        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

914
CA 12-00577
PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND MARTOCHE, JJ.


JOANNE WILK, AS ADMINISTRATRIX OF THE ESTATE
OF STEVEN R. WILK, DECEASED,
PLAINTIFF-RESPONDENT,

                    V                               MEMORANDUM AND ORDER

DAVID M. JAMES, M.D., KALEIDA HEALTH, DOING
BUSINESS AS MILLARD FILLMORE HEALTH
SYSTEM-THREE GATES CIRCLE HOSPITAL, SADIR
ALRAWI, M.D., MERCY AMBULATORY CARE CENTER,
CATHOLIC HEALTH SYSTEM, INC., BUFFALO
EMERGENCY ASSOCIATES, LLP, DEFENDANTS-APPELLANTS,
ET AL., DEFENDANTS.


ROACH, BROWN, MCCARTHY & GRUBER, P.C., BUFFALO (JOHN P. DANIEU OF
COUNSEL), FOR DEFENDANT-APPELLANT KALEIDA HEALTH, DOING BUSINESS AS
MILLARD FILLMORE HEALTH SYSTEM-THREE GATES CIRCLE HOSPITAL.

GIBSON, MCASKILL & CROSBY, LLP, BUFFALO (RYAN P. CRAWFORD OF COUNSEL),
FOR DEFENDANTS-APPELLANTS SADIR ALRAWI, M.D. AND BUFFALO EMERGENCY
ASSOCIATES, LLP.

RICOTTA & VISCO, ATTORNEYS & COUNSELORS AT LAW, BUFFALO (K. JOHN BLAND
OF COUNSEL), FOR DEFENDANT-APPELLANT DAVID M. JAMES, M.D.

DAMON MOREY LLP, BUFFALO (JAMES E. BALCARCZYK, II, OF COUNSEL), FOR
DEFENDANTS-APPELLANTS MERCY AMBULATORY CARE CENTER AND CATHOLIC HEALTH
SYSTEM, INC.

HAMSHER & VALENTINE, BUFFALO (RICHARD P. VALENTINE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeals from an order of the Supreme Court, Erie County (Patrick
H. NeMoyer, J.), entered July 14, 2011 in a medical malpractice
action. The order denied the motions of defendants David M. James,
M.D., Kaleida Health, doing business as Millard Fillmore Health
System-Three Gates Circle Hospital, Sadir Alrawi, M.D., Mercy
Ambulatory Care Center, Catholic Health System, Inc., and Buffalo
Emergency Associates, LLP for summary judgment dismissing the amended
complaint and all cross claims against them.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.
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                                                         CA 12-00577

     Memorandum: Plaintiff commenced this medical malpractice and
wrongful death action seeking damages for the conscious pain and
suffering, and death of Steven R. Wilk (decedent) as a result of the
alleged failure by defendants to diagnose and treat decedent’s aortic
dissection in a timely manner. The death certificate revealed that
the immediate cause of death was a “cerebral infarct with
herniation[,] . . . due to or as a consequence of . . . shock with
intestinal ischemia[,] . . . due to or as a consequence of . . .
aortic dissection.” Defendants-appellants (defendants) moved for
summary judgment dismissing the amended complaint and all cross claims
against them and, although Supreme Court concluded that defendants met
their initial burden on their respective motions, the court determined
that plaintiff’s submissions raised issues of fact. Thus, the court
denied the motions. We affirm.

     On February 13, 2004, decedent was transported by ambulance to
the emergency room operated by defendant Kaleida Health, doing
business as Millard Fillmore Health System-Three Gates Circle Hospital
(Kaleida), and was treated by defendant David M. James, M.D. and
Kaleida’s staff. The ambulance record indicated that decedent’s
“chief complaint” was “severe back pain” that, according to the
“subjective assessment” entry on that record, started at 9:30 a.m. and
felt like someone “hit [him with a] baseball bat.” However, the
“comments” section of the ambulance record contains an entry stating
that the pain started “2 days ago.” The triage nurse at Kaleida, a
hospital employee, documented a “2 day [history] of lower back pain,”
but did not document decedent’s complaint that the severe back pain
started within 90 minutes of his arrival at the emergency room. Thus,
decedent’s report of the sudden onset of severe back pain was not
carried forward from the ambulance record to the triage note in his
medical chart at Kaleida. It is undisputed that the sudden onset of
severe back pain is a telltale symptom of aortic dissection.

     The nurse practitioner who initially assessed decedent upon his
arrival at the emergency room testified at her deposition that she
reviewed the triage note to obtain information about the history of
decedent’s onset of pain and that it did not indicate that the pain
had started suddenly at 9:30 a.m. that morning. The nurse
practitioner did not recall whether she reviewed the ambulance record
when she saw decedent in the emergency room. The nurse practitioner
also testified that decedent’s symptoms supported a differential
diagnosis of aortic dissection. She agreed that the appropriate
diagnostic test to rule out an aortic dissection was a CT scan with
contrast. Nonetheless, a CT scan was neither ordered nor performed,
and decedent was discharged with a diagnosis of “thoracic spine
strain.” The nurse practitioner explained at her deposition that she
abandoned the differential diagnosis of aortic dissection because, in
her experience, patients who “have had a dissecting aneurism, do not
have pain for two days prior to ending up in the emergency room.”
Notably, defendants do not dispute that decedent was suffering from an
aortic dissection on February 13, 2004. Instead, they contend that
they did not deviate from the applicable standards in their care and
treatment of decedent. The record contains a consultation note from a
cardiac surgeon on March 1, 2004 stating that decedent had an “old”
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                                                         CA 12-00577

aortic dissection that was in existence “at least to 2/15.” Further,
defendants do not dispute on this record that, with a timely diagnosis
of aortic dissection and appropriate treatment, decedent would have
had a substantial likelihood of avoiding catastrophic injury and
premature death.

