Tica v Metz 2024 NY Slip Op 31497(U) April 26, 2024 Supreme Court, Kings County Docket Number: Index No. 524414/2018 Judge: Genine D. Edwards 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 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS
SANDRA TICA, as the Administrator of the Estate of Index No.: 524414/2018 MARIE TREBILCOCK, deceased. DECISION AND ORDER Plaintiff, - against - Motion Seq. 2
MICHAEL METZ, D.O., SAMUEL AYALA, M.D., and NEW YORK PRESBYTERIAN BROOKLYN METHODIST HOSPITAL,
Defendants.
The following e-filed papers read herein: NYSCEF Nos.:
Notices of Motion, Affirmations, and Exhibits ....................................... .49-73
In this action to recover damages for medical malpractice, lack of informed consent, and
negligent hiring, defendants Michael Metz, D.O. ("Dr. Metz"), Samuel Ayala, M.D. ("Dr. Ayala"),
New York Presbyterian Brooklyn Methodist Hospital ("New York Presbyterian") moved for
summary judgment seeking to dismiss the complaint pursuant to CPLR §3212. 1
FACTS
Marie Trebilcock ("Decedent"), a 68-year-old woman at the time of the allegations, had a
medical history of a prior left frontal stroke, steno sis of her right internal carotid artery, coronary
artery disease with one stent, and transient ischemic attack (''TIA")/cerebrovascular accident
("CVA" or stroke). Decedent was in a car accident in 1999, as a result of which she suffered a
traumatic brain injury and underwent surgery to have a rod put in her leg and experienced vision
issues. Decedent also smoked cigarettes for over 40 years.
1 Plaintiffs opposition was filed untimely and thus not considered in deciding this motion.
[* 1] 1 of 6 [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
On October 30, 2016, the decedent was at a family wedding in Brooklyn, where she was
drinking and dancing and began to feel dizzy and weak. An ambulance was called, and decedent
arrived at New York Presbyterian's emergency department at 10:02 pm. The ambulance call sheet
noted the family indicated decedent was unresponsive but was alert by the time they arrived. Her
Stroke Scale was negative, and the ambulance team noted her neurovascularly intact across all
extremities, her vitals were within normal limits apart from her elevated blood pressure at 142/84.
Decedent was then triaged by Nurse Sybico. Her blood pressure was 153/92 and she was afebrile.
Decedent described a 9/ l O head pain, with a duration of less than one day and her triage diagnosis
was dizziness and headache.
Following triage, decedent was assigned to Ors. Ayala and Metz, with Dr. Metz taking a
history and performing a physical of decedent. Dr. Metz noted decedent's past medical history of
coronary artery disease with one stent and TIA/CVA and that decedent was coming in for an
episode of dizziness and right sided headache that occurred while at a wedding after drinking three
drinks and dancing. Decedent admitted to drinking three drinks and denied loss of consciousness,
chest pain, fever, chills, sweats, nausea/vomiting/diarrhea/chills, abdominal pains, urinary
complaints, numbness, tingling, weakness, visual problems, neurologic issues, or musculoskeletal
issues. Decedent did complain of lightheadedness. Dr. Metz then performed a neurological
examination and a CT scan of decedent's head. Dr. Metz documented a differential diagnosis
which included dizziness, dehydration, urinary tract infection, and pneumonia. Other vitals were
within normal limits and the CT scan revealed no intracranial hemorrhages, extra axial fluid
collections or evidence of an intra-axial mass lesion. At I :09 am, decedent's blood pressure level
remained at 153/92.
Decedent was subsequently given fluids to address hydration and Reglan for her headache,
[* 2] 2 of 6 [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF-DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
along with Benadryl and Toradol. At 2:18 am on October 31, 2016, decedent's blood pressure
increased to 193/131, and thereafter 219/136 at 5:55 am. Dr. Metz was notified of the increase in
blood pressure, and he ordered 10 mg of Amlodipine, which was administered at 6:20 am. At 7:53
am, decedent's blood pressure was recorded at 201/105 and she was subsequently discharged home
at 7:58 am with instructions to follow up with her primary care provider within 3-5 days, or to
return to the emergency department if her symptoms worsened. Decedent was picked up by her
son and granddaughter and they drove out to Long Island to drop granddaughter off at school and
then home to Orange County.
