Preview
(FILED: BRONX COUNTY CLERK 0270472016 04:27 PM INDEX NO. 20740/2013E
NYSCEF DOC. N 40 RECEIVED NYSCEF: 02/04/2016
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
THERESA BARONA and GILBERT BARONA,
AFFIRMATION IN
Plaintiffs, OPPOSITION
~against~ Index No. 20740/13
MAIMONIDES MEDICAL CENTER and
MONTEFIORE MEDICAL CENTER, Hon. Stanley Green
Defendants.
JONATHAN R. RATCHIK, an attorney duly admitted to practice
law before the Courts of the State of New York, affirms the truth of the following
statements under the penalty of perjury:
I Tam a partner with the firm of KRAMER & DUNLEAVY,
L.L.P., attorneys for the plaintiffs THERESA BARONA and GILBERT BARONA in the
above-captioned action.
42 Tam fully familiar with the facts and circumstances
hereinafter set forth, said knowledge having been gained through a review of the
file on this matter maintained at our offices.
3 This affirmation, the affirmation of plaintiff’s expert
colorectal surgeon and affidavit of plaintiff’s expert interventional radiologist! are
submitted in opposition to the summary judgment motion of defendant Montefiore
' The names of plaintiffs’ experts have been redacted so as not to reveal their identity. An
unredacted version of the affirmation will be submitted to the Court under separate cover.
RAMER & DUNLEAVY, LLLP 1
1 Broadway ~ Suite 2220,
few York, New York 10006
(212) 226-8662
Medical Center which seeks an order dismissing plaintiffs’ claims against it and
for such other relief as the Court may deem just and proper.
4 An order denying defendant Montefiore’s motion for
summary judgment is warranted on the grounds that material issues of fact exist
as to whether this defendant:
1 departed from good and accepted medical
standards in the community by failing to identify the cause of plaintiffs post-
operative infection, namely a perforation in her colon, an injury which the
defendant should have ruled out when plaintiff presented to the emergency
room with complaints of severe abdominal pain, fever and multiple collections
in the abdomen, and further suspected given the continued presence of free
intraperitoneal air in the upper abdomen on September 3, 2012;
ii. departed from good and accepted medical
standards in the community by treating plaintiffs infection solely with
antibiotics, which was inappropriate without a full understanding of the
infection’s pathophysiology, by failing to surgically repair the injury to her
colon, and by failing to drain the anterior collections of fluid / gas that were
present on the August 31, 2012 CT scan of plaintiff’s abdomen / pelvis; and
iii. whether such departures were substantial factors
in worsening plaintiff’s injury by prolonging her infection, causing the subject
collections of fluid / gas to grow in size, and in causing plaintiff to develop an
SRAMER & DUNLEAVY, LLP.
31 Broadway ~ Suite 2220
Mew York, NewYork 10006
(212) 226-6662
enterocutaneous fistula (a communication between the colon and the skin),
together with the pain and suffering associated therewith.
A. Defendant Montefiore departs from good and accepted medical practices
by failing to identify the cause of Theresa Barona’s sepsis and to rule out an
injury to her colon and failing to drain anterior collections of fluid and gas
that were present on the August 28, 2012 CT scan.
5. On August 28, 2012, plaintiff Theresa Barona, then
forty-nine (49) years old, underwent a bilateral salpingo-oophorectomy at
Maimonides Medical Center, a surgery that entailed the removal of her ovaries
and fallopian tubes (Def. Exhibit “I”). According to the operative note, there
were dense colonic adhesions to the posterior uterus, bilateral adnexa and
bilateral pelvic sidewalls. In order to resect a right adnexal mass, extensive lysis
of adhesions was performed with both sharp and blunt dissection. FloSeal, a
hemostatic agent used to control bleeding, was used near the right pelvic sidewall
at the site of the adnexal resection. Mrs. Barona was discharged that same day
with instructions to call her physician (Dr. Cohen) if she developed a fever or
severe pain.
