Desensa v. New York University Medical Center12/17/2003
This opinion is uncorrected and subject to revision before publication in the printed Official Reports.
Introduction
Motion by defendants New York University Medical Center and Peter Zakow, M.D., for summary judgment dismissing the complaint insofar as asserted against them.
Facts & Procedural Posture
The injured plaintiff Phillip DeSena, an infant born with a severe congenital heart defect, was referred by a pediatric cardiologist to defendant Stephen Colvin, M.D., for surgery on the infant's heart (Defendants' motion papers, ex. F, p. 12, 33-36, 51). In February 1999, Dr. Colvin performed, without complication, emergency systemic-to-pulmonary arterial shunt surgery on the infant (id at ex. F, p. 30, 35-37).
Subsequently, on October 7th of the same year, Dr. Colvin executed a bilateral, bidirectional Glenn procedure (hereinafter the procedure) on the infant (id at ex. F, p. 12, 30, 34, 53-54, 62, 82-83). The procedure entails, among other things, the anastomosis (i.e., attachment) of one end of the superior vena cava to the pulmonary artery (id at ex. F, p. 83, 117, 122-123; Plaintiffs' opposition, ex. A, pp. 2-3). The procedure was conducted in an operating room owned and operated by defendant New York University Medical Center (hereinafter NYU) (Defendants' motion papers, ex. A, p. 2; id at ex. C, p. 1).
Defendant Peter Zakow, M.D., a cardiothoracic resident at NYU at the time, assisted Dr. Colvin during the procedure (id at ex. F, p. 102; id at ex. G, p. 55-56, 171). During his EBT, Dr. Zakow recalled scrubbing in for the procedure, but could not recall specific details thereof (id at ex. G, p. 89, 118). However, according to the testimony adduced during the EBT of Dr. Colvin, Dr. Zakow's assistance in the procedure was limited to " elping. Sucking. Holding thread. Sutures. Forceps" (id at ex. F, p. 172). Dr. Colvin also stated during his EBT, in response to a question regarding the identity of the author of the operative note prepared following the procedure, that: "It's my operation. I operated on [the infant]. Nobody else. Nobody else would write anything. * * * Not Dr. Zakow. Nobody else d the surgery but me." (id at ex. F, p. 62).
After Dr. Colvin anastomosed the superior vena cava to the pulmonary artery he detected the presence of an obstruction at the anastomotic site (id at ex. F, p. 116-123, 131-132). Dr. Colvin released the anastomosis and discovered that a clot (i.e., thrombus) had formed at the anastomotic site, which he immediately removed (id at ex. F, p. 119-124, 143). Approximately fifteen to twenty minutes after Dr. Colvin re-anastomosed the superior vena cava to the pulmonary artery he detected another obstruction at the anastomotic site (id at ex. F, p. 128-129, 131, 133-135). Dr. Colvin again released the anastomosis and found a second clot therein (id at ex. F, p. 170-171). After clearing the second clot, Dr. Colvin placed the infant on bypass (i.e., heart-lung machine), and re-anastomosed the superior vena cava to the pulmonary artery unitizing a pericardial patch (id at ex. F, p. 172-176, 179).
As a result of the procedure, the infant experienced bradycardia (i.e., slowing of heart beat) and hypoxia (i.e., deficiency in flow of oxygen), and ultimately sustained a neuroglial injury (id at ex. F, p. 152-155).
The infant's mother, Patricia DeSena, as natural guardian of the infant and individually, commenced this action to recover damages for medical malpractice and lack of informed consent (id at ex. A). The complaint, as amplified by the bills of particulars, alleges that the defendants were negligent, among other things, for failing to utilize cardiopulmonary by
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