Lettman v. United States Government et al

Filing 39

ORDER & OPINION re: 24 MOTION for Partial Summary Judgment and to Dismiss Certain Claims filed by United States Government, United States Department of Veteran Affairs.For the reasons stated above, summary judgment is GRANTED as to the individual Defendants and the Department of Veterans Affairs. Summary judgment is DENIED as to Plaintiff's malpractice claim against the United States. (Signed by Judge Lorna G. Schofield on 8/29/2013) (lmb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
MARIA LETTMAN,
:
Plaintiff,
:
:
-against:
:
UNITED STATES, et al.,
:
Defendants. :
:
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8/29/13

12 Civ. 6696 (LGS)
ORDER & OPINION

LORNA G. SCHOFIELD, District Judge:
Plaintiff Maria Lettman asserted claims against the United States, the United States
Department of Veteran Affairs, Dr. Teresa Aquino, Drs. John and Jane Doe, and a John Roe
police officer defendant. In April 2013, the claims against Dr. Aquino were settled. On May 31,
2013, Defendants United States Government and United States Department of Veteran Affairs
moved for partial summary judgment on Plaintiff’s medical malpractice claims arising from
events that took place on April 7, 2010, leaving at issue the events of September 8, 2010. In
Plaintiff’s Opposition and in a June 18, 2013, communication to defense counsel, Plaintiff agreed
that all of her claims against the Department of Veterans Affairs and the remaining individual
defendants should be dismissed. Accordingly, the Court dismisses those claims and defendants,
and denies Defendants’ motion as to those claims and defendants as moot.
Plaintiff continues to assert her common law tort claims against the United States under
the Federal Tort Claims Act for the conduct of Dr. Silaja Yitta, who was a resident physician
employed at the Veterans Administration hospital. For the reasons stated below, the United
States’ motion for partial summary judgment as to the malpractice claims arising from the events
of April 7, 2010, is denied.

I. Facts
A. Timeline of Events
On March 31, 2010, Plaintiff had a pancreatic mass removed and later developed an
infection. On April 7, 2010, she underwent a radiology procedure to facilitate access for
intravenous antibiotic therapy in which a peripherally inserted central catheter (“PICC line”) was
inserted into Plaintiff’s left brachial vein, with the help of a guidewire. The procedure was
performed by either Dr. Teresa Aquino, the attending physician and an independent contractor
with the Veterans Affairs Hospital, or Dr. Yitta, who was then a resident physician acting under
the direction of Dr. Aquino. Neither Dr. Yitta nor Dr. Aquino can recall the events or their
respective roles, nor do records indicate who performed the procedures. Plaintiff testified that
Dr. Yitta performed the procedure. Dr. Yitta, a third-year resident with two weeks of
interventional radiology training at the time of the procedure, testified that it was her custom and
practice to follow the directions of the attending physician during any procedure, and not to
exercise any independent medical judgment. Dr. Aquino testified that it was her custom and
practice to supervise a resident at all times the resident performs a procedure such as the
insertion of a PICC line, and that she would have supervised Dr. Yitta’s actions.
On April 14, 2010, the PICC line was removed, and Plaintiff was discharged from the
hospital. On September 7, 2010, when Plaintiff returned to the hospital complaining of chest
pain, a foreign body – a nine inch piece of a guidewire used in PICC line procedures – was
discovered inside Plaintiff’s right pulmonary artery. The events of September 8, 2010 are not at
issue on this motion. On November 19, 2010, Plaintiff had the PICC line removed at Stony
Brook Hospital.

