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ORDERSUPREME COURT OF THE STATE OF NEW YORK

Present: BON. TAMMY S. ROBBINS, Acting JusticeTRIAL/lAS , PART 47

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ROSEMARIE DISPIGNO and VITO DISPIGNO

Plaintiffs- against - IndeJ( No. 7209/04

Motion Seq. 001Motion submission: 4/10/06

RENA TO B. BERROY A , LONG ISLAND SURGICALSPECIALISTS, P. , EUGENE W. SEGALL, and

ST. FRANCIS HOSPITAL

Defendants-------------------------------------------------------------------------- J(

Defendants RENATO B. BERROYA , LONG ISLAND SURGICAL SPECIALISTS,

EUGENE W. SEGALL , and ST. FRANCIS HOSPITAL has moved this court, pursuant to CPLR g

3212 for an order granting summary judgment to defendants. Plaintiffs have submitted an

Affrmation in Opposition. This decision references the affrmation of Eric S. Strober (herein

Strober Aff.) and the affrmation of Robert B. Jackson (herein Jackson Aff.

This is a personal injury action sounding in medical malpractice. The plaintiff Rosemarie

Dispigno (referred to herein as "the plaintiff') had a medical history of congestive heart failure

uncontrolled diabetes , spinal stenosis, hypertension, hypothyroidism , peripheral neuropathy,

peripheral vascular disease and hypercholesterolemia. In August of 1999 , she underwent a triple

bypass at St. Francis Hospital. In April of 2000 , the plaintiff underwent cardiac catheterization at St.

Francis Hospital. On July 6 , 2000 , the plaintiff underwent a left-sided carotid (a major artery in the

neck that supplies blood to the brain) endarterectomy (a surgical procedure designed to clean out

material occluding an artery, done on the carotid, to restore normal blood flow). Defendant Dr.

Renato Berroya performed the surgery at defendant St. Francis Hospital. In December of 2000

January of2001 and February of2001 , the plaintiff received steroid injections for spinal stenosis. In

November of2001 , the plaintiff underwent a second carotid endarterectomy, this time on her right

side, performed by Dr. Renato Berroya at St. Francis Hospital. Dr. Eugene Segall performed

general anesthesia.

As a result of the second carotid endarterectomy, performed on the right side ("the surgery

plaintiff alleges that she sustained numerous injuries. On May 24 , 2004 , plaintiff commenced this

medical malpractice action by fiing and serving upon defendant her Summons and Complaint

alleging that the named defendants were negligent in her care and treatment, that there was a lack of

informed consent, and that plaintiffs husband suffered loss of services. Plaintiff claims all these

actions or omissions of defendants resulted in her sustaining injury. It is not disputed that plaintiff

was known to be allergic to penicilln at the time the surgery was performed.

Defendants ' Motion - The Administration of Kefzol

Defendants now move for summary judgment alleging that Dr. Segall was not negligent

when he administered the antibiotic Kefzol to the plaintiff. Defendants provide the affdavit of Dr.

Bluth , a board certified anesthesiologist who states that the administration of Kefzol was not a

departure from good and accepted practice. Defendants contend that even if the plaintiff had an

allergic reaction to Kefzol , this did not cause the claimed injuries.

Defendants ' Motion - The Carotid Endarterectomy

Additionally, defendants argue that plaintiffs injuries were not the result of the carotid

endarterectomy. Defendants offer the affdavits of Dr. Vishnubhakat, a neurologist, and Dr.

Myssiorek, an ENT. Dr. Myssiorek states that plaintiffs complaints following the second carotid

endarterectomy are not consistent with an injury to the hypoglossal nerve or an allergic reaction. Dr.

Myssiorek states that plaintiffs complaints and symptoms are consistent with an organic process

unrelated to and predating her surgery. Dr. Vishnubhakat states that the plaintiff does not suffer

from the injuries claimed to have been caused by the surgery. He states that the plaintiffs

neurological eJ(amination post operatively was within normal limits, and there was no evidence of

adverse neurological or other adverse sequelae attributable to the surgery.

