New York Medical Malpractice Lawyer Blog
Defendants New York City Health and Hospitals Corporation (HHC) and Dr. PN (collectively defendants) move for summary judgment, dismissing plaintiff’s complaint insofar as asserted against them.
In this medical malpractice action, plaintiff alleges that defendants deviated from accepted standards of medical care while he was being treated in the hospital for severe injuries he sustained in an automobile accident. The Manhattan plaintiff alleges, among other things, that defends its improperly and negligently positioned and restrained his wrists, failed to monitor the effects of the restraints, negligently failed to perform physical therapy on him, and negligently caused his arms to become paralyzed and non-functional.
On December 29, 2004, plaintiff, then age 62, was driving his vehicle when it struck trees, a fence and landed in a courtyard, ejecting him from the driver’s side window. Plaintiff sustained various injuries, including a hemorrhage of the head, a crushed left leg from his foot to hip, and multiple lacerations and abrasions. EMS brought plaintiff to Kings County Hospital emergency room, where plaintiff was described as alert, combative, and intoxicated. Plaintiff was intubated and x-rays and abdominal/pelvic ct-scans were performed. Plaintiff sustained fractures of the pelvis, left femur, and left tibia/fibula, and had internal bleeding.
According to Dr. PN, plaintiff required significant treatment to save his life. He was unstable in the emergency room and Dr. PN did not know if he was going to survive. A CAT scan was taken to look at plaintiff’s head injury and to identify his severe pelvic fracture, but he become progressively more unstable and hemorrhaging. He underwent multiple massive transfusions, and was then transferred to the intensive care unit, where he was still unstable. Dr. PN testified that over the next 24 to 48 hours, she and other medical personnel were able to stabilize plaintiff, but he remained in extremely critical condition.
Dr. PN made the first order for wrist restraints on December 30, 2004, at 5:30 A.M. Orders for wrist restraints were written daily, from December 30, 2004 until February 6, 2005, while plaintiff was still in the intensive care unit. With respect to the need to restrain plaintiff in the critical care unit, Dr. PN testified that it was to protect himself as plaintiff was very dependent on a ventilator, required an endotracheal tube for his ventilator and multiple IV lines for his support, that he repeatedly reached and tried to pull out his lines.
Defendants also state that the flow sheets document that the nursing staff at the hospital checked wrist restraints for skin integrity, circulation and range of motion on regular intervals while plaintiff was restrained.
On February 11, 2005, physical therapy in Staten Island documented 15 to 20 degree extension/flexion in the left elbow and 15 to 30 degree flexion/extension in the right elbow. On February 14, 2005, plaintiff was evaluated for physical therapy. Bedside therapy was recommended three to four times per week to prevent further contractures and muscle weakness bilaterally in the upper and lower extremities and began at that time.
On April 5, 2005, one week prior to discharge, therapy documented a 15 degree lag in extension/20 degrees flexion of the left elbow and a 10 degree lag in extension/forty degree flexion in the right elbow. Despite two months of intensive therapy, after the wrist restraints were removed, plaintiff’s upper extremity contractures persisted.
On July 12, 2005, bilateral elbow x-rays performed at the Kings County Hospital outpatient clinic revealed a diagnosis of heterotopic ossification.
On August 19, 2005, surgery for the right elbow contracture release and excision of heterotopic calcification was performed at Kings County Hospital. On October 28, 2005, surgery for left elbow contracture release and excision of heterotopic calcification was performed.
Plaintiff commenced the instant action for medical malpractice and lack of informed consent in July, 2006.
In support of their motion, defendants argue that they are entitled to summary judgment dismissing the complaint based upon the affidavits of their expert physicians, which demonstrate that there was no departure from accepted standards of practice and that defendants did not cause plaintiff’s injuries.
A doctor (Dr. A) witness for the defendant testified that wrist restraints are routinely used for intensive unit patients who are often at increased risk of injuring themselves by pulling out therapies such as IV lines, endotracheal tubes, central lines and chest tubes. He also stated that wrist restraints allow for some range of motion and enable a degree of flexion and extension of the wrists and elbows and pronation and supination of the arms, as evidenced by the fact that on January 30, 2005 plaintiff was seen holding the dislodged chest tube tubing with his restrained left hand. The doctor said that there was no evidence that plaintiff’s wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff’s management.
Like Dr. A, Dr. B testified that there is sufficient documentation that the nursing staff continuously monitored the wrist restraints according to hospital protocol; that there was no evidence that plaintiff’s wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff’s management.
Dr. B further stated that despite intense physical therapy received after the removal of wrist restraints, the elbow contractures persisted.
Dr. B explained as well that heterotopic ossification is a medical condition which involves the gradual formation of bone in the soft tissue around major joints; that the normal soft tissue of the joint turns into bone; that it is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury, or central nervous system injury; that there is no medical evidence which suggests that heterotopic ossification has any relation to immobilization or restraint; and that physical therapy is not usually an effective treatment of heterotopic ossification and was not effective on plaintiff.
