Torres v. Cergnul , 146 A.D.3d 509 ( 2017 )

Order, Supreme Court, Bronx County (Douglas E. McKeon, J-), entered April 21, 2015, which, insofar as appealed from, granted defendants Irene G. Cergnul, M.D. and Bronx-Lebanon Hospital Center’s motion for summary judgment dismissing the complaint as against them, reversed, on the law, without costs, and the motion denied.

Defendants Dr. Cergnul and Bronx-Lebanon established prima facie that they did not depart from the accepted standard of medical care in diagnosing and treating plaintiff’s 2006 ectopic pregnancy (see Scalisi v Oberlander, 96 AD3d 106, 120 [1st Dept 2012]). Their expert opined that Dr. Cergnul provided appropriate care when she saw plaintiff on June 6 and ordered a repeat BhCG (a hormone produced during pregnancy) test, that no further tests were necessary that day because plaintiff was stable, and that it was appropriate and proper for the attending doctor at defendant Bronxcare MBD Family Practice Clinic (MBD) on June 7 to receive the laboratory reports, which indicated that the pregnancy was likely resolving by itself. With respect to plaintiff’s June 22 visit to Bronx-Lebanon’s emergency room, where the attending physician told plaintiff that he was too busy to perform diagnostic laparoscopy and would only perform a more invasive procedure, the expert opined that Bronx-Lebanon’s staff fully explained to plaintiff the risks of her signing out against medical advice, and that there was in any event no immediate need for surgical intervention because plaintiff was stable. Defendants’ expert further opined that neither Dr. Cergnul’s treatment nor the performance of a salpingectomy at Bronx-Lebanon on June 23 caused plaintiff’s fallopian tube to rupture.

In opposition, plaintiff raised issues of fact by submitting the report of an expert who opined that, in light of plaintiff’s symptoms, which were indicative of an ectopic pregnancy, and medical history, which included a previous ectopic pregnancy, Dr. Cergnul should have followed up with plaintiff immediately after the results of the BhCG test she ordered on June 6 became available, and that as a result of her failure to do so, plaintiff lost the opportunity to be timely treated with methotrexate and avoid a ruptured fallopian tube (see Dallas-Stephenson v Waisman, 39 AD3d 303, 307 [1st Dept 2007]). Defendants contend that the report should not have been considered, because the expert’s name had been redacted from it. However, they did not object to the redaction (see CPLR 3101 [d] [1] [i]); therefore, the report was properly considered (see Vega v Mount Sinai-NYU Med. Ctr. & Health Sys., 13 AD3d 62 [1st Dept 2004]).

Defendants contend that plaintiff was solely at fault because, they allege, she was told to return to MBD two days later and failed to do so. However, there is no evidence in the record that an appointment was ever made for plaintiff for June 8.^* Accordingly, the evidence presents issues of fact as to whether an appointment was scheduled and missed, whether Dr. Cergnul breached the standard of care by not following up with plaintiff after the June 7 BhCG test results became available (whether or not the alleged appointment was missed), and the apportionment of fault. Defendants’ reliance on cases limiting the duty of consulting physicians is misplaced (see Sawh v Schoen, 215 AD2d 291, 294 [1st Dept 1995]; Lipton v Kaye, 214 AD2d 319 [1st Dept 1995]). Dr. Cergnul was actively involved in plaintiffs treatment, even if she was not plaintiff’s primary physician.

