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Dr. failed to diagnose and treat: summary judgment denied.

CASE ON POINT: Grant v. Scuderi, 2010-31402 (6/4/2010)-NY

CASE FACTS: Robert Grant, age 74, had undergone bilateral knee replacements in 1973. In November of 1973 he fell and sustained fractures, necessitating revision of both knee replacements. The knee revisions were done one at a time. Dr. Giles Scuderi performed the revision on the right knee on December 13, 2003, while the patient's left leg remained in a cast for three months. On April 13, 2004, Dr. Scuderi revised the patient's left knee. On April 16, 2004, the patient was discharged from the hospital and transferred to a rehabilitation facility. Dr. Joseph Annichiarico was the admitting physician at the rehabilitation facility who took the patient's history and conducted a physical examination of the patient. The patient's medical history revealed heart disease, high cholesterol, hypertension, peripheral vascular disease, and diabetes. Dr. Annichiarico's note of the physical did not mention a blister on the patient's lower left extremity. However, he ordered a Betadine "paint" to be applied carefully, twice daily, to a left leg blister. He also ordered discontinuance of the Lidoderm pain patches with which the patient was admitted around his left kneecap. Dr. annichiarico maintained that in his examination before trial (EBT) he did not the blister in his notes of the physical examination of the patient because when he conducted the physical, the patient's left leg was in a dressing. He stated that he stepped away from the patient and a nurse subsequently removed the dressing around the patient's left leg, at which time he was able to observe the blister. Upon admission, Dr. Annichiarico also ordered that the patient's left leg be placed on a constant passive motion machine, (CPM) for four hours a day. He did not order any consultations. On April 17, 2004, Dr. Arefin Siddique, Dr. Annichiarico's associate, saw the patient. He did not order any consultations at that time. He maintained in his EBT notes that he wanted to continue the treatment ordered by Dr. Annichiarico. On April 10 Dr. Siddique examined the patient. He noted that the blister had redness and was intact. He called Nurse Daphne Chivlly, a wound ostomy care nurse, to examine and treat the blister, and Dr. Mahjabeen Hassan, a plastic surgeon, for a consultation. Nurse Chivlly saw the patient on April 19. She took a history of the blister, examined it, and took pictures describing it as a 6 by 3 cm bulla, filled with dark yellow fluid. She aspirated the wound. The fluid was sent for a culture, She recommended topical antibiotic and a non-adherent, non-constrictive dressing to protect the blister. Notes indicated that on April 19, Dr. Hassan attempted a consultation, which did not occur because other tests were being done. Dr. Annichiarico appealed the denial of his motion for summary judgment.

COURT'S OPINION: The Supreme Court of New York, New York County, decided that Dr.Annichiarico failed to demonstrate prima facie entitlement to summary judgment because his expert's affirmation failed to address several of the allegations set forth in the plaintiffs' bill of particulars. Thus, the court held, inter alia, that having failed to demonstrate a prima facie entitlement to summary judgment by eliminating all material issues of fact, Dr. Annichiarico's motion had to be denied. While Dr. Annichiarico's reply to papers contained a second affirmation from his expert, this affirmation was beyond the scope of a reply, was improperly submitted for the first time on reply, and was not considered on the motion. Accordingly, the court ordered the parties to appear for a pretrial conference on a specific date.

LEGAL COMMENTARY: Regardless of whether Dr. Annichiarico's submissions had been sufficient to demonstrate a prima facie case for summarily judgment, the plaintiffs' expert submitted an affirmation that raised material issues of fact in rebuttal. The plaintiffs' expert stated he had extensive experience in trauma and critical care, and had treated "hundreds of patients with pressure sores, and was familiar with the diagnosis. He maintained that the good doctor departed from accepted practice for diagnosis, treatment and prevention of pressure sores. The plaintiffs' expert pointed out that there was a failure to recognize the clinical significance of the large pressure blister on the patient's left leg, and that the doctor neglected to drain the blister. Further, the expert noted that the good doctor failed to obtain a culture to rule out infection. The expert further noted that the good doctor's own expert failed to recognize that the blister was, in fact, a pressure sore, which when painted with Betadine, which once absorbed, can penetrate into the deepest levels of skin, causing burns, which, in turn, cause increased pressure in the deeper skin layers, thus causing further erosion and destruction of the underlying tissue, resulting in "full-thickness" destruction of the patient's skin and musculature. The plaintiffs' expert further opined that the good doctor's care was a significant factor in causing the patient's blister to worsen, necessitating multiple debridements and causing substantial pain and loss of significant amounts of soft tissue from the left leg.

Editor's Note: It is interesting to note that it was the nurse to whom the good doctor gave the responsibility for the patient's care. The nurse then called in those whom she felt had the requisite expertise to diagnose and treat the patient's condition. Once responsibility was given to Nurse Chivlly to care for and treat the patient, things completly changed. She had the good sense to call in experts in pressure sores!
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Title Annotation:Nursing Law Case on Point
Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:Jul 1, 2010
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