Kaminski v. United States of America

Filing 84

SUMMARY ORDER - That defendants' motions for summary judgment (Dkt. No. 72, 73-74) are DENIED. That defendants may move for summary judgment as to Kaminski's lack of informed consent claim within thirty (30) days, but if defendants do not so move, a trial scheduling order will be issued in due course. Signed by Senior Judge Gary L. Sharpe on 11/16/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
LOIS KAMINSKI, individually
and as administratrix of the
estate of James F. Fitzgerald,
Plaintiff,

5:14-cv-1441
(GLS/ATB)

v.
UNITED STATES OF AMERICA
et al.,
Defendants.
________________________________
SUMMARY ORDER
Pending are the partial1 motions for summary judgment of
defendants Dr. Joseph P. Markham and St. Joseph’s Hospital Health
Center (hereinafter “St. Joseph’s”), (Dkt. Nos. 72, 73-74), which seek
dismissal of the medical malpractice claim brought by plaintiff Lois
Kaminski based on allegations that her son, James Fitzgerald, was injured
and eventually died as a result of defendants’ negligence, improper care,

1

In their notices of motion, defendants purport to seek complete dismissal of the amended
complaint. (Dkt. No. 72 at 1, Dkt. No. 73 at 1.) However, their motions only address Kaminski’s medical
malpractice claim and fail to address his claim for lack of informed consent, which is brought against “[a]ll
[d]efendants.” (Am. Compl. ¶¶ 46-50, Dkt. No. 13.) As such, the court expresses no opinion on the
viability of this claim at this juncture but will entertain supplemental motions for summary judgment on
this claim within thirty days of the date of this Summary Order.

and improper treatment, (Am. Compl. ¶¶ 28-33, Dkt. No. 13).2
The following facts are undisputed. On February 6, 2012, after
complaints of chest pain and loss of consciousness, Fitzgerald was
transported via ambulance to St. Joseph’s Emergency Department. (St.
Joseph’s3 Statement of Material Facts (SMF) ¶¶ 8-9, Dkt. No. 74, Attach.
15.) At St. Joseph’s, Dr. Markham conducted a physical examination of
Fitzgerald, monitored his vitals, and ordered various tests. (Id. ¶¶ 10, 1315.) Ultimately, Dr. Markham diagnosed Fitzgerald with vasovagal
syncope, dehydration, reactive airway disease, and wheezing. (Id. ¶ 17.)
After Dr. Markham ordered medication and saline, Fitzgerald was
discharged to his home. (Id. ¶¶ 18-20.) At the time, Dr. Markham noted
that Fitzgerald’s “condition is satisfactory.” (Dkt. No. 74, Attach. 5 at 31.)
Dr. Markham also referred Fitzgerald to the Westside Clinic for a follow-up
appointment and re-evaluation within two to four days. (St. Joseph’s SMF

2

Kaminski also brought medical malpractice claims against the United States and two other
medical providers. (Am. Compl. ¶¶ 34-45.) The two medical providers were previously dismissed from
this lawsuit without objection. (Dkt. No. 60.) The United States did not move for summary judgment. As
such, the claim against the United States remains and the facts related to it are not discussed herein.
3

Given that St. Joseph’s takes the position that the claims against it are based solely on its
vicarious liability for the actions of Dr. Markham, (Dkt. No. 74, Attach. 16 at 9-10), the parties’ motion
papers are largely identical. Although both defendants submitted a statement of material facts, (Dkt. No.
72, Attach. 37; Dkt. No. 74, Attach. 15), for the sake of expediency, the court draws its background facts
solely from the statement of material facts filed by St. Joseph’s.

2

¶ 21.) Fitzgerald did not follow-up at the Westside Clinic; instead, he went
to Pulaski Urgent Care the following month. (Id. ¶ 22.) On May 23, 2012,
Fitzgerald died of a heart attack. (Id. ¶¶ 23-24.)
The standard of review pursuant to Rule 56 of the Federal Rules of
Civil Procedure is well established and will not be repeated here. For a full
discussion of the standard, the court refers the parties to its decision in
Wagner v. Swarts, 827 F. Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom.
Wagner v. Sprague, 489 F. App’x 500 (2d Cir. 2012).
The parties agree that Kaminski’s supplemental claim of medical
malpractice is governed by New York substantive law. (Dkt. No. 72,
Attach. 36 at 6; Dkt. No. 74, Attach. 16 at 6; Dkt. No. 78, Attach. 5 at 6.)
Under New York law, a medical malpractice plaintiff must
establish (1) the standard of care where the treatment occurred,
(2) that the defendant breached the standard of care, and (3) that
this breach proximately caused the injury. To prove the standard
of care, a plaintiff must present expert medical evidence, unless
the malpractice was so obvious that such evidence is
unnecessary.
Hogan v. A.O. Fox Mem’l Hosp., 346 F. App’x 627, 630 (2d Cir. 2009)
(internal citations omitted).
Defendants’ motions are centered on alleged deficiencies with the

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report of Kaminski’s expert, Dr. Scott Jolin.4 (Dkt. No 72, Attach. 36 at 712; Dkt. No. 74, Attach. 16 at 7-9.) Dr. Jolin opined that “the standard of
care was not met” because “Dr. Markham failed to develop a differential
diagnosis and consider other possible causes of the presentation of
. . . Fitzgerald.” (Dkt. No. 72, Attach. 15 at 14.) According to Dr. Jolin,
given Fitzgerald’s presentation, “acute coronary syndrome should have
been primarily considered and further evaluated,” but “[i]t was not
considered, and as a direct result, . . . Fitzgerald died of an acute
myocardial infarction[.]” (Id.) Dr. Jolin based his opinion on Fitzgerald’s
medical records, death certificate, autopsy report, and the deposition
transcripts of Dr. Markham and Kaminski. (Id. at 13.) Defendants do not
dispute that Dr. Jolin qualifies as an expert.
Defendants seize on an example provided within Dr. Jolin’s report to
argue that the standard of care was met.5 (Dkt. No. 72, Attach. 36 at 74

