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Adams v. Pilarte

Supreme Court of New York, First Department

June 15, 2017

Sarah Adams, etc., et al., Plaintiffs-Respondents,
Juan J. Pilarte, M.D., et al., Defendants, Montefiore Medical Center, Defendant-Appellant.

         Defendant 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 respondents.

          Peter Tom, J.P., Angela M. Mazzarelli, Richard T. Andrias, Sallie Manzanet-Daniels, Troy K. Webber, JJ.


         The 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 [1]. 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.

         On June 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.

         Plaintiff 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.

         On June 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 thromboembolism.

         On June 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.

         On June 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.

         On June 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.

         Upon 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.

         Defendant 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 plaintiff's outcome.

         In 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 ...

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