In a medical malpractice action involving a myriad of complex theories of professional negligence against a visiting nurse service, two separate hospitals, infectious disease physicians and our client, an Emergency Department physician at one of the hospitals, Partner Juan C. Gonzalez successfully argued in the Appellate Division, First Department, that the motion court erred in denying our client summary judgment, resulting in reversal and dismissal of the complaint against the client.
After being discharged from a downstate hospital for a severe, life-threatening infection on a two-week IV course of Gentamicin and other life-saving treatment, at her election plaintiff’s care was transferred to her PCP in upstate New York and was instructed to follow-up if she developed any side effects from the antibiotics or other complications and/or present to an ED for any acute conditions. Plaintiff’s theory against the downstate hospital included, among other things, that her infectious disease caregivers did not educate and warn her about the potential link between any Gentamicin-induced dehydration and reduced renal function or damage. A day after her downstate discharge, plaintiff presented to the ED of our client’s upstate hospital with severe vomiting, dehydration and nausea. The patient was kept under close monitoring for 5 hours and with examination, appropriate treatment and lab results, was progressively stabilized until her symptoms fully resolved. The patient was discharged with similar instructions to follow up with her PCP and infectious disease physician if symptoms recur, which they did within 48 hours. As instructed, she followed up with her PCP (non-party) and a few days later, underwent additional testing. As to our ED physician client (and vicariously, the upstate hospital), plaintiff alleged that an acute kidney injury was not appreciated and that our client should have consulted with ID specialists (either within the facility or with plaintiff’s discharging ID team at the downstate hospital) for guidance on further treatment, and that as a result, our client “created a lost opportunity to avoid further acute kidney injury”.
Juan successfully argued in the First Department that plaintiff failed to proffer record-based, non-speculative expert evidence sufficient to address that our client assumed a duty of care greater than that required of an emergency physician – to stabilize and arrange, as necessary, for further care; that plaintiff was in fact stabilized and instructed to follow up with her caregivers (which she did); that the lab results of the ED visit themselves were inconclusive of any kidney insult or renal failure, and that, in any event, as to causation, plaintiff’s expert candidly admitted that had our client consulted with ID, there was insufficient evidence to support any expert opinion as to what ID would have done with regard to the patient’s remaining Gentamicin course, what any further testing or labs would have been done or revealed, or how or to what extent, if any, plaintiff’s outcome would have been mitigated or different.
The First Department agreed that plaintiff’s expert’s opinions were impermissibly speculative and insufficient to defeat summary judgment, and therefore reversed the order and dismissed the complaint in its entirety as against our client.