     Two days after his initial visit, decedent returned to the
emergency room at Kaleida and was again treated by James. Decedent
complained of back pain that was at a level of severity of “10/10” and
felt as though “a baseball bat hit [him].” Decedent was discharged by
James 30 minutes later with a “diagnosis” of “sciatica.” Forty-four
minutes later, while waiting for his wife to pick him up from the
emergency room, decedent experienced “excruciating sudden [right]
flank and [left] abdominal pain[]” and returned to the emergency room.
Ultimately, James ordered a CT scan without contrast. The CT scan did
not confirm James’s preliminary diagnosis of kidney stones, and the
radiologist’s report recommended that the test be repeated with
contrast. Notwithstanding that recommendation, James did not order
another CT scan. Although the CT scan performed without contrast did
not reveal the presence of any kidney stones, James discharged
decedent from the emergency room with the “impression” that decedent
had “sciatica/[left] renal stones.”

     One day later, decedent was admitted to defendant Mercy
Ambulatory Care Center, a member facility of defendant Catholic Health
System, Inc. (collectively, Mercy/CHS). The triage information sheet
incorrectly documented that decedent had seen and was catheterized by
his urologist the day before. In fact, decedent had not seen his
urologist the day before, but had been catheterized at his second
emergency room visit at Kaleida in three days after presenting at both
visits with severe back pain. Under the section entitled “past
medical history,” the triage information sheet referenced urinary
retention, a coronary artery bypass graft a “few years ago” and
eczema, but contained no reference to the back pain that led to
decedent’s two prior emergency room visits. Decedent was treated by
defendant Sadir Alrawi, M.D., an employee of defendant Buffalo
Emergency Associates, LLP (BEA). Alrawi did not note a “chief
complaint” in decedent’s emergency room treatment record (chart).
However, under the section of the chart entitled “[d]uration,” Alrawi
noted that decedent was experiencing “severe pain in the supra pubic
area.” Decedent’s two recent emergency room visits were not described
in the chart. Alrawi catheterized decedent’s bladder and discharged
him with a “secondary diagnosis” of urinary retention. No “[p]rimary
diagnosis” or “[d]ifferential diagnosis” was entered in decedent’s
chart by Alrawi or the staff at Mercy/CHS.

     On February 18, 2004, decedent returned to the emergency room
operated by Kaleida with complaints of lower back pain and the
inability to feel or move his legs. Imaging studies established that
decedent had extensive internal bleeding in the area of his lumbar-
thoracic spine with “mild mass effect on the adjacent spinal cord.”
Ultimately, a CT scan with contrast performed on March 1, 2004
revealed an aortic dissection from the “proximal ascending aorta to
[the] mid-abdomen.” Decedent’s condition worsened over the next two
                                 -4-                           914
                                                         CA 12-00577

days, and he died on March 3, 2004.

     We conclude that, although defendants met their initial burden on
their respective motions, plaintiff raised triable issues of fact
whether defendants deviated from the accepted standards of medical
care and whether those deviations caused decedent’s injuries and
ultimate death. We note at the outset that Kaleida does not contend
on appeal that it cannot be held vicariously liable for the acts of
James, even though he was not a hospital employee (see Mduba v
Benedictine Hosp., 52 AD2d 450, 452). Thus, Kaleida is deemed to have
abandoned any such contention (see Ciesinski v Town of Aurora, 202
AD2d 984, 984). With respect to James, plaintiff submitted the
affidavit of a physician who is board certified in emergency medicine,
in which the physician opined that aortic dissection is a
“life-threatening” condition and should be promptly ruled out through
further testing where, as here, the patient presents with a
constellation of symptoms that are typical of that condition. He
further opined that, given the information available to James, James’s
failure to consider and pursue a diagnosis of aortic dissection was a
deviation from the relevant standard of care. Plaintiff’s expert
further opined that, on February 13 and 15, 2004, James departed from
good and acceptable medical practice by, inter alia, failing to elicit
a proper medical history from decedent and failing to include and
pursue aortic dissection as a differential diagnosis for decedent. In
particular, plaintiff’s expert opined that the failure to order a CT
scan with contrast on February 13 and 15 was a clear deviation from
the accepted standards of medical care that deprived decedent of the
opportunity for an accurate diagnosis and timely surgical
intervention. The opinion of plaintiff’s expert raised a triable
issue of fact whether James departed from the accepted standards of
medical care (see Ryan v Santana, 71 AD3d 1537, 1538; cf. Imbierowicz
v A.O. Fox Mem. Hosp., 43 AD3d 503, 505; Blanar v Dickinson, 296 AD2d
431, 432; see generally Carter v New York City Health & Hosps. Corp.,
47 AD3d 661, 663). Plaintiff’s expert further stated that James’s
departures from the accepted standards of medical care were a
substantial factor in causing decedent’s injuries and his eventual
death, and thereby raised triable issues of fact with respect to
causation (see Daugharty v Marshall, 60 AD3d 1219, 1220-1222). With
respect to the liability of Kaleida for the acts or omissions of its
employees, plaintiff’s expert opined that the failure of the triage
nurse to record and report decedent’s history of sudden onset of back
pain, which began within 90 minutes of decedent’s arrival at the
emergency room, was a departure from the accepted standards of medical
care and that the failure to diagnose and treat the aortic dissection
was a direct consequence of that departure. In light of the
foregoing, we conclude that the court properly denied the motions of
James and Kaleida because the “motion papers presented a credibility
battle between the parties’ experts, and issues of credibility are
properly left to a jury for its resolution” (Barbuto v Winthrop Univ.
Hosp., 305 AD2d 623, 624; see generally Imbierowicz, 43 AD3d at 505).

