Volke v Memorial Hosp.2011 NY Slip Op 30522(U)

March 9, 2011Supreme Court, Albany County

Docket Number: 9335-09Judge: Joseph C. Teresi

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STATE OF NEW YORKSUPREME COURTHAZEL VOLKE and GERARD VOLKE,

Plaintiffs,

-against-

MEMORIAL HOSPITAL, ALBANY, N.Y., ALBANYSURGERY ASSOCIATES, P.C., ANESTHESIAGROUP OF ALBANY, P.C., ALBANY MEMORIALANESTHESIOLOGISTS, P.c., KELLY DENNIN, M.D.,PAUL DANKER, M.D., DAVID W. GIRVAN,HIE SOOK SACCA, VALLEYLAB HOLDINGCORPORA nON AND COVIDIEN, INC.,

COUNTY OF ALBANY

DECISION and ORDERINDEX NO. 9335-09RJI NO. 01-09-098946

Defendants.Supreme Court Albany County All Purpose Term, February 18, 2011

Assigned to Justice Joseph C. Teresi

APPEARANCES:Bond, Schoeneck & King, PLLCArthur Siegel, Esq.Attorneys for PlaintiffsIII Washington AvenueAlbany, New York 12210

Thuillez, Ford, Gold, Butler & Young, LLPKelly Monroe, Esq.Attorneys for Defendant Memorial Hospital, Albany, NY20 Corporate Woods BoulevardAlbany, New York 12211

TERESI, J.:

On April 7, 2009, Hazel Volke (hereinafter "Ms. Volke") was undergoing a temporal

artery biopsy at Memorial Hospital, Albany, N.Y. (hereinafter "Memorial"). During the surgery

Ms. Yolke was burned by a fire, which ignited at the surgical site. Ms. Yolke commenced this

medical malpractice action, with her husband derivatively, seeking to recover damages for the

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injuries she sustained. Issue was joined by each Defendant, discovery is complete and a trial date

certain has been set. I

Memorial now moves for summary judgment. Plaintiffs opposed the motion and cross

move for summary judgment on Memorial's liability. Memorial opposes Plaintiffs' motion.

Although Memorial did not demonstrate its entitlement to judgment as a matter of law, Plaintiffs

did; and, because Memorial raised no genuine issue of fact in opposition, Plaintiffs' motion for

summary judgment on Memorial's liability is granted.

"[S]ummary judgment is a drastic remedy that should not be granted where there is any

doubt as to the existence of a triable issue." iliapierski v. Finn, 229 AD2d 869 [3d Dept. 1996]).

The movant "bears the initial burden of demonstrating its entitlement to judgment as a

matter oflaw" (Hickey v. Arnot-Ogden Medical Center, 79 AD3d 1400 [3d Dept. 2010]), "by

proffering evidentiary proof in admissible form." (DiBartolomeo v. St. Peter's Hosp. of City of

Albany, 73 AD3d 1326 [3d Dept. 2010); Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). If

the movant establishes their right to judgment as a matter of law, the burden then shifts to the

opponent of the motion to establish, by admissible proof, the existence of a genuine issues of

fact. (Zuckerman v. City of New York, 49 NY2d 557 [1980]). "The evidence is viewed in the

light most favorable to the party opposing summary judgment." (Renwick v. Oneonta High

School, 77 AD3d 1123, 1124 [3d Dept. 2010]).

"Under settled principles, a hospital [(Memorial)] is not ordinarily liable for the negligent

acts of an independent treating physician who is not an employee of the hospital." (St. Andrews

v. Scalia, 51 AD3d 1260, 1261 [3d Dept. 2008]; Martinez v. La Porta, 50 AD3d 976 [2d Dept.

I Plaintiffs have settled their claims against all Defendants except Memorial.

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2008]). "The only recognized exception is where the hospital staff knows that the doctor's orders

are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the

correctness of the orders." (tlagengast v. Samaritan Hosp., 211 AD2d 878,880 [3d Dept. 1995],

quoting Pollicina v. Misericordia Hosp. Med. Ctr., 158 AD2 194 [PIDept. 1990][internal

quotation marks omitted]; Sela v. Katz, 78 AD3d 681 [2d Dept. 2010]; Martinez v. LaPorta, 50

AD3d 976 [2d Dept 2008]; Filippone v. St. Vincent's Hosp. and Medical Center of New York,

253 AD2d 616 [1sl Dept 1998]; Toth v. Community Hosp. at Glen Cove, 22 NY2d 255 [1968]).

On this record, Memorial failed to set forth sufficient evidentiary proof that the surgeon's

orders were not "clearly contraindicated by normal practice."

Memorial submits the unsigned depositions of Ms. Volke's surgeon, anesthesiologists,

and surgical technician.2 Because these depositions are neither signed nor admissible pursuant to

CPLR §3116(a)'s 60 day exchange provision, they offer no support on this motion. (Marmer v.

