Lodato v. New York City Health & Hosps. Corp.

2024 NY Slip Op 30907(U)

• Court: New York Supreme Court, Kings County
• Decided: March 19, 2024
• Status: Unpublished

Opinion

Lodato v New York City Health & Hosps. Corp. 2024 NY Slip Op 30907(U) March 19, 2024 Supreme Court, Kings County Docket Number: Index No. 528154/2019 Judge: Consuelo Mallafre Melendez Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 03/19/2024 11:30 AM INDEX NO. 528154/2019 NYSCEF DOC. NO. 112 RECEIVED NYSCEF: 03/19/2024

At an IAS Term, Part 7 of the Supreme Court of the State of NY, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 19th day of March 2024.

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS --------------------------------------------------------------------------X VITO LODATO as the Administrator of the Estate of MARCO DECISION & ORDER LODATO, deceased, Index No. 528154/2019 Plaintiff, Mo. Seq. 2 & 3

-against-

NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, NYU LANGONE HOSPITALS, NYU LANGONE HEALTH SYSTEM and NYU LANGONE HOSPITAL-BROOKLYN,

Defendants. --------------------------------------------------------------------------X HON. CONSUELO MALLAFRE MELENDEZ, J.S.C.

Recitation, as required by CPLR §2219 [a], of the papers considered in the review: NYSCEF #s: Seq. 2: 62 – 64, 65 – 86, 106, 107, 108 – 109 Seq. 3: 87 – 88, 89 – 102

Defendant, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, moves

this Court for an order pursuant to CPLR § 3212 granting summary judgment and directing entry

of judgment to NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (sequence 2).

Plaintiff submitted opposition to this motion.

Defendants, NYU LANGONE HOSPITALS and NYU LANGONE HOSPITALS s/h/a

“NYU LANGONE HOSPITAL-BROOKLYN” and NYU LANGONE HEALTH SYSTEM

(hereinafter NYU Defendants), move this Court for an order pursuant to CPLR § 3212 granting

summary judgment and dismissing the plaintiff’s claims in their entirety against NYU Defendants

and directing entry of judgment to NYU Defendants (sequence 3). This motion is unopposed.

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Accordingly, the motion on behalf of NYU Defendants is granted without opposition, and all

claims against NYU Defendants are dismissed.

This case involves treatment of Mr. Lodato at South Brooklyn Health, formerly known as

Coney Island Hospital (hereinafter “NYCHHC”) during his hospitalization from January 28, 2019

through to his discharge on February 7, 2019. Mr. Lodato was admitted to NYU Langone Hospital

Brooklyn on February 8, 2024 less than 24 hours after he was discharged from Coney Island

Hospital the day prior, where he was diagnosed with a gastrointestinal hemorrhage. At the time of

his presentation to NYU, Mr. Lodato’s bleeding could not be controlled and he passed away the

same day at that hospital. Plaintiff claims that Mr. Lodato’s personal injuries and death were due

to NYCHHC’s negligent and improper treatment of the patient’s duodenal ulcer, NYCHHC’s

failure to appreciate objective signs of a gastrointestinal bleed, and a premature discharge of the

patient from their facility. Plaintiff also alleges NYCHHC: (1) failed to obtain surgical and

interventional radiology consults following the EGD on January 31, 2019 to monitor a re-bleed;

(2) failed to perform serial CBC’s on Mr. Lodato every 12 hours prior to discharge to monitor

gastrointestinal bleeding and to diagnose a duodenal ulcer; and (3) failed to perform a repeat upper

endoscopy to ensure the duodenal ulcer was appropriately treated.

“‘In order to establish the liability of a physician for medical malpractice, a plaintiff must

prove that the physician deviated or departed from accepted community standards of practice, and

that such departure was a proximate cause of the plaintiff's injuries [internal citations omitted].’”

Hutchinson v. New York City Health and Hosps. Corp., 172 AD3d 1037, 1039 [2d Dept. 2019]

citing Stukas v. Streiter, 83 AD3d 18, 23 [2d Dept. 2011]. “Thus, in moving for summary judgment,

a physician defendant must establish, prima facie, ‘either that there was no departure or that any

departure was not a proximate cause of the plaintiff's injuries.’” Hutchinson, 132 AD3d at 1039,

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citing Lesniak v. Stockholm Obstetrics & Gynecological Servs., P.C., 132 AD3d 959, 960 [2d Dept.

2015]. “Expert testimony is necessary to prove a deviation from accepted standards of medical

care and to establish proximate cause [internal citations omitted].” Navarro v. Ortiz, 203 AD3d

834, 836 [2d Dept 2022]. “‘When experts offer conflicting opinions, a credibility question is

presented requiring a jury's resolution.’” Stewart v. North Shore University Hospital at Syosset,

204 AD3d 858, 860 [2d Dept. 2022] citing Russell v. Garafalo, 189 A.D.3d 1100, 1102, [2d Dept.

2020] [internal citations omitted]. However, “expert opinions that are conclusory, speculative, or

unsupported by the record are insufficient to raise a triable issue of fact [internal citations

omitted].” Wagner v. Parker, 172 AD3d 954, 966 [2d Dept. 2019].

