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Barry v. Lee

Supreme Court of New York, First Department

December 26, 2019

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.

          Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Judy C. Selmeci of counsel), for respondents.

          Sallie Manzanet-Daniels, J.P. Peter Tom, Barbara R. Kapnick, Ellen Gesmer, Anil C. Singh, JJ.


         Plaintiff 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 complaint.

         Plaintiff's expert affidavit raises triable issues of fact that cannot be resolved on this motion for summary judgment.

         The 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 [1]. 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 [2].

         Despite 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.

         Dr. Lee 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 circumstance. [3]

         At 3:59 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 [4]. 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.

         At 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 too late."

         Defendants' 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.

         A 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. [5]

         The 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.

         Since 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 2012]).

         Even 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 ...

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