Graham v. Columbia-Presbyterian Medical Center , 185 A.D.2d 753 ( 1992 )

Order of the Supreme Court, Bronx County (Barry Salman, J.), entered August 30, 1991, which granted defendants’ motion for partial summary judgment dismissing plaintiff’s claim for punitive damages, reversed, on the law, without costs.

Plaintiff’s decedent, Alphatrus Bens, Sr., underwent a transurethral resection at defendant Columbia-Presbyterian Medical Center. He was 71 years old at the time. His physician was defendant Jerry G. Blaivas, M.D., a board certified urologist. The procedure involved insertion of a cystoscope into the urethra to remove enlarged prostatic tissue, thus obviating the necessity of abdominal or perineal surgery. At midnight, a second procedure was performed by Sheldon Axelrod, M.D., the chief urology resident, and defendant Blaivas to stop bleeding from adjacent tissue. At 9:00 a.m. the following morning, Mr. Bens went into ventricular fibrillation for approximately one hour before responding to resuscitative measures. Later that afternoon, he again went into cardiac arrest and could not be revived. He died at approximately 5:00 p.m.

It is not disputed that at the conclusion of the operation, which began at 3:00 p.m. and ended just after 5:00 p.m., Mr. Bens was noted to have low blood pressure. The account of defendant Blaivas concerning what transpired thereafter differs sharply from that given by Dr. Sandra Curry, the anesthesiologist during the procedure. However, accepting as true the allegations made in opposition to the motion for summary judgment (Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341; Patrolmen’s Benevolent Assn. v City of New York, 27 NY2d 410, 415; Cohn v Lionel Corp., 21 NY2d 559), we conclude that there is an issue of fact as to whether the actions of Dr. Blaivas were so "intentional, malicious, outrageous, or otherwise aggravated beyond mere negligence” as to support an award of punitive damages (McDougald v Garber, 73 NY2d 246, 254; Montemurro v Dodick, 160 AD2d 690).

The record contains allegations which, if proved at trial, would tend to indicate that defendant Blaivas abandoned his patient under circumstances which render his conduct "wanton, intentional, reckless and a departure from accepted medical practice” (Sultan v Kings Highway Hosp. Ctr., 167 AD2d 534). Dr. Curry’s deposition testimony indicates that, after the procedure, there was significant bleeding from the Foley catheter and that the patient’s blood pressure dropped, requiring fluid management and the administration of vasopressors (Neo-Synephrine and Hespan). Mr. Bens’s condition was so unstable that he could not be moved from the operating room to the recovery room for nearly two hours.

According to Dr. Curry, Dr. Blaivas did not examine Mr. Bens to try to ascertain the source of the bleeding but stated to her that the amount of bleeding was not unusual and left. She was obliged to enlist the assistance of a urologist in the adjoining operating room, Mitchell Benson, M.D., to evaluate Mr. Bens’s condition. Dr. Benson attempted another cystoscopy, but the spinal anesthetic was wearing off and Mr. Bens did not tolerate the procedure well. As a result, Dr. Benson "stated that he couldn’t see anything blatant at that time.” Dr. Benson "thought, in his opinion, that this patient should probably go to the main operating area which was on a different floor and have an open operation to find out what was going on.” As Dr. Benson had his own patient to attend to, Dr. Curry and Marc Kaplan, M.D., a urology resident present throughout the procedure, were left to cope with the situation.

Excerpts from the hospital record indicate that Mr. Bens’s condition remained unstable after he was removed from the operating room. An entry in the recovery room nurse’s notes states that he arrived there at 7:40 p.m. "in shock”. "Gross bleeding via Foley catheter” is listed under "complications”. The chart of his blood pressure readings shows a range of between 70/30 and 90/40 over the course of the next hour. In direct contradiction to his deposition testimony, both Dr. Curry and Dr. Kaplan assert that Dr. Blaivas never came to the recovery room to determine his patient’s condition.

Dr. Kaplan states that he placed a call to Dr. Blaivas at his home in Westchester at approximately 8:30 p.m. to apprise him of the situation. During his examination before trial, Dr. Blaivas was asked whether, at that time, there was a suggestion that he return to the hospital. He replied, "Quite honestly, it’s not their job to suggest. We discuss the problem and I make a judgment.” Asked what he was doing at home, Dr. Blaivas responded, "I ate dinner, and I’m—I do remember I took a shower.” A second telephone call was made by the chief urology resident, Dr. Axelrod, somewhere around 10:00 p.m. Defendant, in his deposition testimony, states that Dr. Axelrod informed him that, in his judgment, Mr. Bens was "bleeding or continuing to bleed very badly and at that time we decided to continue to do the transfusions, and that I was coming in.”

It was midnight before Dr. Axelrod and Dr. Blaivas began the procedure which finally stopped the bleeding. By this time, Mr. Bens had received more than 10 units of packed red blood cells. It is plaintiff’s theory of recovery that death was caused by severe blood loss resulting from the failure of Dr. Blaivas to stem the bleeding in a timely fashion.

Defendants’ motion for partial summary judgment is predicated on the affidavit of defendant Blaivas which differs materially in its presentation of the events recounted by plaintiff and in the inferences to be drawn from the facts. "Upon review of a denial of a defendant’s motion for summary judgment, a plaintiff is entitled to every favorable inference which can be reasonably drawn from the evidence” (Sultan v Kings Highway Hosp. Ctr., supra, at 535), and defendant’s affidavit, therefore, merely raises a triable issue of fact as to whether punitive damages may be imposed (supra; Montemurro v Dodick, supra).

The dissent resolves factual inconsistencies in favor of defendant Blaivas to conclude that the "only” basis for an award of punitive damages is his delay in returning to the hospital. This is a highly selective reading of the record which overlooks the abandonment of a patient who was unstable—"in shock” according to the hospital record—and exhibiting "[g]ross bleeding” following surgery, requiring extraordinary measures to maintain marginal blood pressure. Defendant’s conduct amounts to a failure to render assistance to a patient in need of emergency treatment, exactly the situation presented in Sultan v Kings Highway Hosp. Ctr. (supra), a case the dissent finds "inapposite”.

As this court has had occasion to note, "It is well settled that, on a motion for summary judgment, the function of the court is one of issue finding, not issue determination” (Harris v City of New York, 147 AD2d 186, 191, citing Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Wiener v Ga-Ro Die Cutting, 104 AD2d 331, affd 65 NY2d 732). Only if it can be said, as a matter of law, that punitive damages are unavailable to a plaintiff in a medical malpractice action is a summary determination in favor of defendant warranted on this issue. We are aware of no case which has intimated as much. Nor are we prepared to accept the suggestion advanced by the dissent that punitive damages are only appropriate when the act of "malpractice” is an alleged assault by the treating physician upon his patient (Mullany v Eiseman, 125 AD2d 457, 458). Concur—Carro, Ellerin, Kassal and Rubin, JJ.