The dissent views plaintiff’s expert’s opinion regarding Dr. Cergnul’s failure to follow up with plaintiff as soon as the June 7 BhCG test results were available as “speculative,” citing Rivers v Birnbaum (102 AD3d 26, 44 [2d Dept 2012]). In that case, more than a year passed between defendant’s alleged misinterpretation of pathology slides and plaintiff’s cancer diagnosis, and the Court found that plaintiff’s expert’s assertion that the correct diagnosis a year earlier would have led to appropriate treatment was speculative (id. at 32, 44). Here, plaintiff received what even Dr. Cergnul agrees was the appropriate treatment, methotrexate therapy. Plaintiff’s expert asserts, however, that the treatment would have been more effective, preventing the loss of plaintiff’s remaining fallopian tube, had it been administered as soon as Dr. Cergnul had the June 7 BhCG test results. Dr. Cergnul’s colleague, Dr. Borne, did on June 16 exactly what plaintiff’s expert said Dr. Cergnul should have done a week earlier: send plaintiff to the emergency room to rule out ectopic pregnancy and receive appropriate treatment for her emergent condition. At the hospital, ectopic pregnancy could not be ruled out, and plaintiff was offered and accepted treatment with methotrexate. Dr. Cergnul testified that she was “relieved” when she later learned that plaintiff had received methotrexate, indicating her agreement that this was the appropriate treatment. Plaintiff’s expert notes that “[i]t is widely recognized that the success of methotrexate therapy is significantly greater when introduced earlier in the pregnancy (when BhCG level is below 3,000) — and that the risk for failure, as was later experienced in this patient, is greater the longer the amount of time elapsing between conception and introduction of Methotrexate therapy.” In the eight days between when the June 7 BhCG results were available to Dr. Cergnul (who testified that she could not recall if she ever saw them) and when plaintiff went to the hospital, plaintiff’s BhCG levels had risen from 743.4 to 7,096.5. Accordingly, plaintiff’s expert’s opinion is based on facts in the record and is not speculative.

Plaintiff’s expert’s report also raised an issue of fact as to whether Bronx-Lebanon departed from medical standards by failing to provide plaintiff with the option of immediate surgical intervention, in particular, diagnostic laparoscopy, on June 22, when she presented with lower left quadrant and pelvic pain, cramping, and vaginal bleeding since the previous night. Defendants contend that they cannot be held liable for plaintiff’s refusal, against medical advice, to undergo immediate surgery (see Ingutti v Rochester Gen. Hosp., 114 AD3d 1302 [4th Dept 2014], appeal dismissed 23 NY3d 929 [2014]). However, an issue of fact exists as to whether plaintiff was offered any meaningful option for surgical intervention, i.e., a procedure that would leave her remaining fallopian tube intact. Moreover, defendants’ expert’s opinion that there was no need for immediate surgical intervention because plaintiff was stable is undermined by the advice given by Bronx-Leb anon’s own staff and in any event directly contradicted by plaintiff’s expert (see Frye v Montefiore Med. Ctr, 70 AD3d 15, 25 [1st Dept 2009]).

Our dissenting colleagues assert that plaintiff was offered an exploratory laparotomy. However, as the dissenting opinion acknowledges, this surgical procedure is far more invasive than the diagnostic laparoscopy that plaintiff had previously scheduled for the following day and would have preferred to have on June 22. Plaintiff’s expert states that a laparotomy was also “far less appropriate” than a diagnostic laparascopy, and “unnecessary” under the circumstances. Furthermore, plaintiff testified that her understanding of what the Bronx-Lebanon physician told her was that he would “do a surgical procedure to remove my fallopian tube because he had a lot of surgeries and he was in a rush,” and that “[i]f I didn’t want him to perform the surgery now, then I’d have to sign myself out of the hospital.” Accordingly, plaintiff has clearly raised an issue of fact as to whether she was offered an appropriate option.

Contrary to defendants’ contention, issues of fact also exist as to whether the delay in performing surgery was a proximate cause of plaintiff’s ruptured fallopian tube (see e.g. Lesniak v Stockholm Obstetrics & Gynecological Servs., P.C., 132 AD3d 959 [2d Dept 2015]). Defendants argue that their conduct could not have proximately caused the rupture of plaintiff’s fallopian tube because intraoperative rupturing is a well known risk of even a non-negligently performed salpingostomy. However, this argument assumes that the rupture occurred during surgery, while the record is equally consistent with the fallopian tube having already ruptured before surgery. The dissent posits that plaintiff failed to present evidence supporting this. However, as plaintiff’s expert noted, the operative report states that, after adhesions were removed from the fallopian tube, “it was noted that there was a ruptured site.” Furthermore, defendants’ own expert opined that “the performance of the salpingectomy did not cause the plaintiff’s fallopian tube to rupture.”

Concur — Moskowitz, Gische and Gesmer, JJ.

* The dissent appears to read Dr. Cergnul’s note dated June 6, 2006, which orders the repeat BhCG test on June 7, and “F/U on Thursday” (June 8), to indicate that plaintiff was advised to return to MBD on June 8. We disagree that this is the only possible interpretation.