Defendant NYCHHC’s expert, Arnon Lambroza, M.D., a physician board-certified in

internal medicine and gastroenterology, established that they are qualified to opine as to the care

and treatment rendered to the patient at South Brooklyn Health, formerly known as Coney Island

Hospital. Plaintiff’s expert a physician board-certified in internal medicine and gastroenterology,

established that they are qualified to opine as to the care and treatment rendered to the patient by

defendants.

Defendant NYCHHC’s expert opines defendant’s plan to monitor the patient’s blood counts

every 12 hours and to transfuse, if necessary, in order to keep hemoglobin levels above 8.0 and the

platelets above 50,000; avoid antiplatelets, anticoagulation, and administration of NSAID was

proper and appropriate to ensure there was no further bleeding. The expert opines that monitoring

the blood levels for a possible bleed was the standard of care. Further, the expert opines the doctors

and staff at Coney Island Hospital monitored the patient as they recorded the patient’s hemoglobin

and hematocrit levels as stable, and their care plan was to continue current management.

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Dr. Lambroza also opines Mr. Lodato’s low hemoglobin and hematocrit levels on discharge

from Coney Island Hospital on February 7, 2019 were stable for him as Mr. Lodato’s baseline

hemoglobin and hematocrit levels were well below the reference ranges as noted in the records

from NYU-Brooklyn from December 2013 to May 2018. Moreover, Dr. Lambroza notes the

patient’s blood levels were tested on February 1, 2, 3, 4, 5, and 6, 2019 to monitor Mr. Lodato’s

hematocrit and hemoglobin levels and opines that the CIH physicians and staff appropriately

followed the decedent’s blood levels to ensure there was no further bleeding and the decedent’s

blood levels stabilized and were trending upwards with no sign of a further bleed for those seven

(7) days. Dr. Lambroza also opines Mr. Lodato did not have any signs or symptoms of an

abdominal perforation while in the care of Coney Island Hospital. Defendant’s expert opines based

on the foregoing it was appropriate to discharge Mr. Lodato on February 7, 2019.

Further, Dr. Lambroza opines a second look procedure was not necessary nor is it the

standard of care in this case when there is no indication a patient is still bleeding. The expert opines

a repeat upper endoscopy to ensure that the therapeutic approach employed (epinephrine injection,

hemostatic clipping and cautery) effectively treated the duodenal ulcer prior to discharging Mr.

Lodato is not the standard of care when the first EGD identified the source of the GI bleed, there

was no active bleeding, and no fresh blood was found. Dr. Lambroza opines the patient had no

indication of continued bleeding as there was no evidence of melena, no signs or symptoms

consistent with a continued bleed, stable vital signs, and Mr. Lodato’s hemoglobin and hematocrit

levels were trending upwards. Dr. Lambroza notes the EGD report identified “one non bleeding

cratered duodenal ulcer in the duodenal bulb with a non-bleeding visible vessel (Forrest Class IIA

ulcer).” Further, the expert opines based on the first EGD there were no other sources of upper GI

bleeding. Therefore, Dr. Lambroza opines a second look procedure was inapplicable here.

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Based on the findings noted above, Dr. Lambroza opines none of the treatment rendered to

Mr. Lodato at Coney Island Hospital from January 28, 2019 through February 7, 2019 was the

proximate cause or a substantial factor in Mr. Lodato’s injuries or death.

Upon the opinions set forth by NYCHHC’s expert, Dr. Lambroza and the submissions in

support of the motion, the court finds that the movants established their prima facie burden for

summary judgment.

In opposition, Plaintiff’s expert opines a “non-bleeding visible vessel (Forrest IIA) requires

endoscopic therapy as the first therapeutic course of treatment followed by consultation from

interventional radiology and surgery for further definitive treatment”. The expert further opines

“the presence of a visible vessel and its large ulcer size (30mm) suggested that there was a high

probability of a re-bleed despite the therapy employed by Drs. Wagner and Trillo.” Plaintiff’s

expert opines a surgical consult and interventional radiology consult were required for surgical

definitive treatment in this instance as a re-bleed was likely with the large ulcer that had developed.

The expert opines such failure to obtain a surgical and interventional radiology consultation for

the patient following the performance of the EGD on January 31, 2019 was negligent and improper

treatment of the duodenal ulcer and led to Mr. Lodato’s re-bleed and death on February 8, 2019.

