Preview
FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021
STATE OF NEW YORK
SUPREME COURT: COUNTY OF ERIE
RYAN HABALOU,
Plaintiff,
Affidavit of
Robert Armstrong, MD
v.
Index No. 814057/2018
MICHELE ST. CLAIR,
Defendant.
STATE OF NEW YORK )
) ss:
COUNTY OF ERIE )
Robert Armstrong, MD, being duly sworn, deposes and says that:
1. I am board certified surgeon licensed to practice medicine in the State of New
York. I have been retained as a medical expert by the defendant, Michele St. Clair, in the
above-captioned lawsuit.
2. I received my medical degree from the Boonshoft School of Medicine at Wright
State University in Dayton, Ohio, in 2009. Thereafter, I completed my general surgery
residency at University Hospitals Case Medical Center in Cleveland, Ohio. I am board certified
by the American Board of Surgery and am a Fellow of the American Co!!ege of Surgeons. A
copy of my curriculum vite is attached hereto under Exhibit A.
3. I am a general surgeon in practice with Surgical Associates of Western New
York, PC, as well as with Catholic Health System. I have extensive experience in minimally
invasive surgery with abdorniñal wall reconstruction and component separation.
4. The facts and opinions contained in this affidavit are based upon my review of
the following documents and medical records:
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• Summons and Complaint, dated August 29, 2018, attached hereto as Exhibit B;
• Verified Bill of Particulars, dated April 8, 2019, attached hereto as Exhibit C;
• Response to Omnibus Discovery Demands, dated April 8, 2019, attached hereto as
Exhibit D;
• Transcript of Mr. Habalou's September 12, 2019, deposition, attached hereto as Exhibit
E;
• Lancaster Ambulance medical records, attached hereto as Exhibit F;
• Sisters of Charity-St. Joseph Campus medical records, attached hereto as Exhibit G;
Erie County Medical Center medical records, attached hereto as Exhibit H;
• Highgate Medical Group medical records, attached hereto as Exhibit I;
• Progressive Insurance No-Fault medical file, attached hereto as Exhibit J;
• MV-104A Police Accident Report of June 22, 2018, attached hereto as Exhibit K;
• Color photographs of vehicles involved in the accident, attached hereto as Exhibit L.
FACTSUMMARYOFTHE CASE:
5. Mr. Habalou was involved in a rear-end ceilision motor vehicle accident on June
22, 2018. Photographs of Mr. Habalou's black Dodge Durango show only minimal damage to
the rear passenger quarter-panel.
6. Lancaster Ambulance personnel reported that Mr. Habalou was found
ambulating at the scene in the care of Millgrove EMS. In their report, Lancaster Ambulance
damage."
personnel note that Mr. Habalou's vehicle sustained "rainirnal
7. Mr. Habalou complained of back pain and a slight headache, and requested
transportation to St. Joseph Campus for an evaluation. Mr. Habalou was offered spinal
immobilization during transport but refused.
8. Mr. Habalou was treated in the emergency department of St. Joseph Campus.
At St. Joseph, Mr. Habalou reported that he was wearing a lap belt and shoulder harness during
the accident. He also reported that his airbags did not deploy. Mr. Habalou chief complaint
consisted of a burning sensation between the shoulder blades and lower back pain.
9. At St. Joseph, Mr. Haba!ou made no complaints of abdominal pain. A nurse
triage note states that Mr. Habalou reported tenderness on palpation in all four abdominal
quadrants. The physician documentation of this visit states as follows:
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Based on the history and exam findings, there is no indication for
further emergent testing or inpatient evaluation. . .. He presents
only complaining of some minor stiffness inferior neck and a mild
headache that has since improved markedly. Neurological exam
is grossly unremarkable, there is no obvious abdominal
pain/tenderness or bruising, no indication at this for further
imaging studies.