The United States filed a memorandum in opposition to the pending motions. (Dkt. Nos. 7576.) However, as argued by Dr. Markham, (Dkt. No. 81 at 9-10), the court does not consider these
papers because the United States has not asserted claims against Dr. Markham or St. Joseph’s and thus
has no standing to oppose their motions for summary judgment. See Aktas v. JMC Dev. Co., 877 F.
Supp. 2d 1, 29-30 (N.D.N.Y. 2012).
5

Defendants also rely on a competing expert opinion by Dr. Joel Bartfield, who found that Dr.
Markham did not deviate from the standard of care. (Dkt. No. 74, Attach. 13.) Dr. Bartfield’s opinion is
not discussed in this Summary Order because it merely demonstrates a battle of the experts that would
otherwise necessitate a trial. See Hulett v. City of Syracuse, 253 F. Supp. 3d 462, 505 (N.D.N.Y. 2017);
Smith v. City of N.Y., No. 12 Civ. 4922, 2015 WL 4643125, at *5 n.6 (S.D.N.Y. Aug. 5, 2015).

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10; Dkt. No. 74, Attach. 16 at 7-8.) Specifically, in addition to rendering the
expert opinions described above, Dr. Jolin went on to hypothesize that “Dr.
Markham could have met the standard of care in several ways,” including
“arrang[ing] an urgent outpatient cardiac evaluation by a cardiologist or an
internist” and “inform[ing] [Fitzgerald] about the concern that the symptoms
were a potential indication of a significant cardiac disease and
accentuat[ing] the importance of [a] follow-up.” (Dkt. No. 72, Attach. 15 at
14.) Defendants argue that Dr. Jolin met the standard of care by referring
Fitzgerald to the Westside Clinic and including warnings about cardiac
issues in his discharge papers. (Dkt. No. 72, Attach. 36 at 7-10; Dkt. No.
74, Attach. 16 at 7-8.) The court agrees with Kaminski that an issue of fact
necessitates denial of defendants’ motions.
First, Dr. Jolin’s hypothetical does not alter his ultimate opinion that
Dr. Markham deviated from the standard of care by not considering, further
evaluating, or informing Fitzgerald about acute coronary syndrome. (Dkt.
No. 78, Attach. 5 at 9-10.) Additionally, even assuming that the Westside
Clinic could have initiated a cardiac evaluation, (Dkt. No. 72, Attach. 16 at
29), it is unclear whether Dr. Markham arranged for this to take place.

5

Although Dr. Markham testified at deposition that his discharge instructions
included “a referral for syncope that would have included cardiac
evaluation in my mind,” (Dkt. No. 72, Attach. 7 at 62), his equivocal opinion
merely creates an issue of material fact to be resolved at trial.
Furthermore, notwithstanding whether Dr. Markam arranged an urgent
outpatient cardiac evaluation, there is a question of fact over whether Dr.
Markham “accentuated the importance of [a] follow-up.” (Dkt. No. 72,
Attach. 15 at 14.) Although Dr. Markham claims that he did not completely
rule out a cardiac event based on Fitzgerald’s symptoms, (Dkt. No. 72,
Attach. 7 at 76), the discharge papers are void of any diagnosis of acute
coronary syndrome or other cardiac event and, instead, state that
“[p]atient’s condition is satisfactory,” (Dkt. No. 72, Attach. 18 at 1).
Although the discharge papers include information about cardiac risk
factors, this boilerplate language was included with other, general health
information, including HIV testing, seat belt use, and smoking dangers, (id.
at 4-7), which, at best, raises a question of fact regarding whether this
language accentuated the importance of a follow-up.
Next, Dr. Markham argues that Dr. Jolin’s conclusion regarding
proximate cause should be discredited as speculative because “[he] did
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not know that Dr. Markham was not the last medical provider who treated
[Fitzgerald] before he passed away.” (Dkt. No. 72, Attach. 36 at 11.) First,
this assertion is belied by the fact that Kaminski’s deposition testimony,
which Dr. Jolin reviewed, (Dkt. No. 72, Attach. 15 at 13), revealed that after
seeing Dr. Markham, Fitzgerald went to the Pulaski Health Center and was
referred to a gastroenterologist, (Dkt. No. 72, Attach. 6 at 37-40). Next,
although Dr. Jolin’s opinion regarding “direct” causation is perhaps inartful,
the expert nonetheless opined that decedent’s death was a result of Dr.
Markham’s failure to develop a differential diagnosis of acute coronary
syndrome after reviewing the medical records available to Dr. Markham,
Fitzgerald’s death certificate, and Fitzgerald’s autopsy report. (Dkt. No. 72,
Attach. 15 at 13.) The court agrees with Kaminski that any intervening act
that occurred after Dr. Markham treated Fitzgerald is fodder for trial. (Dkt.
No. 78, Attach. 5 at 20.)
Accordingly, it is hereby
ORDERED that defendants’ motions for summary judgment (Dkt. No.
72, 73-74) are DENIED; and it is further
ORDERED that defendants may move for summary judgment as to
Kaminski’s lack of informed consent claim within thirty (30) days, but if
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defendants do not so move, a trial scheduling order will be issued in due
course; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
November 16, 2018
Albany, New York

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