IF USA Exp., Inc., 73 AD3d 868 [2 Dept. 2010]; McDonald v. Mauss, 38 AD3d 727 [2d Dept.

2007]; Pina v. Flik Intern. Corp., 25 AD3d 772 [2 Dept. 2006]; Scotto v. Marra, 23 AD3d 543 [2

Dept. 2005]; Martinez v. 123-16 Liberty Ave. Realty Corp., 47 AD3d 901 [2 Dept. 2008]).

Similarly, because Memorial's attorney's affidavit is not based upon "personal knowledge of the

operative facts [it is of no] ... probative value." (2 North Street Corp. v. Getty Saugerties Corp.,

68 AD3d 1392 [3d Dept. 2009]; Groboski v. Godfroy, 74 AD3d 1524 [3d Dept. 2010]).

Memorial's further reliance on the opinion expressed by David Kim, is similarly

unavailing. Although Kim alleged that he attached a copy of his cirriculum vite to his affidavit,

no such document was attached. Moreover, he neither explains nor substantiates his allegation

2 Respectively Kelly Dennin, David Girvan, Hiesook Sacca and Diane Golla.

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that he is "a physician ... [and is] Board Certified in Anesthesiology." On such bare unsupported

allegations, Memorial failed to demonstrate that Kim is "possessed of the requisite skill, training,

education, knowledge or experience from which it can be assumed that the opinion [he] rendered

is reliable." (Postlethwaite v. United Health Services Hospitals, Inc., 5 AD3d 892, 895 [3d Dept.

2004], quoting Matter ofEnu v. Sobol, 171 AD2d 302 [3d Dept. 1991]; Matott v. Ward, 48

NY2d 455 [1979]; People v. Burt, 270 AD2d 516 [3d Dept. 2000]). Moreover, even if Kim's

opinions were admissible, he failed to express a specific opinion that the surgeon's orders were

not clearly contraindicated by normal practice. Rather, his largely theoretical discussion of

control and responsibility in an operating room do not sufficiently support his overly generalized

opinion that "any and all applicable standards of care" were "met and/or exceeded."

Despite the above defects, Memorial has properly submitted conformed copies of Todd

Antifaiffand Christina Smith's3 (both Memorial nurses who assisted at Ms. Volke's surgery)

deposition transcripts, with signed errata sheets. Such proof, however, failed to demonstrate

Memorial's entitlement to judgment as a matter oflaw.

Mr. Antifaiffwas the circulating nurse for Ms. Volke's surgery. His role was to maintain

patient safety and comfort, along with performing specific tasks for the surgeon. He was present

for and participated in Ms. Volke's surgery, and observed all of the conditions that led to this

surgical fire. Mr. Antifaiffs testimony did not establish, however, that the surgeon's orders for

Ms. Volke were not clearly contraindicated by normal practice.

Nor did the testimony of Ms. Smith. She testified that she was the surgeon's physician's

assistant for Ms. Volke's surgery, and detailed her involvement. Although she testified that she

3Hereinafter referred to as Mr. Antifaiff and Ms. Smith respectively.

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observed no condition, at the time of the surgery, that she believed posed a safety risk to Ms.

Volke. She recognized, during her deposition, that Ms. Volke's surgery created a "perfect storm"

for a surgical fire. Again, Ms. Smith's deposition does not establish, as a matter of law, that the

surgeon's orders for Ms. Volke's surgery were not clearly contraindicated by normal practice.

As such, Memorial failed to demonstrate its entitlement to judgment as a matter of law

dismissing Plaintiffs' complaint, and its motion for summary judgment is denied.

Turning next to Plaintiffs' motion for summary judgment on Memorial's liability,

Plaintiffs sufficiently demonstrated that the surgeon's "orders [were] so clearly contraindicated

by normal practice that ordinary prudence require[ d] inquiry into the correctness of the orders."

iliagengast v. Samaritan Hosp., supra 880).

In support of their motion, Plaintiffs offer the affidavit of Dorothy Megnia (hereinafter

"Ms. Megnia"). She set forth her qualifications, which sufficiently qualify her to offer expert

opinions relative to operating room nurses. She further relied upon the admissible deposition

testimonies of Cheryl Bouschor (hereinafter "Ms. Bouschor"), Mr. Antifaiff and Ms. Smith,

along with the written standards applicable to Memorial's nurses and its training materials.

Ms. Megnia first established the circumstances surrounding the fire that injured Ms.

Volke; relying on the deposition testimonies of Mr. Antifaiff and Ms. Smith, who were both

personally present for the surgery. Mr. Antifaiffwas present when the surgeon prepped the

surgical field by clipping Ms. Volke's hair, and Ms. Smith observed a hair within the surgical

field during the surgery. Both also observed that the surgical field had be prepped with

Chloraprep. Further, Mr. Antifaiff established that Ms. Volke was receiving oxygen during her

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surgery.4 Additionally, both testified that the surgeon used an electrocautery device for this

surgery, a tool that produces heat and can spark.