10. The physician documentation includes the following abdominal/gastrointestinal
examination: "Inspection: abdomen appears normal, bruising is not seen. Bowel sounds:
normal in allquadrants. Palpation: abdomen is soft and non-tender in allquadrants, rebound
tenderness is not appreciated, voluntary guarding is not appreciated. Simply states there is a
tightness sensation in the right side of his abdomen. Indicators: McBurney's point is not tender,
negative."
Murphy's sign is Deep tenderness at McBurney's point is a sign of acute
appendicitis No diagnostic imaging of Mr. Habalou's abdomen was obtained.
11. Clinical symptoms and signs suggestive of appendicitis include a history of
central abdominal pain migrating to the right lower quadrant, anorexia, fever, and
nausea/vomiting. Mr. Habalou had none of these signs or symptoms when he was treated at
St. Joseph Hospital.
12. Mr. .Habalou testified that he experienced the following symptoms after the
accident.
I feltlike- I was to fiancée about it. I toldher itfelt like
talking my
waves crashing on my body. Itfelt like I got hit by a truck. I mean
just sore, just body sore from like working out at a gym. And she
told me itwas normal from the seat belt. But I did feel sore. .. . [I
felt soreness in the muscles of my upper body], From the waist up.
I mean all the way up to behind my ears. I felt itall the way up
shoulder, chest, stomach all above the waist. [In my] Lower
[stomach area], below my belly button. And I feltpains in my back,
lighter pains, sharp pains.
13. On June 26, 2018, Mr. Habalou appeared at the Erie County Medical Center
Emergency Department. (83, 85). He described the events that caused him to seek treatment
at ECMC as follows:
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Tuesday, we went to Blackwater, had a few tacos, a few drinks, I
went with my brother, umm, and I mean I came home, and I
started feeling stomach pains. I thought it was from the alcohol
from drinking. I mean we just do a couple margaritas, a shot of
tequila, and with the tacos it'sa special. So I just thought itwas
from the drinking so I just kind of hung out, waited itout. Like I
thought I was hung-over or something. And then I'm stubborn, I
don't like going to the doctors at all, and the pain got a littlebit
. sharper or worse, I took a bath, and then itgot to the point where I
was on the floor in the living room, and I actually asked my fiancée
to call somebody to watch the kids so she can take me to the
hospital. The pains were so severe that I couldn't even move. So,
yeah, I actually asked her to take me because itwas, I mean that
bad.
(83-84). Mr. Habalou ate two tacos, drank a margarita, a shot of tequila, and two beers while at
hours."
the Blackwater. (90). He got home at 11:00 p.m., and feltfine for "a couple of (91). He
went to ECMC sometime after 2:00 a.m. (91).
14. The June 26, 2018, Erie County Medical Center Surgery-General H&P record
states that Mr. Habalou complained of abdominal pain since the accident, worsening over the
preceding 24 hours with nausea and vomiting. The atteñding surgeon's statement in the H&P
includes the following: "I evaluated [patient] in ED. Though he has confounding history of MVC,
he has presentation otherwise fairly straightforward for acute appeñdicitis, also noted on CT
scan."
15. The abdominal CT scan included the following findings relevant to the appendix:
"The appendix is dilated with periappendiceal inflammatory changes. No rim-enhancing liquid
GOileGtioñ to Suggest an abscess. Tiny, increased in number right lower quadrant lymph nodes
reactive."
are These findings were confirmed by the ECMC surgical team after their review of
the CT scan images.
16. On the basis of the objective evidence, Mr. Habalou was diagnosed with acute
appeñdicitis. A laparoscopic appendectomy was scheduled and performed the following day,
June 27, 2018.
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17. The surgical pathology report of July 4, 2018 confirmed the pre-operative
diagnosis of appendicitis.
OPINIONS:
18. Based upon my review of the materials listed above I offerthe following opinions,
allof which have been formed within a reasonable degree of medical certainty.
19. Appeñdicitis is acute inflammation of the vermiform appendix, typically resulting
in abdominal pain, anorexia, and abdominal tenderness. Diagnosis is clinical, often
supplemented by CT or ultramunvw aphy. Treatment is surgical removal of the appendix.
