~,.
`
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`SUPREME COURT: STATE OF NEW YORK
`lAS PART WESTCHESTER COUNTY
`PRESENT: HON. JOAN B. LEFKOWITZ, J.S.C.
`---------------------------------------------------------------------)(
`CHRISTINE COSTOSO-MILLER,
`as Administratrix of
`the Estate of ROBERT MILLER, Deceased, and
`CHRISTINE COSTOSO-MILLER,
`Individually,
`
`To commence the statutory time period for
`appeals as of right (CPLR 5513[a]), you are
`advised to serve a copy of this order, with
`notice of entry, upon all parties.
`
`Plaintiffs,
`
`-against-
`
`WESTCHESTER COUNTY HEAL THCARE
`CORPORA TlON (MIDHUDSON REGIONAL
`HOSPITAL OF WESTCHESTER COUNTY MEDICAL
`CENTER), WILLIAM BARRACK, M.D., ORTHOPEDIC
`ASSOCIATES OF DUTCHESS COUNTY, P.C., FAIZAN
`ARSHAD, M.D., and LORETTA OBI, M.D.,
`
`Defendants.
`---------------------------------------------------------------------)(
`
`DECISION & ORDER
`
`Index No: 69729/2015
`
`Motion Return Date:
`December 8, 2017
`Motion Seq. #2
`
`The following papers (e-filed documents 33-45; 111-128; 133-135) were read on the
`motion by the defendants, William Barrack, M.D., and his employer, Orthopedic Associates of
`Dutchess County, PC., for an order granting summary judgment dismissing the complaint
`insofar
`as it asserts a cause of action against them.
`
`Notice of Motion, Affirmation, Affidavit (Exhibits A-J)
`Affirmation in Opposition (Exhibits A-Q)
`Reply Affirmation (Exhibits I-J [sic])
`
`Upon reading the foregoing papers it is
`
`ORDERED the motion is denied; and it is further
`
`ORDERED the parties are directed to appear on July 31, 2018, at 9:15 a.m. in the
`Settlement Conference Part, Courtroom 1600, Westchester County Supreme Court, 111 Martin
`Luther King Boulevard, White Plains, New York, prepared to conduct a settlement conference.
`
`On October 23, 2014, Robert Miller consulted with Dr. William Barrack concerning his
`neck, back and shoulder pain. Eventually Dr. Barrick recommended surgery to remove a disc in
`Mr. Miller's neck and fuse the spine there. Mr. Miller consulted with his primary care physician,
`Dr. Fontanez, who cleared him for the surgery. Dr. Fontanez instructed Miller to discontinue all
`anti-inflammatory products such aspirin or Aleve for one week prior to surgery.
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`I, 2014, Miller met with Dr. Barrack. At that time it was agreed to go
`On December
`ahead with the elective surgery. The surgery was then scheduled for December 17,2014, at
`Mid-Hudson Regional Hospital. Miller received written instructions from Mid-Hudson Regional
`Hospital to stop anti-inflammatory medicines,
`including Aleve, one week before surgery.
`
`that
`On the day of surgery, December 17, 2014, Mr. Miller advised the anesthesiologist
`he had taken AIeve within the past 48 hours. Dr. Barrack's notes state, "Had Aleve.
`Increased
`risks of surgical bleeding discussed with patient and daughter. Patient declines cancellation of
`surgery despite increased risks." Mr. Miller's daughter has a different recollection. At
`deposition,
`the daughter testified Dr. Barrack was hesitant to go forward with the surgery and her
`father stated I am already on disability and am already here, do you think we should go forward
`with it, and that Dr. Barrack responded yes, it was a quick surgery and everything would be fine.
`
`indicates a loss of 50 ccs of
`Dr. Barrack performed the surgery. His post-operative report
`blood and states the inferior thyroidal artery was not in the operative field. At deposition and in
`an affidavit he denied the artery could have been injured since he did not see it in the operative
`field and that if it were injured there would have been the loss of more blood.
`
`Mr. Miller was admitted to the Post Anesthesia Care Unit (PACU) at approximately 6:57
`p.m. He had a slight temperature, elevated blood pressure and a pain score of Oilo. Dr.
`Barrack's post operative orders included orders that Mr. Miller's head be elevated to reduce
`airway swelling and prevent aspiration and that a Miami J collar be worn out of bed, but not in
`bed. No orders were issued regarding the increased risk of bleeding due Miller's
`ingestion of
`Aleve within 48 hours of the surgery. Prior to leaving Miller in the recovery room at 7:44 p.m.
