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FILED: WESTCHESTER COUNTY CLERK 07/03/2018 04:44 PM
`NYSCEF DOC. NO. 142
`RECEIVED NYSCEF: 07/03/2018
`
`INDEX NO. 69729/2015
`
`SUPREME COURT: STATE OF NEW YORK
`lAS PART WESTCHESTER COUNTY
`J.S.C.
`PRESENT: HON. JOAN B. LEFKOWITZ,
`----------------------------------_
`..--------------------------------)(
`CHRISTINE COSTOSO-MILLER,
`as Administratrix of
`the Estate of ROBERT MILLER, Deceased, and
`CHRISTINE COSTOSO-MILLER,
`Individually,
`
`Plaintiffs,
`
`-against-
`
`the statutory time period for
`To commence
`appeals as of right (CPLR 5513[a]), you are
`advised to serve a copy of this order, with
`notice of entry, upon all parties.
`
`DECISION & ORDER
`
`Index No: 69729/2015
`
`WESTCHESTER COUNTY HEALTHCARE
`CORPORA nON (MID HUDSON 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.
`---------------------------------------------------------------------)(
`
`Motion Return Date:
`December 22, 2017
`Motion Seq. #4
`
`The following papers (e-filed documents 88-103; 111-128; 136) were read on the motion
`by the defendant, Loretta Obi, M.D., for an order granting summary judgment dismissing the
`complaint
`insofar as it asserts a cause of action against her.
`
`Notice of Motion, Affirmation (Exhibits A-N)
`Affirmation in Opposition (Exhibits A-Q)
`Reply Affirmation
`
`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, III 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.
`
`On December
`
`I, 2014, Miller met with Dr. Barrack. At that time it was agreed to go
`
`1 of 4
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/03/2018 04:44 PM
`NYSCEF DOC. NO. 142
`RECEIVED NYSCEF: 07/03/2018
`
`INDEX NO. 69729/2015
`
`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 Aleve 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.
`
`Dr. Barrack performed the surgery. His post-operative report indicates a loss of 50 ccs of
`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 sec 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 0/1O. 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 bcd, 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 5/1O. 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 3/10 and his blood pressure was lower.
`
`request for management of his
`At 10:45 p.m. Dr. Obi examined Miller at Dr. Barrack's
`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 4/1 0 to 8/10 and he was given oxycodone.
`
`-2-
`
`2 of 4
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/03/2018 04:44 PM
`NYSCEF DOC. NO. 142
`RECEIVED NYSCEF: 07/03/2018
`
`INDEX NO. 69729/2015
`
`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 of9/10. A 3:47 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 mouth to assess airway.
`Mild swelling to tongue. Mild swelling noted to lateral neck bilaterally. DRSG
`remains COl. 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 medicinc, 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.
`
`-3-
`
`3 of 4
`
`

`

`FILED: WESTCHESTER COUNTY CLERK 07/03/2018 04:44 PM
`NYSCEF DOC. NO. 142
`RECEIVED NYSCEF: 07/03/2018
`
`INDEX NO. 69729/2015
`
`indicates a cause of Mr. Miller's death as "cardio pulmonary arrest
`The autopsy report
`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.
`Obi moves for an order granting summary judgment dismissing the complaint
`insofar as it asserts
`a cause of action against her.
`
`In support of the motion Dr. Obi submitted the affirmation of her expert who opines that
`Dr. Obi, did not deviate from good and accepted medical practice in her care and treatment of
`Mr. Miller.
`
`In opposition, plaintiff submitted the affirmation of its expert orthopedic surgeon, who
`opined that Dr. Obi deviated from good and accepted medical practice by failing to appropriately
`respond to symptoms she observed during her 70 minute examination of Mr. Miller,
`including
`failing to recognize the possibility of the formation of a neck hematoma when Mr. Miller
`complained of neck pain, which increased from 4/10 to 8/10 during her examination,
`including
`observing swelling in the neck but discounting the swelling as the result of the neck brace, or
`In the opinion of
`merely a manifestation ofMr. Miller's large neck, without palpating the neck.
`plaintiffs
`expert, had Dr. Obi palpated the neck she would have discovered abnormal swelling
`and had Dr. Obi followed up on her observations of neck swelling and neck pain the bleeding
`would have been discovered and steps would have been taken to clear the airway and stop the
`bleeding thus preventing the compression of the airway.
`In the opinion of plaintiffs
`expert such
`a failure was a deviation from good and accepted medical practice and the deviation was a
`substantial factor in the formation of the hematoma which caused the compression of Mr.
`Miller's airway and his cardiac arrest.
`
`is not appropriate in a medical malpractice action where the parties
`"Summary judgment
`adduce conflicting medical expert opinions. Such conflicting expert opinions ...
`raise credibility
`issues which can only be resolved by a jury" (J3arrocales v. New York Methodist Hasp., 122
`AD3d 648, 649 [2d Dept 2014] [internal quotations and citations omitted]).
`
`Here, the expert affirmations raise triable issues of fact whether Dr. Obi deviated from
`good and accepted medical practice and whether the deviation was a substantial
`factor in causing
`.cardiac arrest.
`
`ENTER,
`
`Dated: White Plains, New York
`July 3, 2018
`
`-4-
`
`4 of 4
`
`

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