Reid v. Soults

138 A.D.3d 1087

31 N.Y.S.3d 527

2016 N.Y. Slip Op. 03154

Thomas P. REID, etc., respondent,

v.Clifford B. SOULTS, etc., et al., appellants, et al., defendants.

2014-04429, Index No. 14132/09.

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

April 27, 2016.

Westermann, Sheehy, Keenan, Samaan & Aydelott, LLP, White Plains, N.Y. (Timothy M. Smith and Jennifer J. Bennice of counsel), for appellants Clifford B. Soults and Adirondack Neurosurgical Specialists, P.C.

Vouté, Lohrfink, Margo & McAndrew, LLP, White Plains, N.Y. (John R. Braunstein of counsel), for appellants Sushma Kaul and Pulmonary Critical Care Associates, LLP, also known as Pulmonary & Critical Care Associates.

O'Connor, McGuiness, Conte, Doyle, Oleson, Watson & Loftus, LLP, White Plains, N.Y. (Montgomery L. Effinger of counsel), for appellants Roger P. Bowers, Louis J. Talarico, Raphael J. Alcuri, Mohawk Valley Imaging, P.C., and St. Elizabeth Medical Center, also known as St. Elizabeth Hospital.

Pirrotti & Glatt Law Firm PLLC, Scarsdale, N.Y. (Anthony Pirrotti, Jr., of counsel), for respondent.

L. PRISCILLA HALL, J.P., JEFFREY A. COHEN, HECTOR D. LaSALLE, and FRANCESCA E. CONNOLLY, JJ.

In an action to recover damages for medical malpractice, lack of informed consent, and wrongful death, (1) the defendants Clifford B. Soults and Adirondack Neurosurgical Specialists, P.C., appeal from so much of an order of the Supreme Court, Westchester County (Wood, J.), dated March 19, 2014, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them, (2) the defendants Sushma Kaul and Pulmonary Critical Care Associates, LLP, also known as Pulmonary & Critical Care Associates, separately appeal, as limited by their brief, from so much of the same order as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, and (3) the defendants Roger P. Bowers, Louis J. Talarico, Raphael J. Alcuri, Mohawk Valley Imaging P.C., and St. Elizabeth Medical Center, also known as St. Elizabeth Hospital, separately appeal, as limited by their brief, from so much of the same order as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Roger P. Bowers, Louis J. Talarico, Raphael J. Alcuri, and Mohawk Valley Imaging, P.C., and dismissing the cause of action alleging lack of informed consent insofar as asserted against the defendant St. Elizabeth Medical Center, also known as St. Elizabeth Hospital.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the motion of the defendants Clifford B. Soults and Adirondack Neurosurgical Specialists, P.C., which was for summary judgment dismissing the cause of action alleging lack of informed consent insofar as asserted against them and substituting therefor a provision granting that branch of the motion, (2) by deleting the provision thereof denying the motion of the defendants Sushma Kaul and Pulmonary Critical Care Associates, LLP, also known as Pulmonary & Critical Care Associates, for summary judgment dismissing the complaint insofar as asserted against them and substituting therefor a provision granting the motion, and (3) by deleting the provision thereof denying those branches of the motion of the defendants Roger P. Bowers, Louis J. Talarico, Raphael J. Alcuri, Mohawk Valley Imaging, P.C., and St. Elizabeth Medical Center, also known as St. Elizabeth Hospital, which were for summary judgment dismissing the complaint insofar as asserted against the defendants Roger P. Bowers, Louis J. Talarico, Raphael J. Alcuri, and Mohawk Valley Imaging, P.C., and dismissing the cause of action alleging lack of informed consent insofar as asserted against the defendant St. Elizabeth Medical Center, also known as St. Elizabeth Hospital, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiffs to the defendants Roger P. Bowers, Louis J. Talarico, Raphael J. Alcuti, Mohawk Valley Imaging, P.C., and St. Elizabeth Medical Center, also known as St. Elizabeth Hospital, and to the defendants Sushma Kaul and Pulmonary Critical Care Associates, LLP, also known as Pulmonary & Critical Care Associates, appearing separately and filing separate briefs.

On the evening of July 21, 2007, the plaintiff's decedent was admitted to the Emergency Department of the defendant St. Elizabeth Medical Center, also known as St. Elizabeth Hospital (hereinafter the Hospital), with head trauma following an ATV accident. The defendant Clifford B. Soults, a neurosurgeon who was on call that night, examined the decedent and reviewed his CT scan. Soults determined that although the decedent had sustained a traumatic brain injury, surgical intervention was not required at that point. The next day, the defendant physician Sushma Kaul saw the decedent for a pulmonary consultation to advise about ventilator settings and eventually weaning the decedent off the ventilator. Soults ordered observation in the intensive care unit (hereinafter the ICU) and CT scans over the next several days. After July 24, 2007, Soults did not order any additional CT scans based on his determination that the decedent's neurological condition had stabilized. On July 27, 2007, the decedent was extubated, taken off the ventilator, and moved out of the ICU. On July 28, 2007, the decedent's condition deteriorated and he lost consciousness. The decedent was returned to the ICU, reintubated, and put on a ventilator. An emergency CT scan was performed, which showed increased diffuse cerebral edema that was impacting his brain stem. The decedent's intracranial pressure became uncontrollable, and he died at the Hospital on July 30, 2007.

Thereafter, the plaintiff, the decedent's father and the administrator of the decedent's estate, commenced this action individually and on the decedent's behalf against, among others, the Hospital, Soults, and Kaul, as well as radiologists Roger P. Bowers, Louis J. Talarico, and Raphael J. Alcuri, and their practice Mohawk Valley Imaging, P.C. (hereinafter collectively the radiologists), to recover damages...