Mamidou Barry, as Administrator of the Estate of Mariama Bah, Plaintiff-Appellant,
Christopher C. Lee, M.D., et al., Defendants-Respondents.
Landers & Cernigliaro, P.C., Carle Place (Stanley A.
Landers of counsel), for appellant.
Elser Moskowitz Edelman & Dicker LLP, New York (Judy C.
Selmeci of counsel), for respondents.
Manzanet-Daniels, J.P. Peter Tom, Barbara R. Kapnick, Ellen
Gesmer, Anil C. Singh, JJ.
appeals from a judgment of the Supreme Court, Bronx County
(Joseph E. Capella, J.), entered April 16, 2019, dismissing
the complaint, and bringing up for review an order, same
court and Justice, entered March 29, 2019, which granted
defendants' motion for summary judgment dismissing the
expert affidavit raises triable issues of fact that cannot be
resolved on this motion for summary judgment.
37-year-old decedent was a mother of six who had recently
given birth. She was admitted to defendant Bronx-Lebanon
Hospital Center before noon on February 8, 2017. Defendant
Dr. Lee diagnosed her soon thereafter as suffering from a
pulmonary embolism, an acute condition requiring prompt
emergency treatment. She was both tachycardic and tachypnic
and complained of dizziness and shortness of breath. She
remained tachycardic, which is an indicator that a patient is
hemodynamically unstable, during the entire time she was at
the hospital. The dissent assumes that because decedent's
systolic blood pressure was above 90 that she was
"hemodynamically stable," apparently
misapprehending the term . Decedent was exhibiting signs of
distress including a rapid heartbeat, an elevated rate of
breathing, and shortness of breath, all signs of an effort to
maintain oxygenation .
the prognosis, staff waited hours for blood tests and an
angiogram to confirm the diagnosis. The staff did not
administer tissue plasminogen activator (tPA), which can
dissolve clots and open arteries in 10-15 minutes. While
defendants' expert opined that it would have been
inappropriate to administer tPA based on decedent's blood
pressure readings, plaintiff's expert squarely disagreed.
Defendants' main premise is that tPA, which has the
potential to create uncontrollable bleeding, is
contraindicated for a patient who is already bleeding;
however, neither Dr. Lee nor defendants' expert ever
stated that tPA was contraindicated for decedent because she
had reported postpartum bleeding.
testified that, although there is a six-hour window within
which tPA must be given following the appearance of symptoms,
he did not order it in decedent's case even after
receiving CT scan test results confirming his initial
differential diagnosis that decedent had a pulmonary embolism
because "[w]e do not, as physicians, give tPA for PE
[pulmonary embolism]." Dr. Lee did not expand on this
testimony, but its plain inference is that his practice was
not to administer tPA for pulmonary embolism under any
nearly four hours after she arrived at the emergency
department decedent was put on heparin, a drug that prevents
clots but cannot quickly dissolve them. Defendants'
expert attempts to explain the delay in administering heparin
by opining that staff was awaiting the results of blood tests
to rule out clotting risks. Those tests, which were normal,
were reported 1½ -2½ hours before staff began
administration of heparin . To the extent that Dr. Lee may
have meant, but did not say, that tPA was contraindicated for
decedent because she had told him of postpartum bleeding, Dr.
Lee testified that he had received decedent's blood test
results confirming that she was not anemic approximately
1½ hours before he received the CT scan results
confirming his diagnosis of pulmonary embolism. Accordingly,
by the time the pulmonary embolism diagnosis was confirmed,
he was aware that her postpartum bleeding was not severe
enough to cause her to be anemic.
4:20, over four hours after she had been admitted to the
hospital and diagnosed as suffering from a pulmonary
emobolism, decedent became bradycardic and her oxygen
saturation level plummeted and she went into cardiac arrest.
It was only then, two minutes prior to cardiac arrest, that
staff administered tPA. The treatment rendered to decedent,
in the words of plaintiff's expert, was "too little
expert noted that decedent's elevated D-Dimer assay
results were associated with venous thrombosis, but opined
that it was appropriate to await confirmation of the
diagnosis via CT angiogram. He noted that heparin was ordered
by Dr. Lee at 3:29, within five minutes of learning of the
results of the angiogram. Defendants' expert opined that
treatment of decedent with heparin under the circumstances
was appropriate, but conceded that the process of breaking
down a clot with heparin "occurs slowly over time,
generally taking place over a period of days to weeks."
Defendants' expert opined that tPA was not indicated
unless a patient had a confirmed diagnosis of pulmonary
embolism and persistently less than 90 systolic blood
pressure and that decedent was not a candidate for the drug.
In his opinion, the benefits of tPA did not outweigh the
risks of bleeding and death.
plaintiff is only required to raise a triable issue of fact
as to causation where the defendant makes a prima facie
showing that a claimed departure was not a proximate cause of
the plaintiff's injuries (see Stukas v Streiter,
83 A.D.3d 18, 30 [2d Dept 2011]). While defendants'
expert opines that treatment of decedent was in accordance
with the standard of care, he offers no opinion on causation
other than to state that administration of heparin earlier
would not have changed the results and that decedent's
rapid deterioration and death was not due to any act or
omission on the part of defendants. He does not address the
proposition that prompt administration of tPA would have
increased decedent's chances of survival. 
dissent suggests that defendants' expert opined that tPA
was contraindicated because of decedent's postpartum
bleeding; the dissent, however, relies on a partial quote
from defendants' expert's affidavit. The complete
sentence is: "The patient reported ongoing vaginal
bleeding in her post-partum state, which increased her risk
for bleeding complications with Heparin"
(emphasis added). This statement has no bearing on whether he
believed that tPA was contraindicated.
defendants' claim of entitlement to summary judgment
rests on their allegation that tPA was contraindicated based
on decedent's report of postpartum bleeding, but neither
Dr. Lee nor defendants' expert so stated, defendants have
failed to make a prima facie showing of entitlement to
judgment as a matter of law by establishing the absence of a
triable issue of fact as to whether there was a departure
from accepted standards of medical practice. Accordingly,
plaintiff was not required to present evidence that such a
departure was a proximate cause of Ms. Bah's death
(see Foster-Sturrup v Long, 95 A.D.3d 726');">95 A.D.3d 726 [1st Dept
assuming, arguendo, that defendants made a prima facie case,
the affidavit of plaintiff's expert raises triable issues
of fact requiring a trial. Plaintiff's expert opined that
it was a departure not to order stat blood work after the
diagnosis of pulmonary embolism had been made, and a
departure not to promptly administer a thrombolytic drug (tPA
or similar) to bust the clots that were impeding blood flow
to decedent's lungs. She opined that it was a departure
to wait three hours for the CT angiogram and a departure not
to administer heparin until 3 hours and 46 minutes after the
diagnosis of pulmonary embolism had been made. She further
opined that decedent's vital signs indicated that she was
hemodynamically unstable, making her a candidate for tPA
treatment far earlier than she received it. She opined that
these departures specifically caused decedent to lose a
substantial probability to survive, sufficiently placing both
negligence and causation in issue (see e.g. Flaherty v
Fromberg, 46 A.D.3d 743, 745 [2d Dept 2007] ["(a)s
to causation, the plaintiff's evidence may be deemed
legally sufficient even if its expert cannot quantify the
extent to ...