Defendants ' Motion - Informed Consent

As to plaintiffs lack of informed consent claim, defendants maintain that according to the

affidavit of Dr. Vishnubhakat, Dr. Berroya communicated to the plaintiff the reasonably foreseeable

risks, benefits and alternatives that a reasonable physician would disclose prior to carotid

endarterectomy surgery. Defendants state that the plaintiff herself testified that she readily accepted

the risks of a stroke, brain damage and death in consenting to the surgery and that there was no

alternative to the surgery.

Plaintiffs ' Opposition- The Administration of Kefzol

Plaintiffs argue that the plaintiff Rosemarie Dispigno suffered injury as a result of the

administration of Kefzol. First, plaintiffs claim that according to the defendants own testimony,

there was a departure from the accepted standards of care by administering the Kefzol. Plaintiffs

state that Dr. Segall testified that he was aware that plaintiff was allergic to penicilin, that

individuals with such allergies can have cross-over reactions to Kefzol, and that he would not have

given the plaintiff Kefzol without first discussing it with Dr. Berroya. However, Dr. Segall testified

that he could not recall having a discussion with Dr. Berroya or whose idea it was to administer the

Kefzol. Dr. Berroya documented plaintiffs allergic reaction. Plaintiffs argue that Dr. Berroya had

an affrmative obligation to be aware of and to approve the medications given to the patient.

Secondly, plaintiffs contend that although defendants argue that the allergic reaction was

not due to Kefzol , the signs and symptoms ofplaintiffs allergic reaction were documented in the

records of St. Francis Hospital. Plaintiffs contend that defendants have not offered any alternative

causes for the signs or symptoms of plaintiff s allergic reaction. Plaintiffs refer to defendants

eJ(pert affdavit of Dr. Bluth who states that even ifthere was an allergic reaction, it would have

been a transient event with no permanent adverse medical effects. Plaintiffs contend that this

statement merely points to the duration or the severity ofthe injuries sustained , where the issue is

whether the plaintiff sustained any injury as a result of the allergic reaction. Plaintiffs argue that Dr.

Bluth' s statement directly contradicts defendants ' grounds for summary judgment in that defendants

contend that the plaintiff did not suffer any injury as a result of the Kefzol.

NeJ(t, plaintiffs refer to the defendants ' eJ(pert Dr. Myssiorek who states that the injuries

sustained by the plaintiff are not the result of receiving Kefzol but rather are due to an underlying

disease pathology which predated the surgery. There are no medical records submitted in support of

this theory and there are no reports from medical practitioners diagnosing or suspecting a diagnosis

of this underlying disease pathology. Additionally, plaintiffs observe that the notes of Dr. Mra, an

ENT who evaluated plaintiff in the hospital three days after the surgery, indicates that there was an

anterior tongue edema. Dr. Mra also noted that she suspected the cause of the patient's complaints

to be an allergic reaction to Kefzol. Plaintiffs conclude that the affdavits of their eJ(perts Dr. Katz

and Dr. Schwartz along with the medical records, Dr. Mra s observations, and the defendants ' own

testimony all support the finding that the defendants depared from the accepted standards of care by

administering Kefzol which resulted in injury to the plaintiff.

Plaintiffs ' Opposition-The Carotid Endarterectomy

Plaintiffs ' maintain that the patient' s symptoms of slurred speech and diffculty swallowing

as noted by St. Francis Hospital records after the surgery is consistent with a cranial nerve XII

injury. Plaintiffs ' eJ(pert claims that Dr. Berroya made numerous departures from accepted

standards of practice in performing plaintiffs surgery (see Jackson Aff. EJ(hibit L). Dr. Schwartz

finds that Dr. Berroya failed to connect the patient to an electroencephalograph while she was under

general anesthesia, failed to have a second surgeon trained in the procedure present or available

failed to have the nursing staff place folded towels between the patient' s shoulder blades to faciltate

eJ(tension of the neck in preparation for the first incision , failed to hypereJ(tend the patient' s neck to

facilitate eJ(posure of the carotid artery, failed to perform preoperative angiography to determine the

relationship ofthe eJ(ternal and internal carotid arteries, or the location of the carotid bifurcation

failed to identify and mobilize the hypoglossal nerve , failed to visualize and palpate the carotid

artery, failed to draw the proposed arteriotomy line along the vessel, failed to document the surgery

done to obtain the saphenous vein to create a vein patch, and failed to test the patency ofthe repair

with a Doppler (Id.