     Mercy/CHS do not contend on appeal that they cannot be held
vicariously liable for the alleged negligence of Alrawi (see Mduba, 52
AD2d at 454), and thus they are deemed to have abandoned any such
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                                                         CA 12-00577

contention (see Ciesinski, 202 AD2d at 984). With respect to the
treatment provided by the employees of Mercy/CHS, plaintiff’s board
certified emergency medicine expert opined that the triage nurse’s
inaccurate documentation of decedent’s urology treatment history and
symptoms, together with her failure to ascertain that decedent had
experienced a sudden onset of back pain three days earlier resulting
in two emergency room visits during that time frame, were deviations
from the accepted standards of medical care. With respect to the
treatment of decedent on February 16, 2004 that was provided by
Alrawi, as an employee of BEA, at Mercy/CHS, plaintiff’s expert opined
that Alrawi incorrectly noted that decedent had a history of multiple
catheters for urinary retention and failed to elicit an accurate
medical history from decedent. Plaintiff’s expert opined that, as a
result, Alrawi incorrectly diagnosed decedent as having a “known case
of [benign prostatic hypertrophy].” Further, plaintiff’s expert
opined that Alrawi failed to elicit an accurate and thorough history
regarding decedent’s two recent emergency room visits. Decedent’s
chart from the Mercy/CHS visit does not contain any indication that he
was at the Kaleida emergency room on February 13, 2004. Although the
Mercy/CHS chart indicates that decedent went to the Kaleida emergency
room the day before, there is no indication of the reason why decedent
was in the emergency room that day or what the discharge diagnosis
was, if any. Further, Alrawi incorrectly wrote on decedent’s chart
that, when decedent was catheterized at the Kaleida emergency room,
“no urine” was obtained. The Kaleida medical chart for decedent’s
February 15, 2004 visit, however, indicates that “1400 cc[s]” of urine
were obtained from decedent as a result of the catheterization that
day. According to plaintiff’s expert, these deviations from the
accepted standards of medical care resulted in Alrawi’s failure to
learn of decedent’s prior complaints of severe lower back pain,
Alrawi’s misdiagnosis of “urinary retention,” and his alleged
negligent failure to diagnose and provide appropriate treatment for
decedent’s aortic dissection. We conclude that plaintiff’s
submissions raised a credibility dispute between the parties’ experts
and that the court properly concluded that issues of fact precluded
summary judgment in favor of Alrawi, BEA, and Mercy/CHS (see Barbuto,
305 AD2d at 624).

     We reject defendants’ contention that the opinions of plaintiff’s
expert were conclusory, unfounded and speculative. The affidavits of
plaintiff’s expert with respect to each defendant were based upon the
expert’s review of decedent’s medical records, medical history and the
discovery material exchanged. Each of those affidavits “attest[ed] to
a departure from accepted practice and contain[ed] the attesting
[expert’s] opinion that [the respective defendants’] omissions or
departures were a competent producing cause of” decedent’s injuries
and death (Latona v Roberson, 71 AD3d 1498, 1499 [internal quotation
marks omitted]; see Bell v Ellis Hosp., 50 AD3d 1240, 1242; Menzel v
Plotnick, 202 AD2d 558, 559).

     In determining a summary judgment motion, “[i]ssue-finding,
rather than issue-determination, is the key to the procedure” (Esteve
v Abad, 271 App Div 725, 727; see Sillman v Twentieth Century-Fox Film
Corp., 3 NY2d 395, 404, rearg denied 3 NY2d 941), and we respectfully
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                                                         CA 12-00577

submit that our dissenting colleague engaged in issue determination
rather than issue finding. We note that our dissenting colleague
relies upon the absence of entries in decedent’s medical records with
respect to an aortic dissection to support the theory that defendants
did not deviate from accepted standards of emergency room care in
their diagnosis and evaluation of decedent’s symptoms. The entire
crux of plaintiff’s case, however, is that defendants prematurely
abandoned or failed to pursue an appropriate differential diagnosis of
aortic dissection. Thus, in our view, the absence of any reference in
decedent’s medical records to an aortic dissection is consistent with
a claim of failure to diagnose.

      Although the relevant medical care of decedent began on February
13, 2004, the first reference to an aortic dissection in his medical
records is in a cardiothoracic surgeon’s consultation note of March 1,
2004. Plaintiff’s expert opined that, “[h]ad a dissection been
diagnosed, cardio thoracic surgeons would be called to the ER to
evaluate the patient,” and, “[e]ven . . . 48 hours [after February 13,
2004], there was still a significant likelihood that surgery would
have prevented hemorrhage into his spinal column and would have
avoided the catastrophic injuries which [decedent], eventually,
sustained, including his premature death.” Although the dissent
relies upon the cardiothoracic surgeon’s consultation note to
criticize the opinion of plaintiff’s expert on causation, we note that
the same consultation note states that the aortic dissection existed
as early as February 15, 2004. We also note that our dissenting
colleague concludes that the death certificate “contradicts” the
opinion of plaintiff’s expert. We conclude, however, that such
“contradiction” supports our conclusion that there is a clear issue of
fact.

     We base our determination that plaintiff raised an issue of fact
on the record as a whole; whereas, our dissenting colleague relies on
select portions of decedent’s medical records to support her
conclusion that plaintiff failed to raise an issue of fact in
opposition to the motions. For example, we note that, in criticizing
the opinion of plaintiff’s expert that the aortic dissection existed
as early as February 13, 2004, the dissent relies on the entry in the
death certificate stating that the aortic dissection existed for only
a period of “days” prior to decedent’s death on March 3, 2004.