When decedent arrived in Orange County, she had difficulty standing while trying to get
out of the car. Decedent was later brought to Orange Regional Medical Center ("ORMC") around
2:39 pm, approximately 6.5 hours after leaving New York Presbyterian. When she presented to
the ORMC, decedent's blood pressure was 167/78 and the plan at ORMC was to admit the patient.
Decedent did not receive tissue plasminogen activator because it was believed her symptoms had
· begun two days prior. A CT scan of the brain was performed at 4:32 pm, the history provided for
the study was "bilateral" leg weakness. The scan indicated that there was no evidence of acute
infarct, mass lesion or hemorrhage, and if clinical symptoms persisted a further evaluation with
brain MRI was recommended. At 3:02 pm, decedent's blood pressure was 210/91, and at 4:22 pm
it was 202/92. At 5:01 her blood pressure was 154/117. Within the next hour, at 6:02 pm, and
despite ongoing medicinal pressure control, the blood pressure rose again to 212/91, followed by
another drop to 162/72 at 6:46 pm. On November 1, 2016, a second CT scan of the brain was
performed at or about l 0:20 am, the indication being worsening speech, left sided weakness and
possible CV A. In comparison to the first CT scan performed the day before, this scan now
demonstrated a "new" area of hypodensity within the right parietal lobe suspicious for "evolving
[* 3] 3 of 6 [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
acute infarction." Later that day, at 11 :27 a.m. a bilateral Doppler of the carotids was performed
given suspicion of a CV A. The findings were significant for a greater than 50% luminol stenosis
within the proximal right internal carotid artery. Decedent was brought to ICU for ongoing blood
pressure control. On November 2, 2016, a CT angiogram was performed, the impression being
occlusion of the right internal carotid artery and large perfusion defect in the right MCA
distribution. Decedent was discharged on November 8, 2016 to Somers Manor Rehabilitation.
Decedent was subsequently sent to Northern Westchester hospital and then to Salem Hills Nursing
and Rehabilitation Center until it became a COVID facility. She was transferred to Waterview
Hills Rehabilitation and Nursing Home where she was diagnosed with small cell lung cancer.
Free access — add to your briefcase to read the full text and ask questions with AI
Tica v Metz 2024 NY Slip Op 31497(U) April 26, 2024 Supreme Court, Kings County Docket Number: Index No. 524414/2018 Judge: Genine D. Edwards 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 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS
SANDRA TICA, as the Administrator of the Estate of Index No.: 524414/2018 MARIE TREBILCOCK, deceased. DECISION AND ORDER Plaintiff, - against - Motion Seq. 2
MICHAEL METZ, D.O., SAMUEL AYALA, M.D., and NEW YORK PRESBYTERIAN BROOKLYN METHODIST HOSPITAL,
Defendants.
The following e-filed papers read herein: NYSCEF Nos.:
Notices of Motion, Affirmations, and Exhibits ....................................... .49-73
In this action to recover damages for medical malpractice, lack of informed consent, and
negligent hiring, defendants Michael Metz, D.O. ("Dr. Metz"), Samuel Ayala, M.D. ("Dr. Ayala"),
New York Presbyterian Brooklyn Methodist Hospital ("New York Presbyterian") moved for
summary judgment seeking to dismiss the complaint pursuant to CPLR §3212. 1
FACTS
Marie Trebilcock ("Decedent"), a 68-year-old woman at the time of the allegations, had a
medical history of a prior left frontal stroke, steno sis of her right internal carotid artery, coronary
artery disease with one stent, and transient ischemic attack (''TIA")/cerebrovascular accident
("CVA" or stroke). Decedent was in a car accident in 1999, as a result of which she suffered a
traumatic brain injury and underwent surgery to have a rod put in her leg and experienced vision
issues. Decedent also smoked cigarettes for over 40 years.
1 Plaintiffs opposition was filed untimely and thus not considered in deciding this motion.
[* 1] 1 of 6 [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
On October 30, 2016, the decedent was at a family wedding in Brooklyn, where she was
drinking and dancing and began to feel dizzy and weak. An ambulance was called, and decedent
arrived at New York Presbyterian's emergency department at 10:02 pm. The ambulance call sheet
noted the family indicated decedent was unresponsive but was alert by the time they arrived. Her
Stroke Scale was negative, and the ambulance team noted her neurovascularly intact across all
extremities, her vitals were within normal limits apart from her elevated blood pressure at 142/84.
