherl correctly concluded that plaintiff's June 2010 complaints were related to her irritable bowel syndrome (IBS), and there was no evidence of an inflammatory or autoimmune condition. Thus, by prescribing Miralax and Xifax, Dr. Scherl's treatment of plaintiff was within the standard of care for a gastroenterologist. Moreover, nothing in plaintiff's complaints or testing from June to September indicated that Dr. Scherl should revisit her diagnosis. Nor was it outside the standard of care for Dr. Scherl to refer plaintiff to surgeons and defer to those surgeons with regard to treatment of the wound, since gastroenterologists do not treat fistulas. Regarding causation, Dr. Yajnik opined that biopsy results of the colon and ileum confirmed that the fistula did not develop from either IBS or an undiagnosed bowel disorder. Thus, the care rendered by Dr. Scherl had no relationship to the fistula.

         In opposition, plaintiffs argued that Dr. Scherl did not investigate a possible bowel injury "when every indication was that she had experienced a bowel injury, " including that "the CT scan ordered by Dr. Sassoon identified multiple pelvic adhesions." Plaintiffs also argued that Dr. Zarneger should have recognized that plaintiff was not improving and looked beyond the possibility of a superficial infection.

         Plaintiffs submitted an affidavit by Dr. David Befeler, a general surgeon. Dr. Befeler stated that the fistula was caused by operative injury during plaintiff's cesarean section surgery. According to Dr. Befeler, plaintiff "was noted to have had continuous and persistent malodorous discharge which is clearly a surgical problem since the fistula which developed was not managed." Dr. Befeler also stated that the July 14, 2010 CT scan of the pelvis ordered by Dr. Sassoon showed "multiple pelvic adhesions, " and this CT scan was shared with Dr. Scherl. According to Dr. Befeler, Dr. Zarnegar treated plaintiff with "drainage of the fecal leakage at the wound site, " instead of reviewing the CT-Scan, which would have led Dr. Zarnegar to treat plaintiff "more aggressively, " "diagnos[ing] the patient's abscess and sepsis and treat[ing] her fistula surgically." Thus, Dr. Befeler opined, both doctors failed to follow accepted medical practice by requesting "recommendations and guidance regarding either further diagnostic testing or treatment or both." He concluded that if the fistula had been diagnosed two months earlier, a minimally invasive procedure could have been used and resection of the bowels avoided.

         In reply, defendants submitted additional affidavits by Dr. Randolph Steinhagen and Dr. Yajnik. As an initial matter, Dr. Steinhagen opined that plaintiffs' expert's opinion was fatally flawed as to Dr. Scherl, since, as a general surgeon, Dr. Befeler was unqualified to render an opinion on the standard of care for gastroenterologists. He pointed out that when Dr. Scherl first learned of plaintiff's wound issue, plaintiff was already being followed by a surgeon. Dr. Steinhagen also opined that Dr. Befeler mis-characterized the medical records. For example, while Dr. Befeler stated that the July 14, 2010 CT scan showed a bowel injury, the scan showed only a collection of fluid " anterior to the musculature'" of the pelvis, a location outside the pelvic cavity, and thus outside the bowels. According to Dr. Steinhagen, the superficial wound infection depicted in the July CT scan was unrelated to the abscessed cavity between the uterus and bladder identified by a Dr. Milsom in September. Dr. Steinhagen also pointed to the fact that while Dr. Befeler referred to "malodorous discharge" and drainage of fecal matter by Dr. Zarnegar, the medical records showed the fluid was clear and consistently negative for bacteria. Dr. Steinhagen also disagreed with Dr. Befeler's conclusions. For example, Dr. Befeler opined that the left-quadrant pain should have caused Dr. Zarnegar to investigate further, but Dr. Steinhagen observed that such pain is common with both IBS and cesarean section incisions. Regarding Dr. Scherl, Dr. Steinhagen noted that Dr. Befeler did not indicate what steps she should have taken other than those she took, such as referring plaintiff to a surgeon. And on the issue of causation, Dr. Steinhagen disagreed with Dr. Befeler's conclusion that plaintiff suffered an injury to her bowels during the cesarean. According to Dr. Steinhagen, "[T]his conclusion is not at all supported in the medical records and represents pure speculation."

         The court denied defendants' motion. In discussing plaintiff's expert, the court observed that plaintiff "was noted to have continuous and persistent malodorous discharge, " a fact that her expert pointed to as evidence that a fistula had developed but was not being managed.

         Defendants correctly argue on appeal that their experts showed in detail that there was no departure from the standard of care in treating plaintiff and that plaintiffs failed to rebut that showing with a qualified expert who opined based upon facts in the record.

         Where a defendant makes a prima facie case of entitlement to summary judgment dismissing a medical malpractice action by submitting an affirmation from a medical expert establishing that the treatment provided to the injured plaintiff comported with good and accepted practice, the burden shifts to the plaintiff to present evidence in admissible form that demonstrates the existence of a ...


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