     We also note that the dissent fails to mention that decedent
described his severe back pain, which started at 9:30 a.m. on February
13, 2004, as feeling like someone “hit [him with a] baseball bat.”
According to plaintiff’s expert, the sudden onset of back pain of that
nature and intensity is a telltale symptom of aortic dissection.
Instead, the dissent discusses only that portion of the record wherein
decedent also reported experiencing back pain that was of a
qualitatively different nature and intensity two days earlier, and
concludes that defendants acted reasonably in relying only upon that
significantly different symptom.

     In sum, we conclude that plaintiff raised issues of fact
sufficient to defeat the motions for summary judgment dismissing the
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                                                          CA 12-00577

amended complaint (see Zuckerman v City of New York, 49 NY2d 557,
562).

     All concur except PERADOTTO, J., who dissents and votes to reverse
in accordance with the following Memorandum: I respectfully dissent.
In my view, defendants-appellants (defendants) met their initial
burden of establishing the absence of medical malpractice on their
respective motions for summary judgment dismissing the amended
complaint and all cross claims against them, and plaintiff failed to
raise a triable issue of fact in opposition to the motions. I would
therefore reverse the order, grant the motions, and dismiss the
amended complaint and all cross claims against defendants.

     This matter arises from the care and treatment rendered   to Steven
R. Wilk (decedent) during four hospital visits that occurred   over a
period of six days in February 2004, which culminated in his   admission
to the hospital on February 18, 2004 and his death two weeks   later.

     On February 13, 2004, decedent was transported via ambulance to
the emergency room at defendant Kaleida Health, doing business as
Millard Fillmore Health System-Three Gates Circle Hospital (Kaleida).
According to the ambulance record, decedent complained of lower back
pain that began two days earlier and became “severe about 9:30” that
morning. He reported experiencing some relief with pain medication.
Decedent was triaged at the hospital shortly after 11:00 a.m., and
complained of sharp, constant pain in his lower back that increased
with movement and radiated down both legs. His prior medical history
included coronary artery disease, coronary artery bypass graft
surgery, aortic valve replacement, and hypertension. Decedent’s
medications included Coumadin, an anticoagulant that was prescribed
after his open heart surgery, and Lisinopril, which was prescribed to
treat heart disease and hypertension.

     At approximately 11:35 a.m., decedent was assessed by a nurse
practitioner who was working under the supervision of defendant David
M. James, M.D. The nurse practitioner’s notes indicate that decedent
“complain[ed] of back pain which started suddenly two days ago after
turning suddenly.” Decedent rated his pain as an 8 out of 10 on the
pain scale, and indicated that it increased with movement and radiated
down both legs. Decedent reported that he had taken pain medication
at 9:30 a.m., which had resulted in some relief, but that his pain
persisted. His “review of systems” was negative except for back pain,
and his physical examination was normal.

     The nurse practitioner ordered that decedent be given intravenous
administration of pain medication, Prothrombin Time and International
Normalized Ratio (PT/INR) testing to rule out an epidural bleed, and a
thoracic spine X ray to rule out a fracture. Decedent’s INR level was
“slightly . . . subtherapeutic,” meaning that he was not at an
increased risk of bleeding. The X ray revealed moderate degenerative
changes in decedent’s thoracic spine, osteopenia, and “anterior
wedging of T9 and L1 vertebral bodies.” By 12:00 p.m., decedent was
walking without difficulty, and he reported that the pain medication
had an “excellent effect” and that his pain level was a 1 out of 10.
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                                                         CA 12-00577

He was discharged shortly thereafter with a diagnosis of thoracic
strain, and was directed to follow up with his primary care physician
within three to four days and to return to the hospital if his
symptoms worsened or if he experienced loss of bladder or bowel
control, which could indicate a neurological problem.

     Two days later, on February 15, 2004, decedent returned to
Kaleida complaining of lower back pain that radiated into his legs and
was evaluated by Dr. James. Decedent reported that the pain
medication and muscle relaxer that had been prescribed at the prior
hospital visit “[p]rovided relief,” but that on February 15 “[he] felt
he had more pain into both upper thighs.” Dr. James’s review of
systems was negative with the exception of back pain and, upon
physical examination, Dr. James determined that decedent was in no
acute distress and exhibited no sensory deficits. Dr. James noted
possible diagnoses of sciatica or kidney stones. Decedent was
discharged shortly thereafter with a prescription for a steroid to
reduce inflammation. At the time of discharge, decedent reported a
pain level of 3 out of 10, and his condition was described as stable.

      While waiting for his wife to pick him up, decedent complained of
sudden right flank and left abdominal pain. Dr. James ordered
urinalysis and a CT scan of decedent’s abdomen and pelvis, without
contrast, to check for kidney stones. The CT scan revealed, inter
alia, “[a] unilaterally enlarged left kidney with perinephric
stranding”; atherosclerotic changes in the aortic, iliac, and femoral
arteries; and a “[l]arge urinary bladder with mildly enlarged
prostate, suggestive of outlet obstruction.” As a result, Dr. James
ordered that decedent have a Foley catheter inserted, after which
1,400 cubic centimeters of urine were released. Shortly thereafter,
decedent reported that he “felt well,” and he was discharged with a
direction to follow up with his primary care doctor within one to two
days.