).

Plaintiffs contend that Dr. Berrayo failed to fully identify structures

particularly the cranial nerve XII. As a result he blindly operated and severed the hypoglossal nerve

during the surgery causing permanent injury to plaintiff.

Plaintiffs ' Opposition- Informed Consent

Dr. Berrayo testified as follows:

When you start eJ(posing the carotid artery,you see the hypoglossal nerve. If it' s a normallocation , you just kind of point it out to yourassistants, don t go there , it's right there.Usually it's eJ(actly where it is. It's very unusualif it's located elsewhere.. .It usually crosses overthe eJ(ternal carotid artery ... it' s way out of yourfield at that point

(Strober Aff. EJ(hibit E). Plaintiffs ' eJ(pert Dr. Schwartz states that the hypoglossal nerve is well

within the operative field when surgery of this type is performed (see Jackson Aff. Exhibit L). Dr.

Schwartz contends that his assertion is supported by Dr. Berroya s own statement that he visualizes

the nerve during his exposure of the carotid artery (Id.

).

As well , Dr. Schwartz states that his view is

supported by the anatomical literature which repeatedly and consistently describe cranial nerve XII

as traveling in close contiguity with the internal carotid artery (Id.

).

Plaintiffs ' contend that Dr.

Berrayo could not have fully informed the plaintiff of the risks of the operation , specifically the risk

of damage to her hypoglossal nerve, since he did not feel that the hypoglossal nerve was within the

operative field.

Additionally, plaintiffs argue that Dr. Berroya failed to adequately discuss alternatives to the

surgery performed. Although he told the plaintiff about the alternative of using a stent, he also

stated that this procedure was stil eJ(perimental and that his preference was the surgery which was

actually performed (see Strober AffExhibit E). Plaintiffs argue that this form of disclosure failed to

comply with the guidelines contemplated by g 2805-d ofthe Public Health Law.

Decision

The proponent of a summary judgment motion must make a prima facie showing of

entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material

issues of fact from the case (Winegradv New York University Medical Center 64 NY2d 851

citing Zuckerman City of New York 49 NY2d 557). Failure to make such showing

requires denial of the motion, regardless of the suffciency of the opposing papers (Id.

).

The court

must view the evidence in the light most favorable to the non-moving party and must give the non-

moving party the benefit of all reasonable inferences which can be drawn from the evidence (see

Negri Stop and Shop, 65 NY2d 625). "The requisite elements of proof in a medical malpractice

action are a deviation or departure from accepted practice and evidence that such departure was a

proJ(imate cause of injury or damage (Wicksman Nassau County Health Care Corp., et ai. , 27

AD3d 644 citing Anderson Lamaute 306 AD2d 232; DiMitri Monsouri 302 AD2d 420;

Holbrook United Hosp. Med. Cfr. 248 AD2d 358).

The Administration of Kefzol

In support of their motion, defendants submitted the affdavit of Dr. Bluth who states that the

use ofKefzol was not a departure from accepted standards of anesthesia practice

(see Strober Aff.

Exhibit G). Dr. Bluth eJ(plains that the plaintiff was documented to have an allergy to penicilin and

that it is claimed that Dr. Segall should not have used Kefzol, a prophylactic infection control during

surgery (Id.

).

Dr. Bluth eJ(plains that this assertion is incorrect. He affrms that under appropriate

monitoring, which was done in this case, and when given in the appropriate dosage, as was done in

this case, it is not a departure from accepted standards of anesthesia practice (Id.

).

Dr. Bluth states

that Dr. Segall titrated the dose and maintained careful monitoring of the plaintiff at all times during

the administration of the Kefzol with no adverse reactions (Id.

).

Dr. Bluth states that his review of

the medical records indicate that there were no resulting adverse reactions and the onset of swellng

of the tongue is not indicative of a reaction to the intra-operative antibiotic Kefzol

(Id.

).