`Dr. Barrack noted that Mr. Miller's voice was normal and that he observed no swelling of the
`neck.
`
`Mr. Miller's family then visited him in the PACU. His daughter recalled that Mr. Miller
`was wearing a big collar, did not speak and appeared to be in pain. At 7:25 p.m. morphine was
`administered when Mr. Miller reported his pain level at 511O. Additional medications were
`administered for elevated blood pressure and for nausea.
`
`Miller was transferred from PACU to the total joint center at 9:35 p.m. His pain score
`was 3110 and his blood pressure was lower.
`
`At 10:45 p.m. Dr. Obi examined Miller at Dr. Barrack's request for management of his
`diabetes. Dr. Obi testified that Miller complained of neck pain and tightness of the collar. Dr.
`Obi made no inquiry as to the reason for the tightness and asked a nurse to remove it. Dr. Obi
`testified that she thought
`the collar might be tight because she thought Miller's neck was bigger
`than normal. After dictating her notes Dr. Obi again observed Miller. She observed the neck
`was swollen but attributed this to normal swelling after surgery. She only observed the neck and
`did not palpate the neck or press on the swelling. She testified that she was consulted only for
`medical issues and not surgical
`issues. During Dr. Obi's consultation Miller's pain level
`increased from 4110 to 8/10 and he was given oxycodone.
`
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`I ,
`
`Mr. Miller was noted to be sleeping at midnight, one a.m. and two a.m. He was given
`medication for nausea, vomiting, anxiety and itching. At 2:03 a.m. a note was entered that
`indicated swelling around Miller's eye, and "tenderness,
`redness and swelling" were noted in
`Miller's neck, but that no drainage, redness or swelling were noted around the incision. The note
`indicates Miller was wearing the collar. The 2:03 a.m. note does not indicate when these
`observations were made.
`
`More Ativan, an anti-anxiety drug, and oxycodone were administered at 3:26 a.m. when
`Mr. Miller reported a pain level of 9/10. A 3:4 7 a.m. note documents Mr. Miller had reported
`"discomfort" in his throat. The nurse at deposition stated that Miller told her his throat "still hurt"
`but she attributed this to Miller having been intubated during surgery.
`
`There are no nursing notes which document any interaction between the nursing staff and
`Mr. Miller between 3:47a.m. and 5: 15 a.m., a span of one hour and a half hours.
`
`A nursing note relates the following occurring at 5: 15 a.m.:
`
`"Pt received in asleep [sic] in bed, easily aroused to name. Speech clear.
`Pt states surgical pain level has improved. However,
`throat still uncomfortable, Pt
`stated 'I feel like I am having a hard time breathing.' RR easy and unlabored at
`22. Pulse OX 94%Ra. 2LNC applied. Asked to open m.outh to assess airway.
`Mild swelling to tongue. Mild swelling noted to lateral neck bilaterally. DRSG
`remains CD!. Charge nurse called to room to assess patient. Charge nurse left
`room to call Dr. Barrack to report findings of assessment. Pt quickly sat up and
`stated 'I can't breathe.' Rapid response called.
`In less than one minute pt color
`went to blue. Code blue activated.
`ICU RN x2 and RRT arrived. Refer to code
`blue flowsheet for code events."
`
`Dr. Arshad, who is trained in emergency medicine, responded to the code blue.
`According to Dr. Arshad, when he arrived Miller was in full cardiac arrest. According to the
`code blue flowsheet,
`the code blue was activated at 5:33 a.m., the monitor was applied at 5:34
`and the initial rhythm was noted as "sinus bradycardia with weak pulse." CPR was immediately
`administered. Dr. Ashad attempted to intubate Mr. Miller with a Glidescope, but could not since
`he could not adequately see the vocal chords. Next Dr. Ashad unsuccessfully attempted
`intubation with a conventionallayryngoscope
`equipped with a "Miller" blade. Dr. Ashad claims
`he was then able to successfully place a laryngeal mask airway (LMA) device. Dr. Ashad claims
`normal C02 and SaOs2 levels were maintained after placement of the LMA, although Mr. Miller
`remained pulseless. Dr. Arshad testified three minutes passed between his arrival and the
`successful placement of the LMA. Twenty minutes into the code Dr. Arshad and staff discussed
`possibility of a hematoma in the neck causing the cardiac arrest and considered performing
`surgery to create an airway but would only do so if Mr. Miller regained spontaneous circulation
`of his blood. However, Mr. Miller never regained spontaneous circulation. He was pronounced
`dead at 6: I0 a.m.