6 Three (3) days later, on August 31, 2012, Mrs. Barona
presented to Montefiore Medical Center with a septic course manifested by
complaints of severe abdominal pain, a fever of 99.5 which spiked to 102.6
while she was in the emergency room, and an episode of vomiting (Def. Exhibit
“H”). She had peritoneal signs at that time, including tenderness and mild
abdominal distension, and a white blood cell count that was elevated at 12.0,
KRAMER & DUNLEAVY, LLP.
61 Broadway ~ Suite 2220
NewYork, New York 10006
(212) 226-6662
evidence of a possible infection. CT scan of the abdomen and pelvis with oral
and intravenous contrast revealed a small to moderate amount of intraperitoneal
free air and sizable anterior collections of fluid and gas. Given her symptoms
and the findings on CT scan, Mrs. Barona was admitted to the hospital and
placed on intravenous antibiotics (Zosyn).
7 In a departure from good and accepted medical
standards of care, defendant failed to perform additional imaging to determine
the source of Mrs. Barona’s sepsis and to rule out any bowel injury (Colorectal
Affidavit, § 20).? In a properly performed gynecologic surgery there should not
be any injury to the bowel. When a patient undergoes gynecologic surgery and,
three (3) days later, develops severe abdominal pain, a fever and multiple
collections in the abdomen, it is incumbent to rule out an enteric course of
infection, i.e. an injury to the small bowel or colon. This holds particularly true
when the patient, such as Mrs. Barona, undergoes a surgical procedure in which
the operative report note specifically mentions “dense adhesions to the colon”
(Colorectal Affidavit, { 20).
8 Additionally, in a further departure from good and
accepted medical standards of care, defendant failed to drain the anterior
collections of fluid / gas that were present on the August 31, 2012 CT scan (IR
Affidavit, § 20). Contrary to the position of the defendant, these collections could
? Plaintiffs’ expert colorectal surgeon was previously identified in plaintiffs’ Response to CPLR §
3101 (d) Demand, dated June 18, 2015 (Def. Exhibit “F”).
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(FILED: BRONX COUNTY CLERK 0270472016 04:27 PM INDEX NO. 20740/2013E NYSCEF DOC. N 40 RECEIVED NYSCEF: 02/04/2016 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX THERESA BARONA and GILBERT BARONA, AFFIRMATION IN Plaintiffs, OPPOSITION ~against~ Index No. 20740/13 MAIMONIDES MEDICAL CENTER and MONTEFIORE MEDICAL CENTER, Hon. Stanley Green Defendants. JONATHAN R. RATCHIK, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the truth of the following statements under the penalty of perjury: I Tam a partner with the firm of KRAMER & DUNLEAVY, L.L.P., attorneys for the plaintiffs THERESA BARONA and GILBERT BARONA in the above-captioned action. 42 Tam fully familiar with the facts and circumstances hereinafter set forth, said knowledge having been gained through a review of the file on this matter maintained at our offices. 3 This affirmation, the affirmation of plaintiff’s expert colorectal surgeon and affidavit of plaintiff’s expert interventional radiologist! are submitted in opposition to the summary judgment motion of defendant Montefiore ' The names of plaintiffs’ experts have been redacted so as not to reveal their identity. An unredacted version of the affirmation will be submitted to the Court under separate cover. RAMER & DUNLEAVY, LLLP 1 1 Broadway ~ Suite 2220, few York, New York 10006 (212) 226-8662 Medical Center which seeks an order dismissing plaintiffs’ claims against it and for such other relief as the Court may deem just and proper. 