Hiegel v. Orange Reg'l Med. Ctr.

219 A.D.3d 910

195 N.Y.S.3d 720

Michelle HIEGEL, etc., appellant,

v.ORANGE REGIONAL MEDICAL CENTER, et al., respondents.

2019-06737, 2019-07951, 2020-01874

Index No. 151/16

Supreme Court, Appellate Division, Second Department, New York.

Argued—April 17, 2023

August 30, 2023

Kramer, Dillof, Livingston, and Moore, New York, NY (Matthew Gaier and Pani Vo of counsel), for appellant.

Martin Clearwater & Bell, LLP, New York, NY (Barbara D. Goldberg, John J. Barbera, and Michael F. Bastone of counsel), for respondent Orange Regional Medical Center.

Vigorito, Barker, Patterson, Nichols and Porter, LLP, Garden City, NY (Megan A. Lawless of counsel), for respondents Pamela Murphy, Pamela J. Murphy, MD FACEP, PLLC, and Orange Emergency Services, P.C.

Catania, Mahon & Rider, PLLC, Newburgh, NY (Jeffrey S. Sculley of counsel), for respondents Elena Kaznatcheeva and Middletown Medical, P.C.

VALERIE BRATHWAITE NELSON, J.P., ROBERT J. MILLER, WILLIAM G. FORD, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for medical malpractice, etc., the plaintiff appeals from (1) an order of the Supreme Court, Orange County (Maria Vasquez–Doles, J.), dated April 4, 2019, (2) a judgment of the same court dated May 22, 2019, and (3) a judgment of the same court entered November 22, 2019. The order, insofar as appealed from, granted those branches of the separate motions of the defendant Orange Regional Medical Center, the defendants Pamela Murphy, Pamela J. Murphy, MD FACEP, PLLC, and Orange Emergency Services, P.C., and the defendants Elena Kaznatcheeva and Middletown Medical, P.C., which were for summary judgment dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against each of them. The judgment dated May 22, 2019, insofar as appealed from, upon the order, is in favor of the defendants Elena Kaznatcheeva and Middletown Medical, P.C., and against the plaintiff dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against those defendants. The judgment entered November 22, 2019, insofar as appealed from, upon the order, is in favor of the defendant Orange Regional Medical Center and against the plaintiff dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against that defendant.

ORDERED that the appeal from so much of the order as granted those branches of the separate motions of the defendants Elena Kaznatcheeva and Middletown Medical, P.C., and the defendant Orange Regional Medical Center which were for summary judgment dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against each of them is dismissed; and it is further, ORDERED that the order is reversed insofar as reviewed, on the law, and those branches of the motion of the defendants Pamela Murphy, Pamela J. Murphy, MD FACEP, PLLC, and Orange Emergency Services, P.C., which were for summary judgment dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against them are denied; and it is further,

ORDERED that the judgment dated May 22, 2019, is reversed insofar as appealed from, on the law, those branches of the motion of the defendants Elena Kaznatcheeva and Middletown Medical, P.C., which were for summary judgment dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against them are denied, the complaint is reinstated against those defendants insofar as it asserts causes of action alleging medical malpractice, wrongful death, and loss of services against them, and the order is modified accordingly; and it is further,

ORDERED that the judgment entered November 22, 2019, is reversed insofar as appealed from, on the law, those branches of the motion of the defendant Orange Regional Medical Center which were for summary judgment dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against it are denied, the complaint is reinstated against that defendant insofar as it asserts causes of action alleging medical malpractice, wrongful death, and loss of services against it, and the order is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff, payable by the respondents appearing separately and filing separate briefs.

The appeal from so much of the order as granted those branches of the separate motions of the defendants Elena Kaznatcheeva and Middletown Medical, P.C., and the defendant Orange Regional Medical Center which were for summary judgment dismissing the causes of action alleging medical malpractice, wrongful death, and loss of services insofar as asserted against each of them must be dismissed because the right of direct appeal therefrom terminated with entry of the judgments in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647 ). The issues raised on the appeal from those portions of the order are brought up for review and have been considered on the appeals from the judgments (see CPLR 5501[a][1] ).

On November 20, 2014, Charles Brennan (hereinafter the decedent), believing himself to be suffering symptoms of a stroke, called 911 for assistance. He was subsequently transported to the defendant Orange Regional Medical Center (hereinafter ORMC) by ambulance. During the ambulance ride, Emergency Medical Services (hereinafter EMS) providers noted that the decedent's symptoms were becoming more pronounced and contacted ORMC with a stroke alert. Upon his arrival at ORMC, the decedent was given a CT scan and assessed by an attending emergency room physician, the defendant Pamela Murphy, and a neurologist, the defendant Elena Kaznatcheeva. Murphy and Kaznatcheeva independently performed the National Institute of Health Stroke Scale exam on the decedent and assessed him with different scores for different positive findings, but both determined that the decedent's symptoms, which they claimed had improved, not deteriorated, since the time EMS arrived at the decedent's home, were not severe enough to warrant the administration of tissue plasminogen activator (hereinafter tPA), a thrombolytic medication used to break up clots. The decedent's condition declined throughout the evening, and he was admitted to the hospital. Early the next morning, a code blue was...