A Thoughtful Primer on Evidence and Summary Judgment
It's medical malpractice which is something we don't usually write about, but Justice Schlesinger's opinion in this medical malpractice summary judgment opinion is well worth reading. Balzola v Giese 2013 NY Slip Op 30324(U) February 5, 2013 Supreme Court, New York County Docket Number: 114205/2009 Judge: Alice Schlesinger slowly and thoroughly works it way through a medical malpractice - hearsay - summary judgment problem.
"The plaintiff, her widower and Administrator of the estate, is Pablo Balzola. It is his account of Ms. Porras’ last days which forms the critical part of this action, one sounding in wrongful death and medical malpractice, It is also the critical part of the motion now before me by the defendants, a motion to dismiss the action in its entirety. His account is so critical because Mr. Balzola, at his deposition, testified about the symptoms his wife was having as she reported them to him. Those symptoms, which included chest pains and shortness of breath, form a good part of the predicate
for the opinions provided by Dr. Mark Taff, a Pathologist and Chief Medical Examiner of Rockland County and expert for plaintiff on the issue of causation, as well as for the opinions provided by a board certified plastic surgeon and expert for the plaintiff on the issue of departures. The moving defendants are her doctor, Sharon Giese, who performed this elective surgery on June 25, her P.C., and Sarah Lazarus, her Physician’s Assistant. Pursuant to CPLR 53212, they are all moving for summary judgment.
In other words, counsel for defendants argues that, even if there had been malpractice, there is no merit to the plaintiff‘s contention that the embolism which killed Ms. Porras could have been treated, in other words, that there was time to treat it. This is from a pathology perspective.
After reviewing pathology slides, Dr. Factor states that he is able to ascertain the timing of the decedent’s fatal pulmonary embolism, In his affirmation he opines that “the fatal pulmonary embolism was acute, fresh, and traveled to the decedent’s lung only 20 to 30 seconds prior to the decedent’s acute cardiopulmonary failure.” (79, emphasis in the original). Dr. Factor further opines, also with a reasonable degree of medical certainty, that “after forming, the thrombus broke off from a vein in decedent’s lower extremity and traveled to (her) pulmonary artery only moments before it caused the acute cardiopulmonary failure and her ultimate death.” (71 0, emphasis in the original).
Finally, and this is of great significance, Dr. Factor states that ‘“he decedent would not have experienced any symptoms related to the fatal pulmonary embolism at any time prior to the moments immediately before she lost consciousness in the late evening of Saturday, June1 27, 2009”. (71 1, emphasis in the original). Thus, Dr. Factor concludes that there would have been no time for Ms. Porras to seek medical assistance. In other words, he either challenges the veracity of Mr. Balzola’s testimony regarding the reported symptoms, or he feels the symptoms are not related to the embolism.Plaintiff confronts these opinions and submits two of his own expert affirmations to refute them.
However, as alluded to earlier, what is largely determinative of this motion and action is the issue of causation. For as we all know, the defendant doctor might have been grossly negligent or terribly uncaring or worse, but if such I behavior would not have made any difference in the ultimate outcome, the tragic death of Adriana Porras, then the action must fail. Dr. Taff tells us that in his role as Chief Medical Examiner of Rockland County, he was present at the June 29, 2009 autopsy of the decedent.’ He then states that his opinions rely not only on the medical records, litigation documents and affirmations of the defense experts, but also on his own observations during the autopsy. He then recites the cause of death as was reported in the Autopsy Report. Immediately
thereafter, he gives his opinion “within a reasonable degree of medical certainty that based upon the results of the autopsy, there was sufficient time to intervene to treat her pulmonary emboli and the failure of the defendants ... to take any action deprived her of a substantial chance of cure and was the proximate cause of her death.” (Exh A to Opposition, 76).
However, Dr. Taff relies on more than “the results of the autopsy” to arrive at this conclusion. Later on in his affirmation, he discusses the testimony of Mr. Balzola as to the complaints made to him by his wife in the post-operative days, Friday and Saturday, June 26 and June 27, 2009. He relates those symptoms to his observations and explains how the latter were responsible for the former. Specifically in this regard, Dr. Taff states that during the autopsy “we found” that rather than seeing one massive clot to the lung, in fact “both of her lungs contained multiple small clots obstructing both lungs as well as one large clot lodged in the pulmonary artery and branches.” (VI 3). This physician then agrees with the report’s conclusion that it was the larger clot that caused Ms. Porras’ death, as it broke off and traveled to her lung.
However, Dr. Taff then goes on to opine, within a reasonable degree of medical certainty, that these smaller clots or “bits and pieces of the thrombosed right popliteal vein” were the cause of the “shortness of breath and chest pains” which Ms. Porras complained of to her husband on the Friday and Saturday after the surgery.In other words, the smaller clots were not enough to “completely obstruct her lung function” but were enough to diminish that function to the extent of causing her to ‘experience shortness of breath and chest pain. "
We suggest that you read the balance of the opinion, which goes on to discuss hearsay, the present sense exception and summary judgment as well as the balancing of expert opinions and fact observations.