4 An order denying defendant Montefiore’s motion for summary judgment is warranted on the grounds that material issues of fact exist as to whether this defendant: 1 departed from good and accepted medical standards in the community by failing to identify the cause of plaintiffs post- operative infection, namely a perforation in her colon, an injury which the defendant should have ruled out when plaintiff presented to the emergency room with complaints of severe abdominal pain, fever and multiple collections in the abdomen, and further suspected given the continued presence of free intraperitoneal air in the upper abdomen on September 3, 2012; ii. departed from good and accepted medical standards in the community by treating plaintiffs infection solely with antibiotics, which was inappropriate without a full understanding of the infection’s pathophysiology, by failing to surgically repair the injury to her colon, and by failing to drain the anterior collections of fluid / gas that were present on the August 31, 2012 CT scan of plaintiff’s abdomen / pelvis; and iii. whether such departures were substantial factors in worsening plaintiff’s injury by prolonging her infection, causing the subject collections of fluid / gas to grow in size, and in causing plaintiff to develop an SRAMER & DUNLEAVY, LLP. 31 Broadway ~ Suite 2220 Mew York, NewYork 10006 (212) 226-6662 enterocutaneous fistula (a communication between the colon and the skin), together with the pain and suffering associated therewith. A. Defendant Montefiore departs from good and accepted medical practices by failing to identify the cause of Theresa Barona’s sepsis and to rule out an injury to her colon and failing to drain anterior collections of fluid and gas that were present on the August 28, 2012 CT scan. 5. On August 28, 2012, plaintiff Theresa Barona, then forty-nine (49) years old, underwent a bilateral salpingo-oophorectomy at Maimonides Medical Center, a surgery that entailed the removal of her ovaries and fallopian tubes (Def. Exhibit “I”). According to the operative note, there were dense colonic adhesions to the posterior uterus, bilateral adnexa and bilateral pelvic sidewalls. In order to resect a right adnexal mass, extensive lysis of adhesions was performed with both sharp and blunt dissection. FloSeal, a hemostatic agent used to control bleeding, was used near the right pelvic sidewall at the site of the adnexal resection. Mrs. Barona was discharged that same day with instructions to call her physician (Dr. Cohen) if she developed a fever or severe pain. 6 Three (3) days later, on August 31, 2012, Mrs. Barona presented to Montefiore Medical Center with a septic course manifested by complaints of severe abdominal pain, a fever of 99.5 which spiked to 102.6 while she was in the emergency room, and an episode of vomiting (Def. Exhibit “H”). She had peritoneal signs at that time, including tenderness and mild abdominal distension, and a white blood cell count that was elevated at 12.0, KRAMER & DUNLEAVY, LLP. 61 Broadway ~ Suite 2220 NewYork, New York 10006 (212) 226-6662 evidence of a possible infection. CT scan of the abdomen and pelvis with oral and intravenous contrast revealed a small to moderate amount of intraperitoneal free air and sizable anterior collections of fluid and gas. Given her symptoms and the findings on CT scan, Mrs. Barona was admitted to the hospital and placed on intravenous antibiotics (Zosyn). 7 In a departure from good and accepted medical standards of care, defendant failed to perform additional imaging to determine the source of Mrs. Barona’s sepsis and to rule out any bowel injury (Colorectal Affidavit, § 20).? In a properly performed gynecologic surgery there should not be any injury to the bowel. When a patient undergoes gynecologic surgery and, three (3) days later, develops severe abdominal pain, a fever and multiple collections in the abdomen, it is incumbent to rule out an enteric course of infection, i.e. an injury to the small bowel or colon. This holds particularly true when the patient, such as Mrs. Barona, undergoes a surgical procedure in which the operative report note specifically mentions “dense adhesions to the colon” (Colorectal Affidavit, { 20). 8 Additionally, in a further departure from good and accepted medical standards of care, defendant failed to drain the anterior collections of fluid / gas that were present on the August 31, 2012 CT scan (IR Affidavit, § 20). Contrary to the position of the defendant, these collections could ? Plaintiffs’ expert colorectal surgeon was previously identified in plaintiffs’ Response to CPLR § 3101 (d) Demand, dated June 18, 2015 (Def. Exhibit “F”).