Downing v. Tappan Zee Constructors, LLC

Background

Richard Downing, a deck hand aboard a tug at the Tappan Zee Bridge construction site, injured his neck and back while handling heavy mooring lines on July 8, 2015. He developed severe pain and neurological symptoms, including paralysis. He was taken to Phelps Memorial Hospital, where Dr. Baruch Berzon treated him, Dr. Sandra Carniciu evaluated him as the on-call neurologist, and Dr. Thomas Lee participated by telephone as the on-call neurosurgeon.

The doctors arranged for Downing to be transferred to Westchester Medical Center rather than having imaging and surgery performed at Phelps. An MRI at Westchester showed an epidural bleed pressing on Downing’s spinal cord. Surgery decompressed the spinal cord, but Downing remained paralyzed.

Downing asserted medical-malpractice claims against Phelps Memorial Hospital, Northwell Health, Inc., Dr. Berzon, Dr. Carniciu, and Dr. Lee. Tappan Zee Constructors, LLC, identified in the supplied case name, had settled with Downing and withdrawn its cross-claims against the remaining defendants before this opinion. The court exercised jurisdiction based on the parties’ assertedly diverse citizenship under 28 U.S.C. § 1332(a).

Summary-Judgment Standard

Summary judgment is appropriate only when the evidence shows that there is no genuine dispute about a fact that could affect the result and the moving party is entitled to judgment as a matter of law. The court does not decide disputed facts at this stage; it determines whether a reasonable jury could resolve those disputes for the nonmoving party.

Medical-Malpractice Claims

The parties agreed, and the court held, that New York substantive law governed the medical-malpractice claims. Under that law, Downing had to show that a medical provider owed him a duty of care, departed from accepted medical practice, and proximately caused his injuries.

Downing’s theory was that the defendants delayed his surgery through several alleged departures from the standard of care: Dr. Berzon’s allegedly delayed examination; his request for a neurological rather than neurosurgical consultation; the failure to promptly perform an MRI at Phelps; Drs. Carniciu and Lee’s decision to transfer Downing; their alleged failure to accurately diagnose the epidural bleed; and the failure to perform appropriate surgery at Phelps.

The court found that eight medical experts disagreed about whether the defendants departed from the standard of care and whether any departure contributed to or caused Downing’s paralysis. Because those disagreements involved material factual issues, the court held that they were not suitable for resolution on summary judgment.

Dr. Berzon and the Phelps Defendants

Downing’s experts opined that Dr. Berzon should have examined him sooner, ordered an urgent MRI earlier, continued the MRI process at Phelps, and sought a spinal-surgery consultation. The defense experts opined that Dr. Berzon acted within accepted medical practice and that Downing’s neurological condition was already so severe that earlier intervention likely could not have restored function.

The court held that these competing expert opinions created a factual dispute about whether Dr. Berzon departed from the standard of care and contributed to Downing’s paralysis. It therefore denied summary judgment for Dr. Berzon and the Phelps defendants on the theory that the hospital defendants could be held responsible for the care provided by physicians in the emergency room.

Dr. Carniciu

Downing’s expert asserted that Dr. Carniciu should not have made a treatment decision without MRI imaging, should have considered the possibility of an epidural hematoma, and may have deprived Downing of an earlier surgical intervention at Phelps. Dr. Carniciu’s experts testified that her diagnosis and treatment were timely and appropriate and that her conduct did not cause Downing’s paralysis.

The court held that this conflicting opinion testimony presented a fact question for a jury. It therefore denied Dr. Carniciu’s motion for summary judgment.

Dr. Lee

Dr. Lee argued that he could not be liable because he had no physician-patient relationship with Downing. The court found a factual dispute on that issue. Evidence supported a possible relationship because Dr. Lee was consulted about Downing’s diagnosis and surgery, advised that Phelps could not promptly perform the procedure, and recommended transfer to Westchester. Other evidence weighed against such a relationship because Downing did not know Dr. Lee was involved, Dr. Lee never examined him, and Dr. Lee’s expert characterized the telephone call as an informal physician-to-physician consultation.

The court also found conflicting expert opinions about whether Dr. Lee departed from the standard of care by not examining Downing, insisting on an MRI at Phelps, or participating in the transfer decision. It therefore denied Dr. Lee’s motion for summary judgment.

Expert-Testimony Hearing

Drs. Lee and Carniciu requested a hearing about the reliability and admissibility of Downing’s anticipated expert testimony. The court declined to address the issue or schedule a hearing because the doctors had not made a formal application to exclude the testimony. The court denied that hearing request without prejudice.

Disposition

The court denied all motions for summary judgment. It denied without prejudice Drs. Lee and Carniciu’s request for a hearing on the reliability and admissibility of Downing’s medical experts’ testimony. The court directed counsel to appear for a case-management conference at which it expected to set a trial date and address pretrial submissions, possible referral to a magistrate judge, and mediation.