Further, Dr. B noted that plaintiff was diagnosed with a C1-C2 subluxation at the time of admission but no surgery could be performed because of plaintiff’s general medical condition, and that stabilization surgery was performed on March 28, 2005. He stated that the relationship between spinal injury and heterotopic ossification is well established, and that as a result of plaintiff’s spinal cord injury, he was diagnosed with spastic quadraparesis in the hospital ambulatory care clinic on June 16, 2006.
As such, Dr. B opined, with a reasonable degree of medical certainty, that plaintiff developed heterotopic ossification (HO) as a result of musculoskeletal trauma and spinal cord injury sustained during the automobile accident; that heterotopic ossification was not and could not be caused by wrists restraints.
On the other hand, the expert presented by plaintiff opined that it is widely accepted that gentle and active passive range of motion substantially limits the risk of HO and that the failure to position and move plaintiff’s arms for several hours during the day was a substantial factor in the development of his HO, to the degree and nature that it could cause such severe upper extremity dysfunction.
The expert also stated that even with HO, plaintiff’s severe bilateral elbow contractures were avoidable had his arms not been improperly restrained. He asserts that contractures occur when tendons/muscles harden and become `fixed’ or less elastic as a result of disuse; that in plaintiff’s case, the contractures were a separate and distinct injury from HO; and that the failure to reposition plaintiff’s arms for several hours a day on the days he was restrained was a substantial factor in causing his contractures and loss of range of motion in both arms.
According to the Court, the requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that such a departure was a proximate cause of the plaintiffs injury. On a motion for summary judgment in a medical malpractice action, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby. Defendant must make this showing through medical records and competent expert affidavits. Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to rise a triable issue of fact.
In this case, the Court held that defendants have made a prima facie showing entitling them to summary judgment with respect to their claim that the wrist restraints used on plaintiff did not cause plaintiff to contract heterotopic ossification. In this regard, both of defendants’ experts testified, and the record reveals, that the use of the wrist restraints on plaintiff was necessary because he was frequently described as restless and was considered at risk for self-injury. In addition, noting that heterotopic ossification is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury or central nervous system injury; that plaintiff had sustained spinal cord injury as a result of his accident; and that the relationship between spinal cord injury and heterotopic ossification was well established, Dr. B opined that plaintiff developed heterotopic ossification as a result of musculosekletal trauma and spinal cord injury sustained during the automobile accident, and that it was not and could not be caused by wrist restraints.
Defendants, however, have failed to make a prima facie showing that the wrist restraints did not cause plaintiff’s elbow contractures. In this regard, Dr. B opined that plaintiff’s elbow contractures were not caused by stiffness/tightness associated with atrophy from lack of use, asserting that there was no evidence that the restraints caused circularory impairment, were improperly positioned, or that plaintiff developed pressure sores in the upper extremities.
Thus, defendants’ own papers raise an issue of fact as to whether the proper protocols with respect to wrist restraints were consistently followed, and if not, whether the failure to do so was a proximate cause of plaintiff’s contractures.
In any event, plaintiff has raised a question of fact as to whether his heterotopic ossification and contractures resulted from defendants’ negligent use of wrist restraints on him, which precludes the court from granting defendants’ motion for summary judgment. With respect to plaintiff’s heterotopic ossification, plaintiff’s expert asserted that during some of the days plaintiff was restrained, he was not properly monitored according to hospital protocol. Plaintiff’s expert also opined that they were avoidable had plaintiff’s arms not been improperly restrained.
As such, defendants’ argument that plaintiff did not rebut their showing that there was sufficient documentation that plaintiff was continuously monitored, and that there is no evidence which suggests that heterotopic ossification has any relation to immobilization or restraint, is without merit.
Further, while defendants argue that plaintiff’s expert did not rebut their expert’s contention that heterotopic ossification is a rare condition and most frequently seen with, among other things, spinal cord injury, plaintiff’s expert raised an issue of fact as to whether the failure to properly monitor the wrist restraints caused plaintiff’s elbow contractures and heterotopic ossification. In addition, contrary to defendants’ claims, plaintiff’s expert specified how the restraint protocol was not followed.
That branch of defendants’ motion for summary judgment as to plaintiff’s cause of action for lack of informed consent was granted by the Court. Defendants have made a prima facie showing, through their expert affirmations, that a reasonably prudent person would have undergone all of the procedures plaintiff underwent if informed of the risks and benefits of the procedures. Plaintiff has failed to address this cause of action in his opposition.
Finally, in light of the factual issues raised, the court declined to search the record and grant plaintiff partial summary judgment.
In sum, that branch of defendants’ motion for summary judgment as to plaintiff’s cause of action for lack of informed consent is granted, and the remainder of defendants’ motion is denied.
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