     The next day, decedent complained to his treating urologist that
he was unable to urinate. Because it was after business hours, the
urologist instructed decedent to go to the hospital to have a Foley
catheter inserted. Decedent arrived at defendant Mercy Ambulatory
Care Center, Inc., a member of defendant Catholic Health System
(collectively, Mercy/CHS), at approximately 7:00 p.m. on February 16,
2004. Decedent told the triage nurse that he had been unable to
urinate for more than 24 hours, and he reported a prior medical
history of urinary retention. He further complained of pressure in
his suprapubic area. Decedent was hemodynamically stable, with the
exception that his blood pressure was elevated. Within 10 minutes of
decedent’s arrival at Mercy/CHS, a nurse inserted a Foley catheter and
1,000 cubic centimeters of urine were released.

     Decedent was thereafter evaluated by defendant Sadir Alrawi,
M.D., an employee of defendant Buffalo Emergency Associates, LLP. Dr.
Alrawi’s notes indicate that decedent was a “known case of BPH [benign
prostatic hyperplasia],” i.e., enlarged prostate, and that he had been
catheterized at Kaleida the day before. Decedent complained of severe
pain in his suprapubic area——the area above his bladder——and an
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                                                         CA 12-00577

inability to urinate. Dr. Alrawi spoke to the on-call physician in
the office of decedent’s treating urologist, who indicated that
decedent should remain catheterized and follow up with his urologist.
Following catheterization, decedent’s blood pressure returned to
normal. He was discharged at 10:30 p.m. in an “improved” condition
and was instructed to “follow-up with [his urologist] in [the]
morning.”

     Decedent did not follow up with his urologist as directed. On
February 18, 2004, decedent returned to Kaleida complaining of
increased lower back pain that radiated into both legs and an
inability to move his legs. Upon evaluation, decedent reported a
fever, fatigue, back and neck pain, paresthesias, gait disturbance,
and focal weakness. Decedent was admitted to the hospital under the
care of a neurosurgeon with a principal diagnosis of paraplegia and
secondary diagnoses of spinal hematoma and infarct, coagulopathy
(bleeding disorder), and rheumatic heart disease. Decedent had a
significantly elevated INR level, and he was treated with vitamin K
and fresh frozen plasma. MRIs of decedent’s spine, which were
performed with and without contrast, revealed “extensive intraspinal
signal abnormality suggesting an extensive hemorrhage.” That evening,
decedent underwent a laminectomy in order to evacuate intradural clots
in his thoracic and lumbar spine.

     After the surgery, decedent experienced “transient improvement
and then subsequently the loss of function bilaterally.” Imaging
revealed “cord signal changes most consistent with swelling or
infarction” and “an area of residual clot at the T10-11 level on the
left-hand side, as well as an area within the [spinal column] and
about the L3 level with suggestion of mass effect.” As a result,
decedent underwent a second surgery on February 20, 2004 for a
reevaluation of his thoracic and lumbar spine, and further removal of
subdural hematomas. Progress notes indicate that decedent improved
somewhat after the second surgery and that decedent was to be
transferred to a spinal cord rehabilitation center. On March 1, 2004,
however, decedent became acutely disoriented and short of breath. A
pulmonary embolism was suspected, and a head and chest CT scan with
contrast was ordered. The CT scan ruled out a pulmonary embolism, but
revealed an aortic dissection. There was, however, no hematoma,
rupture, or leak around the aorta. A cardiothoracic surgery consult
note states that decedent’s altered mental status likely resulted from
“a thrombus (blood clot) on his mechanical aortic valve causing a
small cerebral embolus.” The blood clot, in turn, resulted from a
“lack of anticoagulation.”

     Decedent’s condition deteriorated over the next two days, and he
died on March 3, 2004. The death certificate lists the immediate
cause of death as “cerebral infarct with herniation” occurring within
“hours” of decedent’s death. The cerebral infarct was “due to or as a
consequence of” shock with intestinal ischemia beginning “days” before
decedent’s death which, in turn, was “due to or as a consequence of”
aortic dissection, which likewise began “days” prior to decedent’s
death. The certificate also lists “spinal cord infarct [secondary to]
hematoma” as another “significant condition contributing to death but
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                                                         CA 12-00577

not related to” the other listed causes.

     Plaintiff commenced this medical malpractice and wrongful death
action seeking damages for decedent’s wrongful death and conscious
pain and suffering. In her bills of particulars, plaintiff broadly
alleged that defendants were negligent in, inter alia, failing to
adequately assess and monitor decedent, failing to properly examine
and test decedent in a timely manner, and failing to properly diagnose
decedent’s condition.

     After discovery, defendants moved for summary judgment dismissing
the amended complaint and all cross claims against them. As plaintiff
correctly conceded below, each of the defendants met their initial
burden on their respective motions of establishing “either the absence
of any departure from good and accepted medical practice or that any
departure was not the proximate cause of [decedent]’s alleged
injuries” (Shichman v Yasmer, 74 AD3d 1316, 1318; see O’Shea v Buffalo
Med. Group, P.C., 64 AD3d 1140, 1140, appeal dismissed 13 NY3d 834).
Each defendant submitted the affidavit of an expert in which the
expert opined that defendants did not deviate from accepted medical
practice in their care and treatment of decedent, and that any acts or
omissions on their part did not cause or contribute to decedent’s
death (see Lake v Kaleida Health, 59 AD3d 966, 966; Darling v Scott,
46 AD3d 1363, 1364). In their affidavits, the experts directly
addressed each of the allegations of negligence in plaintiff’s bills
of particulars (see Abbotoy v Kurss, 52 AD3d 1311, 1312, lv denied 55
AD3d 1421), and their opinions were supported by decedent’s medical
records and the deposition testimony of the medical professionals who
treated decedent (see Alvarez v Prospect Hosp., 68 NY2d 320, 325).