Defendants

have made a prima facie showing through their eJ(pert's affdavit entitling them to summary

judgment as a matter of law with regard to the administration of Kefzol.

In medical malpractice actions , a plaintiff opposing a defendant physician s summary

judgment motion must submit material or evidentiary facts to rebut the physicians prima facie

showing that he or she was not negligent in treating the plaintiff'

(see Jonassen Staten Island

University Hospital 22 AD3d 805 quoting, DiMitri Monsouri 302 AD2d 420). In opposition to

the motion, plaintiffs submit the affdavits of two eJ(pert, Dr. Katz and Dr. Schwartz. Dr. Katz

states that the plaintiff suffered an allergic reaction "due to the administration of a penicilin cross

sensitive antibiotic, Kefzol , which was given despite Mrs. Dispigno s sensitivity or allergenicity to

penicilin (see Jackson Aff. EJ(hibit K). Dr. Schwartz, who did not eJ(amine the patient, refers to

the eJ(aminations of plaintiff done by other doctors and experts and the medical records of plaintiff

wherein the patient was noted to have an allergic reaction that caused acute angioedema as well as

swellng of the tongue, the mucous membranes of the nose, mouth, and throat, and the face. Dr.

Schwartz opines that Kefzol was contraindicated for the plaintiff and that the administration of

Kefzol caused her to suffer injury (Id. at EJ(hibit L). Dr. Schwartz states that it is not standard

practice to give an antibiotic during a carotid endarterectomy.

In support of their opposition, plaintiffs refer to the deposition testimony of Dr. Segall and

Dr. Berrayo. Both doctors admit that before administering the Kefzol they were aware that the

plaintiff was allergic to penicilln (see Strober Aff. EJ(hibit E , EJ(hibit F). Dr Segall admitted that he

was aware that individuals who are allergic to penicilln can also have a similar allergic reaction to

Kefzol (Id.

).

Additionally, Dr. Segall indicated that Vancomycin is an antibiotic frequently used

which is not contraindicated for individuals who have penicillin allergies (see Strober Aff. Exhibit

F). Dr. Segall also stated that he routinely discusses the administration of the antibiotic with the

surgeon (Id.

The expert opinions offered by the parties differ as to whether the Kefzol was

contraindicated. "When eJ(perts offer conficting opinions, a credibilty question is presented

requiring ajur s resolution (see Shields v. Bavtidy, 11 AD3d 671 citing Barbuto v. Winthrop

Univ. Hosp. 305 AD2d 623; Fotinas v. Westchester County Med. Ctr. 300 AD2d 437). This

court finds that factual issues exist as to whether the administration of Kefzol was contraindicated

and whether the administration of the Kefzol caused injury to the plaintiff (see Rivera Macaluso

209 AD2d 679). Defendants ' motion for summary judgment as to the claim arising out of the

administration ofKefzol is denied.

The Carotid Endarterectomy

In support of their motion, defendants have submitted the eJ(pert affdavit of Dr.

Vishnubhakat who is board certified in neurology with a subcertification in neurophysiology (see

Strober Aff. EJ(hibit I). After a full neurological eJ(amination of the plaintiff relative to her

complaints and after a review of the medical records, Dr. Vishnubhakat concludes that the plaintiff

is not suffering from any sequelae from her carotid endarterectomy surgery and that her complaints

are not consistent with trauma to the hypoglossal nerve or an allergic reaction to an antibiotic (Id.).

Defendants also offer the affdavit of Dr. Myssiorek, board certified in Otolaryngology, who

eJ(amined the plaintiff, took her medical history, and reviewed all of her medical records (see

Strober Aff. EJ(hibit H). Dr. Myssiorek states that the signs and symptoms about which the plaintiff

complains are not related to the surgery (lei. More significantly, Dr. Myssiorek continues , the

symptoms are continuing to worsen over time and are not consistent with intraoperative trauma to

the hypoglossal nerve or an allergic reaction to antibiotic (Id.

).

The symptoms, he concludes, are a

result of an underlying disease pathology that predated the surgery giving rise to this litigation (!d.

