Heidell, Pittoni, Murphy & Bach, LLP, New York (Daniel S.
Ratner of counsel), for appellants.
& Schonfeld, LLP, New York (Jacob J. Schindelheim of
counsel), for respondents.
Acosta, J.P., Manzanet-Daniels, Webber, Gesmer, JJ.
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.
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.
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.
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.
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
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.
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.
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."
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
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.
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 ...