     For example, with respect to the treatment rendered at Kaleida on
February 13 and 15, 2004, Dr. James submitted the affidavit of a
physician who is board certified in emergency medicine. In the
affidavit, the expert opined that the diagnosis of thoracic strain on
February 13, 2004 was appropriate based on decedent’s presentation,
symptoms, and X ray results. The expert noted that decedent’s pain
improved significantly upon the administration of non-narcotic pain
medications—decedent had a pain level of 8 out of 10 upon arrival and
a pain level of 1 out of 10 upon discharge—and that he was walking
without difficulty at the time of discharge. Decedent’s INR level was
“subtherapeutic,” indicating that he was “not at risk for
complications arising from the use of anticoagulation medication, such
as bleeding.” Dr. James also submitted the deposition testimony of
the nurse practitioner who treated decedent on February 13, 2004. The
nurse practitioner stated that decedent “presented with a classic
history for muscle spasms,” i.e., a sharp, sudden onset of pain that
was constant and increased with movement.

     As for the treatment rendered on February 15, 2004, the expert
for Dr. James noted that decedent’s neurological examination was
normal, and that Dr. James properly referred to and relied upon
decedent’s INR reading from February 13. According to the expert, the
symptoms decedent experienced on February 15—urinary retention, flank
pain, and abdominal pain—are consistent with a diagnosis of kidney
                                 -11-                          914
                                                         CA 12-00577

stones and that a CT scan without contrast is the proper test to
confirm or rule out such a diagnosis. The expert opined that
decedent’s CT scan results were also consistent with a diagnosis of
kidney stones inasmuch as the scan showed an enlarged left kidney,
which is indicative of a “recent obstruction.” According to the
expert, decedent’s “presentation” on February 15, 2004 was “not
consistent with an epidural hematoma or aortic dissection.”

     Additionally, with respect to the treatment rendered to decedent
on February 16, 2004 at Mercy/CHS, Dr. Alrawi submitted the affidavit
of a physician who is board certified in emergency medicine. The
expert opined that it was reasonable for Dr. Alrawi to conclude, based
upon decedent’s stated history and his physical examination, that
decedent’s suprapubic pain was the result of urinary retention related
to BPH. The expert noted that, after catheterization, decedent’s
blood pressure returned to normal. The expert opined that, based on
decedent’s clinical presentation, his history, and the medications he
reported taking, there was no reason for Dr. Alrawi to suspect
bleeding or a spinal hematoma. The expert further opined with a
reasonable degree of medical certainty that “the spinal hematoma that
was diagnosed on February 18, 2004 most likely formed quickly and was
not present at the time [decedent] was seen by Dr. Alrawi.” The
expert noted that a pathology report generated from a specimen
obtained during decedent’s February 18, 2004 laminectomy described an
“organizing” blood clot, but did not indicate the presence of “old
blood.” In the expert’s opinion, the pathology results indicate that
it was “unlikely” that the spinal hematoma discovered on February 18,
2004 was present 48 hours earlier when decedent was seen at Mercy.
The expert thus opined that it was reasonable for Dr. Alrawi to
diagnose decedent with urinary retention; to treat that condition with
catheterization, antibiotics, and pain medication; and to instruct
decedent to follow up with his treating urologist. Indeed, Dr. Alrawi
testified at his deposition that the most common cause of urinary
retention is a prostatic condition, i.e., BPH.

     Thus, inasmuch as defendants met their initial burden on their
respective motions, the burden shifted to plaintiff to “raise triable
issues of fact by submitting a physician’s affidavit both attesting to
a departure from accepted practice and containing the attesting
[physician’s] opinion that the defendant[s’] omissions or departures
were a competent producing cause of the injury” (O’Shea, 64 AD3d at
1141 [internal quotation marks omitted]; see Moran v Muscarella, 85
AD3d 1579, 1580). It is well established that “[g]eneral allegations
of medical malpractice, merely conclusory and unsupported by competent
evidence tending to establish the essential elements of medical
malpractice, are insufficient to defeat defendant[s’] . . . summary
judgment motion[s]” (Alvarez, 68 NY2d at 325). Thus, “[w]here the
expert’s ultimate assertions are speculative or unsupported by any
evidentiary foundation, . . . [his or her] opinion should be given no
probative force and is insufficient to withstand summary judgment”
(Diaz v New York Downtown Hosp., 99 NY2d 542, 544).

     Supreme Court concluded, and the majority agrees, that plaintiff
raised a triable issue of fact in opposition to the motions. I
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                                                         CA 12-00577

disagree. In my view, the opposing affidavits of plaintiff’s expert
were conclusory and did not directly address or refute the prima facie
showing in the detailed affidavits of defendants’ experts (see Foster-
Sturrup v Long, 95 AD3d 726, 728-729). Moreover, plaintiff’s expert
relies upon a series of vague and speculative assumptions, which are
unsupported or contradicted by the record.

     The crux of the opinion of plaintiff’s expert is that on February
13, 15, and 16, 2004, i.e., the dates of the alleged negligence
herein, decedent was suffering from a “thoracic and abdominal aortic
dissection,” and that the undetected aortic dissection caused the
cascade of medical events commencing with decedent’s admission to the
hospital on February 18, 2004 and terminating with his death several
weeks later. Plaintiff’s expert opines that defendants’ failure to
diagnose that condition in a timely manner “deprived [decedent] of a
chance at timely intervention for treatment of his aortic dissection
before the vessel started to hemorrhage,” and that “[a]ppropriate and
timely emergency intervention would have, more probably than not,
identified the presence of a dissecting thoracic and abdominal aorta
which could have been surgically treated before causing spinal cord
injury.”