20. Appendicitis is thought to result from obstruction of the appendiceal lumen,
typically by lymphoid hyperplasia but occasionally by a fecalith or foreign body. The obstruction
leads to distention, bacterial overgrowth, ischemia, and inflammation. Ifuntreated, necrosis,
gangrene, and perforation occur.
21. The classic acute appendicitis symptoms include epigastric or periumbilical pain
followed by brief nausea, vomiting, and anorexia. After a few hours, the pain shifts to the right
lower quadrant. Pain increases with cough and motion.
22. Classic signs of appendicitis include right lower quadrant direct and rebound
tendemess located at the McBurney point (junction of the middle and outer thirds of the line
joining the umbilicus to the anterior superior iliacspine).
23. 8.6 % of males will develop appendicitis in their lifetime.
24. Based on my review of the medical records and deposition transcript, it is my
opinion that Mr. Habalou did not sustain appendicitis as a result of the motor vehicle accident of
June 22, 2018. It is my further opinion that the acute appendicitis diagnosed during Mr.
Habalou's hospitalization on July 26-27, 2018, was sporadic in nature, and that the infection
was merely coincidental with the accident of June 2, 2018.
25. Mr. Habalou's chief complaint at St. Joseph Campus was of a burning sensation
between the shoulder blades and lower back pain.
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26. Mr. Habalou made no complaints of abdominal pain during his visitto St. Joseph
Campus on the date of the accident.
27. The physician documentation in the St. Joseph Campus records establishes that
there is no objective medical evidence upon which to base a finding that the acute appendicitis
was caused by the accident. In fact, allrelevant objective testing performed on Mr. Habalou's
abdomen was deemed to be negative: "Inspection: abdomen appears normal, bruising is not
seen. Bowel sounds: normal in all quadrants. Pa!pation: abdomen is soft and non-tender in all
quadrants, rebound tenderness is not appreciated, voluntary guarding is not appreciated.
Simply states there is a tightness sensation in the right side of his abdomen. . ladicators:
negative."
McBurney's point is not tender, Murphy's sign is
28. Deep tenderness at McBurney's point is a sign of acute appendicitis. There was
no point tenderness identified during Mr. Habalou's treatment at St.Joseph Campus.
29. Clinical symptoms and signs suggestive of appendicitis include a history of
central abdominal pain migrating to the right lower quadrant, anorexia, fever, and
nausea/vomiting. Mr. Habalou had none of these signs or symptoms when he was treated at
St. Joseph Hospital.
30. Mr. Haba!ou was tolerating his diet without issues betwêên the accident and the
onset of appêñdicitis. Mr. Habalou testified that on the date he developed symptoms consistent
with acute appendicitis he ate two tacos, a margarita, a shot of tequila, and two beers.
Accordingly, itis my opinion that Mr. Habalou's case of appendicitis was sporadic , i.e.,isolated,
in nature. Further, to the extent ithas been alleged that the appendicitis was a traumatically
induced consequence of the rear-end impact, the objective medical evidence contained in the
records support no finding that Mr. Habalou suffered a trauma to his abdomen in the accident.
31. As itpertains to any long-term health effects, the medical records do not support
any claim that Mr. Habalou suffers any pain or limitations as a result of the laparoscopic
appendectomy. The appendicitis was treated appropriately. He recovered completely from his
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surgery and his subsequent primary care office notes by Highgate Health Group document no
abdominal pains, hernias or any other cñgaing effects or disabilities from his laparoscopic
appendectomy.
32. In conclusion: four days after he was involved in a rear-end impact accident, Mr.
Habal u developed acute appendicitis. The appendicitis was treated appropriately by
laparoscopic appendectomy. Thereafter, Mr. Habalou had corñplete .recovery with no
documented disabilities attributable to.the appendectomy or the infectics.