Plaintiffs contend that Dr. Myssiorek' s finding of other disease pathology is not supported with

substantial evidence. However, Dr. Myssiorek both eJ(amined the plaintiff and took her medical

history; an expert' s conclusions may be based on an eJ(amination of the patient or on the patient'

medical history (see Davis Pimm 228 AD2d 883). As to the carotid endarterectomy claim and the

resulting hypoglossal nerve injury, defendants have presented a prima facie showing through their

eJ(pert physicians ' affdavits entitling them to summary judgment as a matter oflaw.

In opposition , plaintiffs ' offer the affdavits of Dr. Katz and Dr. Schwartz. Dr. Katz states

that the plaintiff was admitted to South Nassau Communities Hospital within a month of the surgery

with what was diagnosed as hypoglossal nerve injury with dysarthria related to the right

endarterectomy (lei. Dr. Katz concludes that with a reasonable degree of medical certainty, the

plaintiffs decreased mobilty, decreased strength of the tongue, sensitivity on the right greater than

the left, and the lateralization of the tongue to the right side on projection are the result of a

hypoglossal nerve impairment sustained during the right endarterectomy (see Jackson Aff. EJ(hibit

K). Dr. Katz s affdavit is insuffcient to rebut defendants ' prima facie showing, as he does not offer

any opinion as to the surgical procedures performed by Dr. Berrayo and, he does not offer an

opinion as to whether the procedures employed by Dr. Berrayo deviated from the accepted standards

of medical practice in his treatment of the plaintiff.

Plaintiffs ' other eJ(pert , Dr. Schwartz describes numerous deviations made by Dr. Berrayo in

conducting the surgery (see Jackson Aff. EJ(hibit L). Specifically, Dr. Schwartz states that Dr.

Berrayo failed to connect the patient to an electroencephalograph, failed to have a second surgeon

trained in the procedure present or available , failed to hypereJ(tend the patient' s neck to faciltate

exposure of the carotid artery, failed to perform preoperative angiography, failed to identify and

mobilize the hypoglossal nerve, failed to visualize and palpate the carotid artery, failed to draw the

proposed arteriotomy line along the vessel , failed to document the surgery done to obtain the

saphenous vein to create a vein patch , failed to test the patency of the repair with a Doppler and

failed to fully identify structures (Id.

).

Although not all ofthe claimed departures can be deemed to

have proJ(imately caused plaintiffs injuries , Dr. Schwartz does opine that Dr. Berrayo failed to fully

identify structures, particularly the cranial nerve XII which resulted in him blindly operating and

severing the hypoglossal nerve causing permanent injury to plaintiff (ld.

Defendants argue that Dr. Schwartz is an internist, not a vascular surgeon and therefore he is

not qualified to give an opinion and critique the procedure used by Dr. Berroya. Defendants also

criticize plaintiffs ' use of Dr. Katz to claim a nerve injury. In Erbstein Savasatit, supra defendant

moved for summary judgment and submitted the affidavit of a general surgeon which stated that he

did not deviate from good and accepted standards of medical practice in his treatment of the

patient/decedent. In response, plaintiffs submitted an eJ(pert affidavit of a pathologist. The Supreme

Court denied the defendant' s motion based on a finding that the expert affdavits had raised a triable

issue of fact as to whether the defendant had departed from the proper standards of medical care

(Id.

).

The Second Department found that the "contention that the plaintiffs eJ(pert was unqualified

to give an eJ(pert opinion on the standard of care of a general surgeon merely because he was a

pathologist is without merit"(ld.). The court held that

Once a medical eJ(pert has established his or herknowledge of the relevant standards of care, heneed not be a specialist in the particular area atissue to offer an opinion. Any lack of skil orexpertise goes to the weight of his or her opinionas evidence , not its admissibility

(ld. citing Adamy Ziriakus, 92 NY2d 396; Julien Physician s Hosp. 231 AD2d 678; Ariola

Long, 197 AD2d 605). In the case before this court, the plaintiffs ' eJ(pert , Dr. Schwartz, affrms that

he has been in active practice of Internal Medicine for more than thirty five years , he is eJ(perienced

in hospital risk management and in the diagnosis and treatment of patient's with cranial nerve

impairments (see Jackson Aff. EJ(hibit L). Given the fact that " (t)he law is settled that a physician

need not be a specialist in a particular field in order to qualify as a medical expert" and render an

opinion, defendants ' arguments as to plaintiffs ' expert is without merit (see Bodensiek Schwartz

292 AD2d 411 citing Erbstein Savasatit, supra; Gordon Tishman Constr. Corp. 264 AD2d 499;

Julien Physician s Hosp. , supra). Accordingly, plaintiffs have met their burden of rebutting

defendants ' prima facie showing and summary judgment as to the malpractice claim resulting from

the carotid endarterectomy is denied.