Decedent was then triaged by Nurse Sybico. Her blood pressure was 153/92 and she was afebrile.
Decedent described a 9/ l O head pain, with a duration of less than one day and her triage diagnosis
was dizziness and headache.
Following triage, decedent was assigned to Ors. Ayala and Metz, with Dr. Metz taking a
history and performing a physical of decedent. Dr. Metz noted decedent's past medical history of
coronary artery disease with one stent and TIA/CVA and that decedent was coming in for an
episode of dizziness and right sided headache that occurred while at a wedding after drinking three
drinks and dancing. Decedent admitted to drinking three drinks and denied loss of consciousness,
chest pain, fever, chills, sweats, nausea/vomiting/diarrhea/chills, abdominal pains, urinary
complaints, numbness, tingling, weakness, visual problems, neurologic issues, or musculoskeletal
issues. Decedent did complain of lightheadedness. Dr. Metz then performed a neurological
examination and a CT scan of decedent's head. Dr. Metz documented a differential diagnosis
which included dizziness, dehydration, urinary tract infection, and pneumonia. Other vitals were
within normal limits and the CT scan revealed no intracranial hemorrhages, extra axial fluid
collections or evidence of an intra-axial mass lesion. At I :09 am, decedent's blood pressure level
remained at 153/92.
Decedent was subsequently given fluids to address hydration and Reglan for her headache,
[* 2] 2 of 6 [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF-DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
along with Benadryl and Toradol. At 2:18 am on October 31, 2016, decedent's blood pressure
increased to 193/131, and thereafter 219/136 at 5:55 am. Dr. Metz was notified of the increase in
blood pressure, and he ordered 10 mg of Amlodipine, which was administered at 6:20 am. At 7:53
am, decedent's blood pressure was recorded at 201/105 and she was subsequently discharged home
at 7:58 am with instructions to follow up with her primary care provider within 3-5 days, or to
return to the emergency department if her symptoms worsened. Decedent was picked up by her
son and granddaughter and they drove out to Long Island to drop granddaughter off at school and
then home to Orange County.
When decedent arrived in Orange County, she had difficulty standing while trying to get
out of the car. Decedent was later brought to Orange Regional Medical Center ("ORMC") around
2:39 pm, approximately 6.5 hours after leaving New York Presbyterian. When she presented to
the ORMC, decedent's blood pressure was 167/78 and the plan at ORMC was to admit the patient.
Decedent did not receive tissue plasminogen activator because it was believed her symptoms had
· begun two days prior. A CT scan of the brain was performed at 4:32 pm, the history provided for
the study was "bilateral" leg weakness. The scan indicated that there was no evidence of acute
infarct, mass lesion or hemorrhage, and if clinical symptoms persisted a further evaluation with
brain MRI was recommended. At 3:02 pm, decedent's blood pressure was 210/91, and at 4:22 pm
it was 202/92. At 5:01 her blood pressure was 154/117. Within the next hour, at 6:02 pm, and
despite ongoing medicinal pressure control, the blood pressure rose again to 212/91, followed by
another drop to 162/72 at 6:46 pm. On November 1, 2016, a second CT scan of the brain was
performed at or about l 0:20 am, the indication being worsening speech, left sided weakness and
possible CV A. In comparison to the first CT scan performed the day before, this scan now
demonstrated a "new" area of hypodensity within the right parietal lobe suspicious for "evolving
[* 3] 3 of 6 [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
acute infarction." Later that day, at 11 :27 a.m. a bilateral Doppler of the carotids was performed
given suspicion of a CV A. The findings were significant for a greater than 50% luminol stenosis
within the proximal right internal carotid artery. Decedent was brought to ICU for ongoing blood
pressure control. On November 2, 2016, a CT angiogram was performed, the impression being
occlusion of the right internal carotid artery and large perfusion defect in the right MCA
distribution. Decedent was discharged on November 8, 2016 to Somers Manor Rehabilitation.
Decedent was subsequently sent to Northern Westchester hospital and then to Salem Hills Nursing
and Rehabilitation Center until it became a COVID facility. She was transferred to Waterview
Hills Rehabilitation and Nursing Home where she was diagnosed with small cell lung cancer.