Robert Armstrong, MD
Sworn to before me this
th day of April, 2021
Notary Public
MICHELLÈÃ. S mER
Stateof New York
Notary Public,
No. 01SN4996542
Qualified in ErieCounty
Commission Expires May 18, 20
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Preview
FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021 STATE OF NEW YORK SUPREME COURT: COUNTY OF ERIE RYAN HABALOU, Plaintiff, Affidavit of Robert Armstrong, MD v. Index No. 814057/2018 MICHELE ST. CLAIR, Defendant. STATE OF NEW YORK ) ) ss: COUNTY OF ERIE ) Robert Armstrong, MD, being duly sworn, deposes and says that: 1. I am board certified surgeon licensed to practice medicine in the State of New York. I have been retained as a medical expert by the defendant, Michele St. Clair, in the above-captioned lawsuit. 2. I received my medical degree from the Boonshoft School of Medicine at Wright State University in Dayton, Ohio, in 2009. Thereafter, I completed my general surgery residency at University Hospitals Case Medical Center in Cleveland, Ohio. I am board certified by the American Board of Surgery and am a Fellow of the American Co!!ege of Surgeons. A copy of my curriculum vite is attached hereto under Exhibit A. 3. I am a general surgeon in practice with Surgical Associates of Western New York, PC, as well as with Catholic Health System. I have extensive experience in minimally invasive surgery with abdorniñal wall reconstruction and component separation. 4. The facts and opinions contained in this affidavit are based upon my review of the following documents and medical records: 1 of 7 FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021 • Summons and Complaint, dated August 29, 2018, attached hereto as Exhibit B; • Verified Bill of Particulars, dated April 8, 2019, attached hereto as Exhibit C; • Response to Omnibus Discovery Demands, dated April 8, 2019, attached hereto as Exhibit D; • Transcript of Mr. Habalou's September 12, 2019, deposition, attached hereto as Exhibit E; • Lancaster Ambulance medical records, attached hereto as Exhibit F; • Sisters of Charity-St. Joseph Campus medical records, attached hereto as Exhibit G; Erie County Medical Center medical records, attached hereto as Exhibit H; • Highgate Medical Group medical records, attached hereto as Exhibit I; • Progressive Insurance No-Fault medical file, attached hereto as Exhibit J; • MV-104A Police Accident Report of June 22, 2018, attached hereto as Exhibit K; • Color photographs of vehicles involved in the accident, attached hereto as Exhibit L. FACTSUMMARYOFTHE CASE: 5. Mr. Habalou was involved in a rear-end ceilision motor vehicle accident on June 22, 2018. Photographs of Mr. Habalou's black Dodge Durango show only minimal damage to the rear passenger quarter-panel. 6. Lancaster Ambulance personnel reported that Mr. Habalou was found ambulating at the scene in the care of Millgrove EMS. In their report, Lancaster Ambulance damage." personnel note that Mr. Habalou's vehicle sustained "rainirnal 7. Mr. Habalou complained of back pain and a slight headache, and requested transportation to St. Joseph Campus for an evaluation. Mr. Habalou was offered spinal immobilization during transport but refused. 8. Mr. Habalou was treated in the emergency department of St. Joseph Campus. At St. Joseph, Mr. Habalou reported that he was wearing a lap belt and shoulder harness during the accident. He also reported that his airbags did not deploy. Mr. Habalou chief complaint consisted of a burning sensation between the shoulder blades and lower back pain. 9. At St. Joseph, Mr. Haba!ou made no complaints of abdominal pain. A nurse triage note states that Mr. Habalou reported tenderness on palpation in all four abdominal quadrants. The physician documentation of this visit states as follows: 2 of 7 FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021 Based on the history and exam findings, there is no indication for further emergent testing or inpatient evaluation. . .. He presents only complaining of some minor stiffness inferior neck and a mild headache that has since improved markedly. Neurological exam is grossly unremarkable, there is no obvious abdominal pain/tenderness or bruising, no indication at this for further imaging studies. 