`
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`. The autopsy report indicates a cause ofMr. Miller's death as "cardio pulmonary arrest
`assocIated wIth hematoma formation in the neck." The report noted a 9 x 3 x 1.5 inch purple
`hematoma overlying the right side of the larynx, thyroid gland and upper trachea with
`hemorrhage noted throughout
`the neck. The report also states, "[u]pon postmortem perfusion of
`the vessels of the neck there appears to be leakage from a branch of the inferior thyroidal artery."
`
`This action was commenced in August 2015. Following completion of discovery, Dr.
`Barrack and Orthopedic Associates of Dutchess County, pc., move for an order granting
`summary judgment dismissing the complaint
`insofar as it asserts a cause of action against them.
`
`In support of the motion defendants submit the affidavit of Dr. Barrack who states that he
`did not deviate from good and accepted medical and surgical practice during his treatment of Mr.
`Miller. Dr. Barrack asserts that he informed Mr. Miller of the increased risks of bleeding if
`Aleve is ingested within a week of surgery, that he performed the surgery because Mr. Miller
`directed him to proceed after being informed of the increased risk of bleeding,
`that he did not
`injure the inferior thyroidal artery during the surgery because the artery was not in the operative
`field and there was minimal bleeding during the surgery, and that both his post-operative orders
`and post -operati ve care were in all ways proper.
`
`expert, based
`In opposition, plaintiff submitted the affirmation of its expert. Plaintiffs
`upon the review of the medical record and relevant depositions, stated his opinion that Dr.
`Barrack deviated from good and accepted medical practice by proceeding with the elective
`surgery knowing that Mr. Miller was exposed to an increased risk of bleeding due to his
`ingestion of Aleve within 48 hours of the surgery, by injuring the inferior thyroidal artery during
`surgery and failing to ensure the integrity of the artery prior to closing the surgical
`incision which
`caused the post-operative bleeding leading to the hematoma which cut off Mr. Miller's airway
`causing his asphyxiation, cardiac arrest and eventual death, and by failing to issue appropriate
`post-operative orders for closer monitoring of Mr. Miller to guard against the increased risk of
`bleeding due to Mr. Miller's recent ingestion of Aleve.
`
`expert notes that the surgery was elective, not an emergency, and Dr. Barrack's
`Plaintiffs
`failure to postpone the surgery to avoid the risk of bleeding deviated from accepted surgical
`practice. The expert also disputes Dr. Barrack's claim that the inferior thyroidal artery was not in
`the operative field. The expert states it is "anatomically impossible for Dr. Barrack not to
`visualize the inferior thyroidal artery" because in his post-operative report, Dr. Barrack notes that
`he had a difficult dissection of the longus colli muscle due to "a deep neck with tight soft tissues
`and low lying C7-TI," and, according to plaintiff's
`expert, the inferior thyroidal artery must have
`been visible since it runs in front of the longus colli muscle. The expert also disputes Dr.
`Barrack's claim that he did not injure the inferior thyroidal artery. The expert asserts "[i]t is
`physiologically impossible for leaking [as described in the autopsy report] to form from a branch
`of the inferior thyroidal artery without some form of injury to it."
`
`is not appropriate in a medical malpractice action where the parties
`"Summary judgment
`adduce conflicting medical expert opinions. Such conflicting expert opinions ...
`raise credibility
`
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`FILED: WESTCHESTER COUNTY CLERK 07/03/2018 04:42 PM
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`\ •
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`INDEX NO. 69729/2015
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`issues which can only be resolved by a jury" (Barrocales v. New York Methodist Hasp., 122
`AD3d 648, 649 [2d Dept 2014] [internal quotations and citations omitted]).
`('
`().
`
`Here, the papers submitted raise a triable issue of fact whether Dr. Barrack deviated from
`good and accepted medical and surgical practice in his treatment of Mr. Miller, and whether that
`deviation was a proximate cause of his asphyxiation, cardiac arrest and death.
`
`ENTER,
`
`Dated: White Plains, New Yark
`July3, 2018
`
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