Montefiore Medical Center appeals from the order of the
Supreme Court, Bronx County (Douglas E. McKeon, J.), entered
August 19, 2016, which, to the extent appealed from as
limited by the briefs, denied its motion for summary judgment
dismissing the complaint as against it.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York
(Judy C. Selmeci of counsel), for appellant.
Rheingold Giuffra Ruffo & Plotkin LLP, New York (Sherri
L. Plotkin and Thomas P. Giuffra of counsel), for
Tom, J.P., Angela M. Mazzarelli, Richard T. Andrias, Sallie
Manzanet-Daniels, Troy K. Webber, JJ.
17-year-old plaintiff received contraceptive counseling from
a nurse practitioner at a school clinic operated by defendant
Montefiore Medical Center (Montefiore). Plaintiff was noted
as having a family history of heart disease and a chronic
heart murmur . In April 2010, plaintiff was
dispensed a contraceptive device known as a NuvaRing, a
hormonal method associated with an increased risk of
developing blood clots. The device is inserted internally by
the patient every month. The nurse practitioner testified
that it was her custom and practice to review the information
contained on the NuvaRing fact sheet/consent form with the
patient prior to dispensing the device. The Montefiore school
clinic records for plaintiff do not include a copy of the
form, either signed or unsigned; however, plaintiff's
mother admitted that she was aware of the risk of blood clots
and had discussed same with her daughter.
1, 2010, plaintiff presented at the school clinic complaining
of shortness of breath and chest pain. The nurse
practitioner's notes indicated "hx [history] of
heart problem." She did not document an examination or
evaluation of plaintiff's heart and lungs. The nurse
practitioner did not consider the NuvaRing as a precipitating
factor of the patient's symptoms, and assessed plaintiff
as being dehydrated.
saw her pediatrician later that same day. He diagnosed her
with asthma, though plaintiff had no prior history of asthma
and did not have any wheezing upon examination.
2, 2010, plaintiff presented to the emergency room at Bronx
Lebanon Hospital complaining of chest pain and intermittent
palpitations. The triage notes clearly noted that plaintiff
was using the NuvaRing device. An EKG was performed and found
to be normal with a prolonged QT interval. Plaintiff was
discharged without being assessed for possible
3, 2010, plaintiff returned to the pediatrician's office
continuing to complain of chest pain. The pain was persistent
without relation to exertion. The pediatrician noted that her
chest pain might be related to costochondral pain. He
instructed her to return in 48 to 72 hours if her symptoms
did not improve.
4, 2010, a Friday, a doctor from Bronx Lebanon called
plaintiff's mother to report "abnormalities"
she had seen on the EKGs taken during plaintiff's
emergency room visit, and recommended that she make an
appointment with plaintiff's pediatric cardiologist.
Plaintiff's mother called the pediatric
cardiologist's office, but was informed that the office
needed to see the hospital records before scheduling an
appointment. The hospital promised to fax the records first
thing on Monday morning, June 7, 2010. An appointment was
scheduled for plaintiff to see the pediatric cardiologist on
June 10, 2010.
8, 2010, plaintiff complained of chest pain and collapsed at
home. Plaintiff's mother began CPR and called EMS. EMTs
shocked plaintiff three times and administered epinephrine
and vasopressin. The total cardiac arrest time was noted to
be eight minutes.
arrival at the hospital, plaintiff was nonresponsive and had
no pupillary reflex. Her score on the Glasgow coma score was
three, the lowest possible score. While in the emergency
room, plaintiff showed evidence of seizure activity. She was
placed on a ventilator and transferred to the pediatric
intensive care unit at Columbia Presbyterian Hospital. Upon
arrival, an echocardiogram showed severely diminished right
ventricular function and a dilated main pulmonary artery. A
CT scan was positive for bilateral pulmonary emboli. An MRI
of the brain showed bilateral infarcts and subacute ischemic
changes in the hippocampal region. Plaintiff remained
hospitalized for a month, and was thereafter transferred to
the NYU Rusk Institute for rehabilitation. As a consequence
of the arrest, she has suffered significant and permanent
brain damage with marked cognitive and fine motor skills
deficits, and requires constant, around-the-clock care.
Montefiore moved for summary judgment, asserting that it did
not depart from accepted standards of medical care and that
any such departure in failing to properly assess and respond
to the patient's forming pulmonary embolism was not the
proximate cause of her injuries (see Frye v Montefiore
Med. Ctr., 70 A.D.3d 15, 24 [1st Dept 2009]). Montefiore
relied on the expert affidavit of Dr. Lisa Bardack, a
board-certified internist. Dr. Bardack opined, based on her
review of the medical records, that there was no indication
to work up plaintiff for thrombophelia. She opined that
plaintiff's family history of heart disease did not
contraindicate prescribing NuvaRing, and that the NuvaRing
fact sheet clearly discussed the warning signs and serious
health problems associated with the contraceptive method,
allowing users to make an informed choice. She opined that no
reasonable or additional follow-up medical care could have
been recommended by the nurse practitioner that was not
provided by the higher level of care providers to which
plaintiff subsequently presented, and that no care rendered
by the clinic's nurse practitioner affected
opposition, plaintiff relied on the affirmation of Dr.
Melanie Gold, a physician board-certified in pediatrics and
adolescent medicine who had experience working in school
medical clinics. Dr. Gold identified the following as
departures from accepted medical practice: the failure to
have plaintiff patient sign the consent form and the failure
to retain a copy; the failure to document that plaintiff was
counseled regarding the serious side effects associated with
the use of the NuvaRing and the importance of immediately
removing the device in the event she experienced such
symptoms; and the failure to properly evaluate plaintiff or
to immediately remove the device when plaintiff presented to
the clinic complaining of chest pain and shortness of breath.
Dr. Gold opined that if the nurse ...