Informed Consent

A Defendant is required to present evidence "demonstrating that the plaintiff signed a

consent form after being informed of the surgical procedure and the alternatives, as well as the

reasonably foreseeable risks and benefits (Ericson v. Palleschi 2005 WL 3193694 citing Bernard

v. Block 176 A.D.2d 843). Defendants have established that Dr. Berroya provided plaintiff with

suffcient information as to the available alternative to the procedure such that her consent can be

said to have been informed (Velez Goldenberg, - - - NYS2d - - - , 2006 WL 1343615 citing Eppel

Fredericks 203 AD2d 152). The only alternative available at the time was a stent procedure with

which Dr. Berroya was very familar since he was one of the directors of the two eJ(perimental

. programs being conducted in the United States and Canada (see Strober AffEJ(hibit E).

Furthermore, plaintiff had undergone this surgery before and she admitted that both times she was

informed of the risk of stroke.

Plaintiffs argue that Dr. Berroya failed to disclose all the material risks which a reasonable

medical practitioner "under similar circumstances would have disclosed , in a manner permitting (the

plaintiff) to make a knowledgeable evaluation (see Davis Nassau Ophthalmic Services, P. e., 232

AD2d 358). To refute defendants ' prima facie showing as to the informed consent claim , the

plaintiff is required to submit an affirmation from a medical eJ(pert (Ericson v. Palleschi, supra

citing Wilson v. Buffa 294 A.D2d 357). Plaintiffs have provided expert medical testimony alleging

that the consent was qualitatively insuffcient based on Dr. Berroya s view that the hypoglossal

nerve was not within the operating field. Plaintiffs claims that because of Dr.Berrayo s view with

regard to the hypoglossal nerve, he did not inform the plaintiff of all of the risks involved

specifically the risk to the hypoglossal nerve. The plaintiff herself testified that Dr. Berrayo told her

about the risks

, "

a lot of them" including a stroke (see Strober Aff. EJ(hibit D). Additionally, the

plaintiff stated that knowing that there was a risk of a stroke , she went forward with the surgery

because "she had to (ld.

).

Moreover, plaintiff testified that Dr. Berrayo gave the plaintiff written

material regarding the surgery and the risks. The record before this court indicates that Dr. Berrayo

disclosed the material risks, benefits, and alternatives to the surgery in a manner permitting the

plaintiff to make a knowledgeable evaluation (see Public Health Law g 2805-d).

Plaintiffs additionally claim that because Dr. Berrayo stated to the plaintiff which procedure

he preferred , she was not permitted to make a knowledgeable evaluation. However, Dr. Berrayo had

substantial medical reasons for his preference. Providing the plaintiff with his preference was in fact

providing her with knowledge to make an informed decision. The logical conclusion ofplaintiffs

argument would result in patients being given information by doctors without any assistance in

evaluating that information. Dr. Berrayo testified that he indicated his preference for the open

procedure (the surgery) as opposed to the stent procedure "(b)ecause the stent today is stil

experimental procedure and the stroke rate is higher than the open technique , and we don t even

know the fate of the stent in the carotid artery over a long haul since the procedure has only been

done a few years, as opposed to open procedure which has been studied since 1951 , so it has a long

track record (see Strober Aff. EJ(hibit E). Dr. Berrayo s statements to the plaintiff complied with

what a reasonable medical practitioner under similar circumstances would have disclosed (see

Public Health Law g 2805-d). Defendants ' motion for summary judgment as to the informed

consent claim is granted.

It is so Ordered.

Dated: June 7 , 2006

EN'e. '\ 3 1

COUNT'l

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ERK' S OFF\Ce,