     There is simply nothing in the medical records, however, to
support the opinion of plaintiff’s expert that decedent’s symptoms on
the dates at issue and his subsequent injuries were caused by a
ruptured aortic dissection. The voluminous medical records contain
only two references to an aortic dissection, neither of which are
specifically referred to in the affidavit of plaintiff’s expert: (1)
a cardiothoracic surgery consultation note dated March 1, 2004; and
(2) decedent’s death certificate. On March 1, 2004, which was more
than two weeks after defendants’ alleged negligence, decedent suddenly
became disoriented and short of breath. As a result, decedent
underwent a CT scan of his head and chest, with contrast, for the
purpose of ruling out a suspected pulmonary embolism. No report from
that CT scan appears in the record. According to a handwritten
cardiothoracic consultation note, however, the CT scan revealed an
aortic dissection. The majority relies upon the first part of the
note, which states that a non-contrast CT scan performed approximately
two weeks earlier shows “calcification at the center of the aorta at
[approximately] diaphragmatic level. This suggests the dissection is
old (at least to 2/15),” i.e., the date of the prior CT scan. The
remainder of the note, however, concludes that there was “no hematoma,
rupture or leak around the aorta” and, indeed, that there was “[n]o
evidence of rupture/impending rupture.” That statement undercuts the
theory of plaintiff’s expert that plaintiff’s injuries were caused by
a hemorrhage or rupture of the aorta. Indeed, the note proceeds to
state that the aortic dissection was “probabl[y] old . . . , most
likely occurring” after decedent’s 2002 aortic valve replacement
surgery. According to the note, decedent’s altered mental state
likely resulted from a cerebral embolus caused by a thrombus, i.e., a
blood clot, on decedent’s mechanical aortic valve, which in turn
resulted from a lack of anticoagulation therapy. Plaintiff’s expert
fails to address that information. The only other reference to an
aortic dissection is found in the death certificate, which lists
                                 -13-                          914
                                                         CA 12-00577

“aortic dissection” as one of the secondary causes of death.
According to the death certificate, however, that condition existed
for only a period of “days” prior to decedent’s death on March 3,
2004, which contradicts the conclusion of plaintiff’s expert that
decedent suffered from an aortic dissection as early as February 13,
2004. Further, the death certificate lists “spinal cord infarct
[secondary to] hematoma”—the condition for which decedent was admitted
to the hospital on February 18, 2004—as another “significant condition
contributing to death but not related to” (emphasis added) the primary
and secondary causes of death, including the aortic dissection.

     Even assuming, arguendo, that decedent’s injuries and death were
caused by a rupturing aortic dissection and that such condition was
present on the relevant treatment dates, it is my view that
plaintiff’s expert failed to set forth an evidentiary basis for his or
her opinion that defendants should have diagnosed the alleged aortic
dissection on those dates (see Bendel v Rajpal, 101 AD3d 662, 663-664;
Altmann v Molead, 51 AD3d 482, 483; Holbrook v United Hosp. Medical
Center, 248 AD2d 358, 358-359). As noted above, an aortic dissection
was not “diagnosed” until March 1, 2004, which was 13 days after
decedent was admitted to the hospital. During those 13 days, decedent
underwent two spinal surgeries, received MRIs with and without
contrast of his lumber, cervical, and thoracic spine, and was under
the constant care of a neurosurgeon, yet there is no mention in the
medical records of an aortic dissection or a dissecting aortic
aneurysm during that period. Plaintiff’s expert nonetheless concludes
that a “[r]eview of all of [decedent’s] records confirms that the true
cause for the onset of [his] back pain was an aortic dissection.”

     In support of that conclusion, plaintiff’s expert focused on what
he or she characterized as a “discrepancy” between the patient history
documented on the February 13, 2004 ambulance record and the patient
history recorded by Kaleida staff on that date—a characterization that
is adopted by the majority. Specifically, plaintiff’s expert stated
that the Kaleida nurse practitioner ruled out a differential diagnosis
of aortic dissection “solely on the basis of an erroneous description
of the patient’s true history,” which resulted in a series of errors
culminating in decedent’s “premature[] discharge[] on an erroneous
diagnosis of thoracic muscle strain.” The expert’s opinion, however,
is based upon the faulty premise that decedent’s pain began only 90
minutes prior to his arrival at the emergency room, i.e., at 9:30 a.m.
on February 13, 2004. The majority similarly states that decedent’s
back pain “started at 9:30 a.m.” That statement, however, is based
upon a misreading of the ambulance record. In fact, the ambulance
record states that decedent’s pain became “severe about 9:30 [a.m.]”
(emphasis added). In the “comments” section of the ambulance record,
the paramedic further indicated that decedent’s pain “started [two]
days ago.” Thus, when read in its entirety, the ambulance record
indicates that decedent’s back pain began two days before his first
emergency room visit, i.e., on February 11, 2004, and that it
increased in intensity on the morning of February 13, 2004, thereby
prompting that hospital visit. Indeed, plaintiff’s own bills of
particulars unequivocally state that decedent’s pain began on February
11, 2004.
                                 -14-                          914
                                                         CA 12-00577