10. The physician documentation includes the following abdominal/gastrointestinal examination: "Inspection: abdomen appears normal, bruising is not seen. Bowel sounds: normal in allquadrants. Palpation: abdomen is soft and non-tender in allquadrants, rebound tenderness is not appreciated, voluntary guarding is not appreciated. Simply states there is a tightness sensation in the right side of his abdomen. Indicators: McBurney's point is not tender, negative." Murphy's sign is Deep tenderness at McBurney's point is a sign of acute appendicitis No diagnostic imaging of Mr. Habalou's abdomen was obtained. 11. Clinical symptoms and signs suggestive of appendicitis include a history of central abdominal pain migrating to the right lower quadrant, anorexia, fever, and nausea/vomiting. Mr. Habalou had none of these signs or symptoms when he was treated at St. Joseph Hospital. 12. Mr. .Habalou testified that he experienced the following symptoms after the accident. I feltlike- I was to fiancée about it. I toldher itfelt like talking my waves crashing on my body. Itfelt like I got hit by a truck. I mean just sore, just body sore from like working out at a gym. And she told me itwas normal from the seat belt. But I did feel sore. .. . [I felt soreness in the muscles of my upper body], From the waist up. I mean all the way up to behind my ears. I felt itall the way up shoulder, chest, stomach all above the waist. [In my] Lower [stomach area], below my belly button. And I feltpains in my back, lighter pains, sharp pains. 13. On June 26, 2018, Mr. Habalou appeared at the Erie County Medical Center Emergency Department. (83, 85). He described the events that caused him to seek treatment at ECMC as follows: 3 of 7 FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021 Tuesday, we went to Blackwater, had a few tacos, a few drinks, I went with my brother, umm, and I mean I came home, and I started feeling stomach pains. I thought it was from the alcohol from drinking. I mean we just do a couple margaritas, a shot of tequila, and with the tacos it'sa special. So I just thought itwas from the drinking so I just kind of hung out, waited itout. Like I thought I was hung-over or something. And then I'm stubborn, I don't like going to the doctors at all, and the pain got a littlebit . sharper or worse, I took a bath, and then itgot to the point where I was on the floor in the living room, and I actually asked my fiancée to call somebody to watch the kids so she can take me to the hospital. The pains were so severe that I couldn't even move. So, yeah, I actually asked her to take me because itwas, I mean that bad. (83-84). Mr. Habalou ate two tacos, drank a margarita, a shot of tequila, and two beers while at hours." the Blackwater. (90). He got home at 11:00 p.m., and feltfine for "a couple of (91). He went to ECMC sometime after 2:00 a.m. (91). 14. The June 26, 2018, Erie County Medical Center Surgery-General H&P record states that Mr. Habalou complained of abdominal pain since the accident, worsening over the preceding 24 hours with nausea and vomiting. The atteñding surgeon's statement in the H&P includes the following: "I evaluated [patient] in ED. Though he has confounding history of MVC, he has presentation otherwise fairly straightforward for acute appeñdicitis, also noted on CT scan." 15. The abdominal CT scan included the following findings relevant to the appendix: "The appendix is dilated with periappendiceal inflammatory changes. No rim-enhancing liquid GOileGtioñ to Suggest an abscess. Tiny, increased in number right lower quadrant lymph nodes reactive." are These findings were confirmed by the ECMC surgical team after their review of the CT scan images. 16. On the basis of the objective evidence, Mr. Habalou was diagnosed with acute appeñdicitis. A laparoscopic appendectomy was scheduled and performed the following day, June 27, 2018. 4 of 7 FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021 17. The surgical pathology report of July 4, 2018 confirmed the pre-operative diagnosis of appendicitis. OPINIONS: 18. Based upon my review of the materials listed above I offerthe following opinions, allof which have been formed within a reasonable degree of medical certainty. 19. Appeñdicitis is acute inflammation of the vermiform appendix, typically resulting in abdominal pain, anorexia, and abdominal tenderness. Diagnosis is clinical, often supplemented by CT or ultramunvw aphy. Treatment is surgical removal of the appendix. 