Vaccaro v St. Vincent’s Med. Ctr., 2010 NY Slip Op 02547 (2d Dept. 2010).
It is probably a deviation of the standard of care as limited by this appeal to perform spinal surgery without the assistance of SSEP testing, so intimates the Appellate Division.
“However, the Supreme Court erred in granting that branch of the Hospital’s motion which was for summary judgment dismissing the complaint insofar as asserted against it. Initially, we note that the record contains conflicting evidence as to whether SSEP monitoring was actually performed during the surgery. The hospital record, operative report, and Dr. Rubio-Gonzalez’s testimony all support the conclusion that SSEP monitoring was performed throughout the surgery. However, the deposition testimony of Dr. Shiau and Osborn is to the contrary. Dr. Shiau testified that SSEP monitoring was not necessary “in a case like this” and that he neither intended to, nor did, have such monitoring conducted during the surgery, his operative report stating that SSEP monitoring was performed throughout the surgery notwithstanding. Osborn testified that while she attempted to use the SSEP machine made available to her at the Hospital to monitor Vaccaro, attached the electrodes to Vaccaro, and remained in the operating room for about 30 minutes after Vaccaro was anesthetized, when she was unable to obtain a baseline reading for Vaccaro, Dr. Shiau told her to “wrap it up,” at which point she left the operating room.
The plaintiffs’ anesthesiology expert opined that Vaccaro’s surgery required SSEP monitoring and the Hospital had an obligation to ensure that a properly working SSEP monitoring machine was “readily available in the operating room.” The plaintiffs’ neurosurgery expert concurred. Accordingly, since the Hospital did not demonstrate the absence of any issues of fact as to whether its alleged failure to provide SSEP monitoring was a deviation from the acceptable standard of care, it did not meet its prima facie burden of establishing its entitlement to judgment as a matter of law with respect to that theory of liability (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). [*3]
Moreover, the Hospital failed to demonstrate its entitlement to judgment as a matter of law with respect to the plaintiffs’ claim that it negligently permitted Dr. Shiau to utilize the Met-RX procedure in performing the surgery. Initially, contrary to the Hospital’s contention, this theory of liability was originally asserted in the original complaint and amplified in the bill of particulars. The Hospital demonstrated its prima facie entitlement to judgment as a matter of law by submitting the affirmation of its neurosurgery expert, who opined that the Hospital did not erroneously permit Dr. Shiau to utilize the Met-RX procedure because it was FDA approved, and the decision to use it was “within the sole province of the operating surgeon.” In opposition, however, the plaintiffs raised a triable issue of fact through, inter alia, Dr. Shiau’s deposition testimony that the Hospital permitted him to use the system, but never inquired into his background and training with the procedure, and that he had used the system in cervical spine surgery only once or twice before, as well as the affirmation of the plaintiffs’ neurosurgery and anesthesiology experts, who opined that the Hospital failed to undertake due diligence in determining whether Dr. Shiau had the requisite training and experience to utilize the procedure in cervical spinal surgery.
The Supreme Court also erred in awarding summary judgment dismissing the complaint insofar as asserted against Dr. Rubio-Gonzales. Dr. Rubio-Gonzales demonstrated her prima facie entitlement to judgment as a matter of law by submitting the affirmation of Dr. Elizabeth Frost, an anesthesiologist. Dr. Frost opined, based on her review of the record herein and Vaccaro’s medical records, that Dr. Rubio-Gonzales’s administration of anesthesia fully conformed with accepted medical practice. In opposition to her prima facie showing, the plaintiffs submitted the expert affirmation of an unidentified anesthesiologist, who opined that SSEP monitoring was required because the surgery involved a risk of injury to the spinal cord, that both Dr. Shiau and Dr. Rubio-Gonzales knew that it was required, and that, if the monitor was not working, both Dr. Shiau and Dr. Rubio-Gonzales had an obligation to cancel the surgery. In the expert’s opinion, the failure of these two physicians to cancel the surgery under those conditions constituted a departure from the acceptable standard of care. Specifically, with respect to Dr. Rubio-Gonzales, the expert stated, “[it] is . . . the attending anesthesiologist’s responsibility to familiarize himself/herself with the demands of a particular surgery especially when the surgery is going to be performed with novel, and fundamentally limiting equipment, and to stop the surgeon from performing an elective procedure when necessary monitoring equipment is not being used.” Therefore, the plaintiffs raised a triable issue of fact as to whether Dr. Rubio-Gonzales should have intervened if Dr. Shiau proceeded without SSEP monitoring (see Warney v Haddad, 237 AD2d 123, 123-124).
The Supreme Court also erroneously granted the motion of Healthcare, Neuroscience, and Osborn (hereinafter collectively the Healthcare defendants) for summary judgment dismissing the complaint insofar as asserted against them based upon its conclusions that SSEP monitoring was not conducted during the surgery and that Osborn had no duty to independently determine whether SSEP monitoring should be performed on a patient. Contrary to the Healthcare defendants’ contention that no monitoring took place, as noted above, a factfinder could reasonably determine that SSEP monitoring was performed, and the plaintiffs alleged that, if the monitoring was performed, Osborn performed it in a negligent manner, which represented a deviation from the accepted standard of care and proximately caused Vaccaro’s injury. Since the Healthcare defendants did not address the allegation that Osborn negligently performed the monitoring, they failed to establish their prima facie entitlement to judgment as a matter of law.”
Has anyone seen a court hold that is a breach of the standard of care not to perform SSEP testing when treating someone for trauma based injuries, relating to a motor vehicle accident? This is a good line of questioning – as appropriately phrased – for a plaintiff’s reubuttal witness on this topic.