The expert opines had the consultation taken place, the severity of Mr. Lodato’s ulcer would have

been appreciated to mitigate a re-bleed. Also, the expert opines Mr. Lodato had two ulcers and

notes the chart has multiple entries identifying two ulcers, not only one.

Plaintiff’s expert also opines the standard of care “for patients who are diagnosed with a

large duodenal ulcer with a visible vessel is to monitor the H&H (hemoglobin and hematocrit)

every 12 hours while they remain hospitalized.” The expert elaborates on this by stating that the

12-hour check of the H&H values can identify whether there is development of a gastrointestinal

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bleed as abnormally low values would indicate bleeding. Plaintiff’s expert indicates that based on

the MICU records on February 2, 2019, there was a GI recommendation to check CBC every 12

hours. (NYSCEF Doc. 77, page 57). The expert opines that despite this order, Mr. Lodato’s CBC

levels were taken every 24 hours and that this was a departure of the standard of care of the patient

who was at high risk of a re-bleed. Specifically, the Coney Island Hospital record notes the last

CBC was collected on February 6, 2019 at 9:56am and that Mr. Lodato was discharged on February

7, 2019 at 13:13. (NYSCEF Doc. 79, page 243; Doc. 77, page 2). Plaintiff’s expert states that this

record shows that the last H&H lab value was taken more than 12 hours since the last CBC

collection. The expert opines that this indicates the defendants did not comply with the GI

recommendation that CBC values be checked every 12 hours. Significantly, Plaintiff’s expert also

notes that the record indicates that on Mr. Lodato’s last day of admission on February 7, 2019, his

CBC was not tested. Thus, he opines that not checking the patient’s H&H levels before discharge

is another departure from the accepted standard of care and such failure was a factor in causing the

patient’s bleed and death.

Additionally, the expert opines Mr. Lodato’s H&H values were abnormally low when

collected after the procedure and if a CBC had been taken on February 7, 2019, the results would

have been low enough to investigate a gastrointestinal bleeding source and the diagnosis of the

duodenal ulcer would have been made prior to the ulcer’s erosion which resulted in a hemorrhage

and the patient’s death. The expert notes Mr. Lodato’s hemoglobin and hematocrit levels were

abnormal throughout Mr. Lodato’s hospitalization at Coney Island Hospital and this alone is

objective evidence of a possible bleed. Furthermore, the expert opines had an investigation into

gastrointestinal bleeding been made prior to his discharge Mr. Lodato could have undergone

endovascular angiography or surgical intervention to treat the duodenal ulcer to prevent erosion of

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the ulcer, a massive hemorrhage, and Mr. Lodato’s death. Thus, Plaintiff’s expert opines Mr.

Lodato was prematurely and negligently discharged.

Plaintiff’s expert opines defendant’s failure to repeat an upper endoscopy to ensure that the

endoscopic therapeutic treatment was effective in treating the ulcer with a visible vessel constituted

a departure from accepted standard of care and was a substantial contributing factor to Mr. Lodato’s

demise. The expert opines the signs of erosion to the muscle layer would take days to progress and

a second endoscopy would have revealed endoscopically the gravity of Mr. Lodato’s condition

before the ulcer perforated which caused the uncontrollable bleed that led to Mr. Lodato’s death.

Plaintiff’s expert supports this opinion on the basis that 24 hours after plaintiff was discharged

from Coney Island Hospital an emergent EGD at NYU found the same duodenal ulcer had eroded

down to the muscle layer of the duodenum and there was questionable full thickness defect

adjacent to a large and pulsating vessel.

Additionally, plaintiff’s expert opines that another departure was that the

gastroenterologists did not examine Mr. Lodato after February 1, 2019, and further, that he was

discharged on February 7, 2019, not being examined by them. The expert also opines that Mr.

Lodato was treated in the first instance in part because of maroon-colored stools on clinical exams

and yet, after the first EGD the patient’s stool was not evaluated for indications of blood. The

expert opines evaluation of the patient’s stool for blood would indicate a re-bleed. Based on the

foregoing, plaintiff’s expert opines NYCHHC had no objective evidence the endoscopic therapy

was effective in treating the duodenal ulcer with a visible vessel and opines that not performing a

second upper endoscopy prior to discharging Mr. Lodato was a departure from the accepted

standard of care as it would have revealed the procedure was ineffective and would have prevented

the patient’s massive hemorrhage and death.

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As discussed above, the expert opines in detail that these failures were substantial factors

in causing Mr. Lodato’s injuries and death.

Through the plaintiff’s expert’s affirmation, which is very detailed and non-speculative,

issues of fact are raised as to defendant NYCHHC’s liability and proximate cause of plaintiff’s

injuries and death. Plaintiff’s expert raises an issue of fact with his opinion that a surgical consult

and interventional radiology consult were required to comport with the standard of care as Mr.