Decedent's family chose to pursue palliative care and decedent resided at Rosary Hill Home until
she passed away on June 5_, 2022.
The elements of a medical malpractice claim are a deviation or departure from accepted
practice and evidence that such a departure was approximate cause of injury or damage. Mc Hale
v. Sweet, 217 A.D.3d 666, 190 N.Y.S.3d 438 (2d Dept. 2023). A defendant's negligence is the
proximate cause when it is a substantial factor in the events that produce the injury. Templeton v.
Papathomasz, 208 A.D.3d 1268, 175 N.Y.S.3d 544 (2d Dept. 2022).
Summary judgment is warranted where the movants can demonstrate the absence of any
relevant material issue of fact, and therefore are entitled to judgment as a matter of law. Alvarez v.
Prospect Hosp., 68 N.Y.2d 320,324 (1986); see Winegradv. New York Univ. Med Ctr., 64 N.Y.2d
851 (1985). "When moving for summary judgment, a defendant ... must establish the absence of
any departure from good and accepted medical practice or that. .. plaintiff was not injured thereby."
Barnaman v. Bishop Hucles Episcopal Nursing Home, 213 A.D.3d 896, 184 N.Y.S.3d 800 (2d
4 of 6 [* 4] [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
Dept. 2023). To sustain the burden, a defendant "must address and rebut any specific allegations
of malpractice set forth in plaintiff's bill of particulars." D.S. v. Poliseno, 189 A.D.3d 1102, 133
N.Y.S.3d 831 (2d Dept. 2020).
ANALYSIS
Defendants argued that they are entitled to summary judgment because decedent was
appropriately treated and there were no departures from the standard of care as to the care and
treatment rendered. Defendants also contended that none of decedent's alleged injuries were
proximately caused by anything they did or allegedly failed to do. In support, defendants submitted
the affirmations of Ors. Silberman and Levine and deposition testimony, inter alia.
Drs. Silberman and Levine collectively opined that based upon their review of the medical
records decedent received care and treatment in accordance with the standards of good and
accepted medical practice. However, both physicians acknowledged that Dr. Metz never included
stroke in his differential diagnosis, but speculated he must have considered it given his order for a
CT scan of decedent's head. Decedent's blood pressure levels continued to rise from her initial
arrival at New York Presbyterian's emergency department at l 0:02 pm until at least 6:20 am, when
she was given the anti-hypertensive medication Amlodipine, a period of at least eight hours.
Decedent's blood pressure levels decreased from 219/136 to 201/105 over a period of less than
two hours, and she was discharged from the hospital five minutes after her first reading of
decreased blood pressure. This blood pressure reading was higher than her blood pressure reading
when she was admitted. Dr. Ayala testified that in his experience with Amlodipine, its peak onset
is five to six hours even though one could start seeing effects within an hour or two. Dr. Ayala also
indicated that a profound lowering of blood pressure too quickly could be detrimental.
Based on Dr. Ayala's testimony, absent admitting decedent for further evaluation,
[* 5] 5 of 6 [FILED: KINGS COUNTY CLERK 04/26/2024 04:51 P~ INDEX NO. 524414/2018 NYSCEF DOC. NO. 91 RECEIVED NYSCEF: 04/26/2024
defendants could not be aware of decedent's response to the medication at its peak onset and would
not be aware of whether decedent's blood pressure would continue to drop to detrimental levels.
Additionally, the experts extrapolate findings from subsequent treating medical records
from ORMC ignoring the fact that defendants were not, and could not, be aware of what the
patient's blood pressure readings were when she presented to the ORMC. Thus, among other
issues, triable issues of fact exist regarding the failure to call a stroke code and urgent neurological
consultation, as well as the failure to admit decedent for further evaluation and treatment based on
her blood pressure levels.
Accordingly, it is
ORDERED that defendants' motion for summary judgment is in all respects denied, and it
is further
ORDERED that plaintiffs counsel is directed to electronically serve a copy of this
Decision/Order with notice of entry on defendants' respective counsel and to electronically file an
affidavit of service with the Kings County Clerk, and it is further
ORDERED that the parties shall appear for an Alternative Dispute Resolution conference
on May 28, 2024, at 2 :30PM.
The foregoing constitutes the Decision and Order of this Court.
APR 2 6 2024
6 of 6 [* 6]