20. Appendicitis is thought to result from obstruction of the appendiceal lumen, typically by lymphoid hyperplasia but occasionally by a fecalith or foreign body. The obstruction leads to distention, bacterial overgrowth, ischemia, and inflammation. Ifuntreated, necrosis, gangrene, and perforation occur. 21. The classic acute appendicitis symptoms include epigastric or periumbilical pain followed by brief nausea, vomiting, and anorexia. After a few hours, the pain shifts to the right lower quadrant. Pain increases with cough and motion. 22. Classic signs of appendicitis include right lower quadrant direct and rebound tendemess located at the McBurney point (junction of the middle and outer thirds of the line joining the umbilicus to the anterior superior iliacspine). 23. 8.6 % of males will develop appendicitis in their lifetime. 24. Based on my review of the medical records and deposition transcript, it is my opinion that Mr. Habalou did not sustain appendicitis as a result of the motor vehicle accident of June 22, 2018. It is my further opinion that the acute appendicitis diagnosed during Mr. Habalou's hospitalization on July 26-27, 2018, was sporadic in nature, and that the infection was merely coincidental with the accident of June 2, 2018. 25. Mr. Habalou's chief complaint at St. Joseph Campus was of a burning sensation between the shoulder blades and lower back pain. 5 of 7 FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021 26. Mr. Habalou made no complaints of abdominal pain during his visitto St. Joseph Campus on the date of the accident. 27. The physician documentation in the St. Joseph Campus records establishes that there is no objective medical evidence upon which to base a finding that the acute appendicitis was caused by the accident. In fact, allrelevant objective testing performed on Mr. Habalou's abdomen was deemed to be negative: "Inspection: abdomen appears normal, bruising is not seen. Bowel sounds: normal in all quadrants. Pa!pation: abdomen is soft and non-tender in all quadrants, rebound tenderness is not appreciated, voluntary guarding is not appreciated. Simply states there is a tightness sensation in the right side of his abdomen. . ladicators: negative." McBurney's point is not tender, Murphy's sign is 28. Deep tenderness at McBurney's point is a sign of acute appendicitis. There was no point tenderness identified during Mr. Habalou's treatment at St.Joseph Campus. 29. Clinical symptoms and signs suggestive of appendicitis include a history of central abdominal pain migrating to the right lower quadrant, anorexia, fever, and nausea/vomiting. Mr. Habalou had none of these signs or symptoms when he was treated at St. Joseph Hospital. 30. Mr. Haba!ou was tolerating his diet without issues betwêên the accident and the onset of appêñdicitis. Mr. Habalou testified that on the date he developed symptoms consistent with acute appendicitis he ate two tacos, a margarita, a shot of tequila, and two beers. Accordingly, itis my opinion that Mr. Habalou's case of appendicitis was sporadic , i.e.,isolated, in nature. Further, to the extent ithas been alleged that the appendicitis was a traumatically induced consequence of the rear-end impact, the objective medical evidence contained in the records support no finding that Mr. Habalou suffered a trauma to his abdomen in the accident. 31. As itpertains to any long-term health effects, the medical records do not support any claim that Mr. Habalou suffers any pain or limitations as a result of the laparoscopic appendectomy. The appendicitis was treated appropriately. He recovered completely from his 6 of 7 FILED: ERIE COUNTY CLERK 05/18/2021 03:20 PM INDEX NO. 814057/2018 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/18/2021 surgery and his subsequent primary care office notes by Highgate Health Group document no abdominal pains, hernias or any other cñgaing effects or disabilities from his laparoscopic appendectomy. 32. In conclusion: four days after he was involved in a rear-end impact accident, Mr. Habal u developed acute appendicitis. The appendicitis was treated appropriately by laparoscopic appendectomy. Thereafter, Mr. Habalou had corñplete .recovery with no documented disabilities attributable to.the appendectomy or the infectics. Robert Armstrong, MD Sworn to before me this th day of April, 2021 Notary Public MICHELLÈÃ. S mER Stateof New York Notary Public, No. 01SN4996542 Qualified in ErieCounty Commission Expires May 18, 20 7 of 7