Lodato was at high risk of a re-bleed due to the Forest IIA ulcer found, which in his opinion has a

high-risk bleeding recurrence. It is noted that defendant’s expert, Dr. Lambroza does not opine on

whether a surgical and interventional radiology consultation was the standard of care. On this

question, Defendant’s expert opines the standard of care was only to monitor the H&H levels which

in this case were found to be stable and determined the continued course of treatment was to

continue current management.

Assuming the standard of care was only to monitor the H&H levels, plaintiff’s expert

indicates there are no records to support that Mr. Lodato’s CBC levels were checked every 12

hours. Plaintiff’s expert opines the 12-hour monitoring would have identified a possible bleed and

diagnosed a duodenal ulcer prior to discharging Mr. Lodato on February 7, 2019 and would have

prevented Mr. Lodato’s death. Dr. Lambroza does not opine specifically on whether the standard

of care was to monitor the CBC levels every 12 hours or whether those levels could be tested more

infrequently. This alone would be a departure from the standard of care and therefore constitutes

an issue of fact. Further, Dr. Lambroza’s opinion that NYCHHC discharged Mr. Lodato with below

H&H levels stating that it was his baseline based on medical records from 2013 to 2018 is a

retrospective analysis as Defendant NYCHHC did not have records of CBC lab values from 2013

to 2018 to form their opinion when they discharged Mr. Lodato on February 7, 2019.

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Plaintiff’s expert also refutes Dr. Lambroza’s conclusion that the second endoscopy was

not necessary or the standard of care as they opine that a repeat upper endoscopy remains the

standard of care, and that had it been performed prior to Mr. Lodato’s discharge on February 7,

2019 the procedure would have revealed a duodenal ulcer with a visible vessel. Based on the

medical evidence in this case, Plaintiff’s expert’s opinion that the therapeutic approach treatment

given to Mr. Lodato on January 31, 2019 by Drs. Tillo and Wagner was ineffective contradicts that

submitted by Dr. Lambroza. There are also contradicting opinions as to whether the second

endoscopy is the standard of care to identify signs of erosion of the ulcer prior to it perforating the

muscle layer and causing his hemorrhage and death.

Based on the above, the court finds that Plaintiff’s expert’s opinions are well based on the

facts and raise issues of fact as to whether the moving defendant departed from the standard of

care and whether these departures were a substantial factor in causing the injuries and death to the

decedent. Considering the foregoing conflicting opinions, which are detailed and not speculative,

summary judgment is denied as all claims sounding in medical malpractice relating to defendants

NYCHHC. “In order not to be considered speculative or conclusory, expert opinions in opposition

should address specific assertions made by the movant's experts, setting forth an explanation of

the reasoning and relying on specifically cited evidence in the record”. McHale v. Sweet, 217 AD3d

666, 668 [2d Dept 2023] quoting Templeton v. Papathomas, 208 A.D.3d 1268, 1270 – 1271 [2d

Dept 2022][internal quotation marks omitted]; see also Tristan v. New York Community Hosp., 154

A.D.3d 994, 996 [2017]. “Summary judgment is not appropriate in a medical malpractice action

where, as here, the parties adduce conflicting medical expert opinions. ‘Such credibility issues can

only be resolved by a jury.’” Castillo v. Surasi, 181 AD3d 786, 788 -789 [2d Dept 2020], citing

Feinberg v. Feit, 23 A.D.3d 517, 519 [2d Dept. 2005].

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In reference to the claim of lack of informed consent, Defendant NYCHHC established

their prima facie entitlement to summary judgment through their expert’s affirmation, which is

detailed and non-speculative. However, Plaintiff’s expert does not mention the claim of informed

consent in their affirmation and it is therefore, unopposed. As such, the motion for summary

judgment on this cause of action must be granted. “Where a party fails to oppose some or all

matters advanced on a motion for summary judgment, the facts as alleged in the movant's papers

may be deemed admitted as there is, in effect, a concession that no question of fact exists.” 144

Woodbury Realty, LLC v. 10 Bethpage Rd., LLC, 178 A.D.3d 757, 761-62 [2d Dept 2019].

Accordingly, NYU Defendants’ motion for Summary Judgment is GRANTED; and

NYCHHC Defendant’s motion for Summary Judgment is GRANTED ONLY TO THE EXTENT

that Informed Consent is dismissed; and it is DENIED in all other respects.

The Clerk is directed to enter judgment in favor of NYU LANGONE HOSPITALS and

NYU LANGONE HOSPITALS s/h/a “NYU LANGONE HOSPITAL-BROOKLYN”, and NYU

LANGONE HEALTH SYSTEM.

This constitutes the decision and order of the court.

ENTER.

_______________________________ Hon. Consuelo Mallafre Melendez J.S.C.

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