With a hair in the surgical field, prepped with Chloraprep, and Ms. Volke receiving

oxygen, Ms. Megnia sufficiently demonstrated that the surgeon's use of the electrocautery device

was clearly contraindicated.

As established by Ms. Bouschor, Memorial's nurse educator for registered nurses,

AORN's5 standards and recommendations applied to Memorial's nurses. AORN's 2009

Peri operative Standards and Recommended Practices (hereinafter "PSRP"), as submitted by Ms.

Megnia, recommends that electrocautery devices "should not be used in the presence of

flammable agents ... Alcohol based skin prep agents are particularly hazardous because the

surrounding hair or fabric can become saturated .... This has led to fires and patient injuries.

Using nonflamable prep agents eliminates this risk." The surgeon's use of the electrocautery

device with Chloraprep was clearly contraindicated by such recommendation because, according

to Chloraprep's Material Safety Data Sheet (hereinafter "MSDS"), it consists of 70% Isopropyl

Alcohol. The MSDS also specifically recommends that the "product [be kept] away from heat,

sparks and flames."

The PSRP also advises that an electrocautery device "should not be used in an oxygen

enriched environment." Again, Ms. Volke's receipt of oxygen while the surgeon used the

electrocautery device, according to AORN's recommendations, was clearly contraindicated.

4Although Ms. Smith denied knowing that Ms. Volke was receiving oxygen during hersurgery, she did testify that when she observed the fire she yelled to the anesthesiologist to turnoff the oxygen.

5Association of Peri operative Registered Nurses.

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Memorial's own nurse training materials similarly demonstrate that the surgeon's use of

an electrocautery device in this instance was clearly contraindicated. Memorial provides its

nurses and technicians with yearly training through "self-learning modules." Plaintiffs submit

Memorial's 2009 selflearning module for "Principals of Electrosurgery," applicable here

because the surgeon was using an electrocautery device. It specifically stated that "[f]lammable

preparation agents and germicides (such as acetone and alcohol), should not be used prior to

electrosurgery", and stated "[a]void oxygen enriched environments."

Mr. Antifaiff and Ms. Smith also acknowledged their responsibility for patient safety.

Mr. Antifaiff stated that if he had observed an unsafe condition or a situation that could result in

a surgical fire, he would have brought it to the surgeon's attention. Ms. Smith similarly testified

that it was her responsibility to advise the surgeon about any safety risks. Despite the above

standards, training and circumstances, neither Mr. Antifaiff nor Ms. Smith inquired into the

correctness of the surgeon's use of an electrocautery device with a hair in the surgical field that

was prepped with Chloraprep one a patient receiving oxygen.

On this record, Plaintiffs sufficiently demonstrated that "the [surgeon's] orders [were] so

clearly contraindicated by normal practice that ordinary prudence require[d the hospital's staff to

inquire] into the correctness of the orders." (tlagengast v. Samaritan Hosp., supra 880). Thus,

Plaintiffs demonstrated Memorial's liability as a matter of law, thereby shifting the burden to

Memorial.

In opposition, Memorial failed to raise a triable issue of material fact. Memorial's

arguments and Dr. Kim's allegations relative to the surgeon and anesthesiologist's control over

the conditions that caused the fire, are wholly unavailing. The issue is not control, but rather

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whether the surgeon's orders were so clearly contraindicated by normal practice that ordinary

prudence required an inquiry into the correctness of such orders. Even considering Memorial's

otherwise inadmissible deposition transcripts, at her deposition the surgeon acknowledged being

aware of each of the factors that she believed contributed to the fire. She applied the Chloraprep,

she observed a hair in the surgical field, she saw the electrocautery device she was using spark

and did not instruct the anesthesiologist to discontinue oxygen. Despite these clearly

contraindicated orders, Memorial's staff did not inquire into their correctness. As such,

Memorial raised no triable issue of fact as to its liability in this action.

Accordingly, Plaintiffs' motion is granted.

This Decision and Order is being returned to the attorneys for Plaintiffs. A copy of this

Decision and Order and all other original papers submitted on this motion are being delivered to

the Albany County Clerk for filing. The signing of this Decision and Order shall not constitute

entry or filing under CPLR §2220. Counsel is not relieved from the applicable provision of that

section respecting filing, entry and notice of entry.

So Ordered.

Dated: March 'r ,2011Albany, New York

PA PERS CONSIDERED:1. Notice of Motion, dated January 5, 2011, Affidavit of Kelly Monroe, dated January 5,

2011, with attached Exhibits "A" - "M"; Affirmation of David Kim, dated December 13,2010.

2. Notice of Cross Motion, dated January 27,2011; Affidavit of Dorothy, Megnia, datedJanuary 26, 2011, with attached Exhibits "1" - "13".

3. Reply Affidavit of Kelly Monroe, dated February 1,2011, with attached Exhibit "A".

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