Imbierowicz v. A.O. Fox Memorial Hospital

43 A.D.3d 503, 841 N.Y.S.2d 168
CourtAppellate Division of the Supreme Court of the State of New York
DecidedAugust 2, 2007
StatusPublished
Cited by11 cases

This text of 43 A.D.3d 503 (Imbierowicz v. A.O. Fox Memorial Hospital) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Imbierowicz v. A.O. Fox Memorial Hospital, 43 A.D.3d 503, 841 N.Y.S.2d 168 (N.Y. Ct. App. 2007).

Opinion

Rose, J.

Appeal from a judgment of the Supreme Court (Spargo, J.), entered February 8, 2006 in Albany County, upon a verdict rendered in favor of plaintiff.

After six days spent in two hospitals, decedent died of cardiac arrest. The autopsy revealed that his ascending aorta had dissected and leaked blood into his pericardium, ultimately compressing his heart until it stopped. Plaintiff, decedent’s wife, commenced this medical malpractice action seeking to recover damages for defendants’ failure to diagnose his fatal condition. After a four-week trial, the jury exonerated five defendants, but found four others negligent. It apportioned 20% of the fault to defendant A.O. Fox Memorial Hospital (hereinafter Fox), where decedent was initially treated, 15% to defendant Benjamin Friedell, a family practice physician employed by Fox, 45% to defendant Capital Cardiology Associates (hereinafter CCA), and 20% to defendant John Gould, a CCA cardiologist who became involved after decedent’s transfer to defendant Albany Medical [505]*505Center (hereinafter AMC). In addition to awarding $100,000 to each of decedent’s two children, the jury awarded plaintiff a total of $1,050,000 in past and future pecuniary damages. Supreme Court later denied defendants’ motions to set aside the verdict.

Among their contentions on appeal, defendants argue that the jury’s findings of malpractice are not supported by legally sufficient evidence. Only with respect to the separate liability of Fox, however, can we say “ ‘that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial’ ” (Cramer v Benedictine Hosp., 301 AD2d 924, 928-929 [2003], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]).

Plaintiff’s expert cardiologist testified that while aortic dissection is uncommon, it is imminently life-threatening and should be promptly ruled out through further testing where, as here, the patient presents with all of the symptoms typical of that condition. He opined that, given the information available to Friedell and Gould, their failure to consider this diagnosis was a deviation from the standard of care. Despite defendants’ argument to the contrary, plaintiff’s expert established a uniform minimum threshold of care, and it was not necessary for plaintiff to prove the standard of care in the specific locality {see Hoagland v Kamp, 155 AD2d 148, 150 [1990]). In light of this evidence, we conclude that a valid line of reasoning exists to support the jury’s conclusion that Friedell and Gould deviated from the standard of care by failing to order an appropriate test to rule out aortic dissection. In addition, the separate liability of CCA is supported by evidence that it failed to have one of its cardiologists review the preliminary results of a transthoracic echocardiogram (hereinafter TTE) that was performed and noted in decedent’s chart on June 9, 1999, and failed to provide continuity of care by not assuring that Gould was informed on June 9 that the TTE had revealed a pericardial effusion.

We also find the evidence sufficient to support the jury’s finding that the negligence of Friedell and Gould was a proximate cause of decedent’s death. Plaintiffs experts testified that a CT scan or a transesophageal echocardiogram successfully detects aortic dissection in 98% of cases and prompt surgical repair would have provided an 80% chance of survival. Gould nonetheless contends that plaintiff did not show that decedent would have had “an appreciable chance of avoiding the loss suffered” in the approximately six hours between when he examined [506]*506decedent on the morning of June 10, 1999 and when decedent suffered cardiac arrest (Brown v State of New York, 192 AD2d 936, 938 [1993], lv denied 82 NY2d 654 [1993]). Although plaintiffs experts did not testify as to the time required to perform a CT scan at AMC, one of Gould’s experts testified that it could be done in less than four hours at most tertiary care facilities. No one, including Gould, testified that more time would have been required at AMC. In addition, plaintiffs expert thoracic surgeon testified that once surgery is found to be necessary, it takes 30 to 60 minutes to set up an operating room at his institution. This evidence, when viewed in a light most favorable to plaintiff (see e.g. King v Jordan, 265 AD2d 619, 620 [1999]; Karney v Arnot-Ogden Mem. Hosp., 251 AD2d 780, 782 [1998], lv dismissed 92 NY2d 942 [1998]), is sufficient to permit a reasonable person to conclude that it was more probable than not that if Gould had ordered an appropriate test to be done right away, it could have been conducted, an accurate diagnosis made and corrective surgery begun before decedent suffered cardiac arrest (see Turcsik v Guthrie Clinic, Ltd., 12 AD3d 883, 887 [2004]; Slaybough v Littauer Hosp., 202 AD2d 773, 775-776 [1994], lv dismissed and denied 83 NY2d 962 [1994]; O’Connell v Albany Med. Ctr. Hosp., 101 AD2d 637, 638 [1984]).

Further, we are not persuaded that the jury’s findings of negligence as to these defendants were against the weight of the evidence. Contrary to CCA’s argument, plaintiff’s failure to prove exactly when the TTE results became available on June 9, 1999 did not unduly preponderate against the jury’s finding of a lack of continuity of care sometime that day. A note written in decedent’s chart by AMC’s TTE technician indicated that the results, which advised of a pericardial effusion, became available sometime after 3:45 p.m. and before later chart entries for June 9. Since none of CCA’s cardiologists covering AMC was aware of the results on June 9 and the gap in treatment was not adequately explained, an inference of a lack of continuity of care reasonably could be drawn. We also cannot agree with Gould’s and Friedell’s claim that the mere fact that none of the many physicians who saw decedent considered aortic dissection establishes a lesser standard of care than that testified to by plaintiffs expert. Absent compelling proof of a different standard, this fact is equally capable of establishing that all were negligent in treating decedent. Accordingly, we cannot say that the jury’s verdict as to these defendants is based upon an unfair interpretation of the evidence (see e.g. Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Postlethwaite v United Health Servs. Hosps., 5 AD3d 892, 894 [2004]).

As for Fox, however, we agree that the evidence does not sup[507]*507port the jury’s imposition of 20% liability separate from Friedell. The jury properly found Fox vicariously liable by virtue of Friedell’s negligence (see e.g. Monostori v Murphy, 34 AD3d 882, 883 [2006]). A hospital also can be held directly liable for breach of the duties which it, as an institution, owes to its patients {see e.g. Malaspina v Victory Mem. Hosp., 29 AD3d 646, 647 [2006]; see also IB NY PJI 2:151, at 852 [2007]). Here, no hospital staff other than Friedell was shown to have been negligent, and Fox’s only apparent role in diagnosing decedent’s condition was to provide a treating physician. Thus, only vicarious liability of Fox was proven.

We also find merit in defendants’ challenge to Supreme Court’s jury charge based upon Noseworthy v City of New York (298 NY 76 [1948]). While the court tried to circumscribe the scope of the reduced burden of proof to be applied under Noseworthy,

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Cite This Page — Counsel Stack

Bluebook (online)
43 A.D.3d 503, 841 N.Y.S.2d 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/imbierowicz-v-ao-fox-memorial-hospital-nyappdiv-2007.