     The nurse practitioner testified at her deposition that, in her
experience, patients who “have had a dissecting aneurysm, do not have
pain for two days prior to ending up in an emergency room.” That
testimony was undisputed. In any event, contrary to the assertion of
the majority, the nurse practitioner did not rule out an aortic
dissection solely on the basis of the reported duration of decedent’s
pain. Rather, the nurse practitioner testified at her deposition that
she excluded an abdominal aortic aneurysm based upon her physical
examination of decedent, decedent’s description of his pain, and the
fact that decedent’s pain was relieved by the course of treatment that
she prescribed. Decedent reported that the pain began when he turned
suddenly, and he described the pain as a sharp, constant pain that
increased with movement and radiated into his legs, which the nurse
practitioner described as “very spasmatic sounding in nature.” By
contrast, the nurse practitioner testified that patients suffering
from a dissecting aneurysm describe the sensation as a “ripping-like
pain and not a sharp, sudden onset [of] pain,” and that those patients
generally have pain in other areas of their body. Upon physical
examination, decedent was in no acute distress and exhibited no
neurological or cardiovascular symptoms. Significantly, decedent’s
abdominal examination was normal with no tenderness or abnormal
vascular sounds, including within the aortic vessel. Further,
decedent responded well to non-narcotic pain medication, which the
nurse practitioner testified was inconsistent with an aortic
dissection. Finally, the nurse practitioner testified that decedent’s
thoracic spine X ray supported her diagnosis. Significantly,
plaintiff’s expert did not dispute any of that information.

     With respect to the treatment rendered to decedent on February
15, 2004, plaintiff’s expert concludes that Kaleida deviated from the
relevant standard of care in failing to order a CT scan with contrast
based upon decedent’s “constellation of signs and symptoms.” Notably,
plaintiff’s expert does not opine that the alleged “constellation” of
symptoms warranting a CT scan with contrast were signs of an aortic
dissection or that a CT scan with contrast performed on that date
would have revealed such a dissection. In any event, many of the
“signs and symptoms” plaintiff’s expert relies upon are simply not
supported by the record. For example, the expert averred that
decedent had “no history of back trauma” when, in fact, decedent
reported that his back pain began when he turned suddenly on February
11, 2004. Also, contrary to the expert’s assertion that decedent’s
“pain was not relieved by prescription pain medications over the
preceding [48] hours,” the record establishes that decedent’s pain
improved significantly following the administration of pain medication
on February 13, 2004 and February 15, 2004. Finally, plaintiff’s
expert concluded that a CT scan with contrast was indicated because
the non-contrast scan “had ruled-out obstructive kidney stones.” Dr.
James’s expert, however, opined that the CT scan findings suggested a
“probable kidney stone” and noted that the report referenced an
enlarged left kidney, which is consistent with a recent obstruction.
Plaintiff also failed to refute that opinion.

     Finally, with respect to the treatment rendered at Mercy/CHS on
February 16, 2004, plaintiff’s expert opined that “from a
                                 -15-                          914
                                                         CA 12-00577

comprehensive review of all of the other records of [decedent]’s
treatment, it is clear that, at the time of his [Mercy/CHS] visit,
[decedent] was experiencing a thoracic and abdominal aortic
dissection. At the two (2) preceding ER visits, he had complained of
intractable severe low back pain which is entirely consistent with his
severe dissection. But, the [Mercy/CHS] record is devoid of
documented physical findings suggestive of this condition. It is
inconceivable that this evolving condition did not continue to cause
detectable problems for [decedent] on February 16, 2004. When [the
Mercy/CHS defendants] made no findings consistent with this problem,
and, when all of them remained oblivious to this underlying condition,
these facts more likely support a conclusion that the examinations
were not properly performed, than that the condition had become
asymptomatic.”

     As discussed in detail with respect to the Kaleida defendants,
plaintiff’s expert provides no basis for the hindsight determination
that decedent was in fact suffering from an aortic dissection on
February 16, 2004. Further, plaintiff’s expert faults Mercy/CHS for
failing to document findings consistent with that condition, i.e.,
“intractable” back pain, when there is no evidence that decedent had
or complained of back pain on that date. Instead, the records reflect
that his primary complaint was urinary retention and pain or
discomfort in his suprapubic region. Unlike his visits to Kaleida on
February 13 and 15, 2004, decedent went to Mercy/CHS as a walk-in
patient, upon the direction of his treating urologist, for the purpose
of having a Foley catheter inserted in order to relieve his complaints
of urinary retention. As noted, at the time of his Mercy/CHS visit,
decedent was hemodynamically stable, but for the fact that his blood
pressure was elevated before he was catheterized. After the catheter
was inserted and 1,000 cubic centimeters of urine were released,
decedent’s blood pressure returned to normal and his condition
improved. Following a consultation with decedent’s urologist,
Mercy/CHS discharged decedent with the catheter in place and
instructed him to follow up with the urologist the next day. Decedent
did not do so. Thus, contrary to the opinion of plaintiff’s expert,
there was nothing to suggest that decedent was suffering from an
aortic dissection at that time.

     In sum, as the court found and plaintiff concedes, defendants
established as a matter of law that they did not deviate from the
standard of emergency medical care on February 13, 15, or 16, 2004 and
that, in any event, any alleged deviations did not cause decedent’s
subsequent injuries and his death more than two weeks later. In
opposition to the motions, plaintiff submitted the affidavit of an
expert in which the expert made conclusory assertions of negligence
and proximate cause, which were either unsupported by or contradicted
by the record, and thus failed to raise a triable issue of fact (see
Holbrook, 248 AD2d at 358-359; see also Mignoli v Oyugi, 82 AD3d 443,
444; Altmann, 51 AD3d at 483; Hernandez-Vega v Zwanger-Pesiri
Radiology Group, 39 AD3d 710, 711-712). I would therefore reverse the
order, grant defendants’ respective motions for summary judgment, and
dismiss the amended complaint and all cross claims against them (see
                                 -16-                     914
                                                    CA 12-00577

Moran v Muscarella, 87 AD3d 1299, 1300).




Entered:   June 7, 2013                    Frances E. Cafarell
                                           Clerk of the Court