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B. Expert Testimony
On March 13, 2013, Plaintiff’s expert, Dr. Thomas Sos submitted an expert medical
report that stated:
Upon removal of the guide wire additional imaging studies should be taken to
confirm and document the final placement of the tip of the PICC line and that the
entire guide wire has been successfully removed. The removed guide wire should
also be examined to confirm that it is not damaged and that the entire wire was
successfully removed.
Based on my review of the above medical records, it is my conclusion and
opinion that Drs. Theresa Aquino, MD (Attending Radiologist) and Dr. Yitta
(Resident Radiologist) failed to follow the standards of care in the insertion,
placement and follow up of the PICC in Maria Lettman and to timely diagnose
and treat the resulting broken and retained foreign body wire fragment which
migrated through her heart into her pulmonary artery, and that such failure to
diagnose and treat the broken and retained wire fragment was a failure to use such
care as a reasonably prudent person and careful healthcare provider would have
used under similar circumstances.
At his deposition on April 4, 2013, Dr. Sos testified that the combination of the wire
breaking and not being detected during and immediately after the procedure was a departure
from the standard of care. He also opined that leaving a piece of the guidewire in the patient was
not necessarily the only departure from the standard of care, but that he could not identify further
departures without depositions and learning more about what had happened during the
procedure.
In support of Plaintiff’s opposition to summary judgment, Plaintiff submitted a June 7,
2013, declaration of Dr. Sos opining that Dr. Yitta had deviated significantly from the standard
of care in the following ways:
Dr. Yitta should have known based on her education, training and experience as
to what the standard of care and procedures were relative to the insertion of a
Peripherally Inserted Central Catheter. She should know that radiographs should
be taken upon completion to confirm the positioning of the "picc line" and that all
equipment used has been removed. . . .

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. . . [I]n her procedures, her failure to advise Dr. Aquino as to the conditions as
they arose during the procedure, failure to advise Dr. Aquino of the consequences
of her treatment of the patient, Maria Lettman, when she knew or should have
known about the difficulty removing the guide wire, her failure to have
radiographic [studies] preformed to confirm placement of the picc line and of the
failure to read the radiographs and failure to preserve the radiographs.
Defendant’s expert Dr. Roman Nowygrod opined in his May 31st, 2013, declaration that:
. . . [A] resident who is either assisting with or performing this type of procedure
is under the supervision of an attending physician at all times, and it is the
attending physician’s responsibility to instruct and supervise the resident on a ll
aspects of the procedure, in part because a resident may not have known that, at
the conclusion of the procedure, guidewires are typically examined or radiological
images [are] taken in order to confirm the placement of the picc line and removal
of the guidewire.
II. Legal Standard
Summary judgment is appropriate only where the record before the court establishes that
there is no “genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). The Court must construe the evidence in the light most
favorable to the non-moving party and must draw all reasonable inferences in the non-moving
party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); In re “Agent Orange”
Prod. Liab. Litig., 517 F.3d 76, 87 (2d Cir. 2008). A motion for summary judgment should be
denied “if the evidence is such that a reasonable jury could return a verdict” in favor of the nonmoving party. NetJets Aviation, Inc. v. LHC Commc'ns, LLC, 537 F.3d 168, 178–79 (2d Cir.
2008). Summary judgment is warranted if a party “fails to make a showing sufficient to
establish the existence of an element essential to that party's case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The non-moving party may not rely on “conclusory allegations or unsubstantiated
speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). It cannot rely on mere
denials or unsupported alternative explanations of its conduct. See S.E.C. v. Grotto, No. 05 Civ.
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5880, 2006 WL 3025878, at *7 (S.D.N.Y. Oct. 24, 2006). The non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The FTCA makes the United States liable for certain tort claims, including medical
malpractice, committed by federal employees as determined by state law. Taylor v. United
States, 121 F.3d 86, 89 (2d Cir.1997); see also 28 U.S.C. § 1346. “To establish a claim for
medical malpractice under New York law, a plaintiff must prove (1) that the defendant breached
the standard of care in the community, and (2) that the breach proximately caused the plaintiff's
injuries.” Arkin v. Gittleson, 32 F.3d 658, 664 (2d Cir. 1994)).
III. Discussion
At issue is Plaintiff’s medical malpractice claim against the United States based on an
alleged breach of the duty of care by Dr. Yitta, a third-year resident at the time of the procedure. 1
A resident physician “who is supervised by a doctor during a medical procedure, and who does
not exercise any independent medical judgment“ will not be liable for malpractice “unless the
resident or fellow knows that the supervising doctor's orders are so clearly contraindicated by
normal practice that ordinary prudence requires inquiry into the correctness of the orders, or the
resident or fellow commits an independent act that constitutes a departure from accepted medical
practice.” Poter v. Adams, 961 N.Y.S.2d 556, 558-59 (2013). “[I]n the ordinary situation
hospital personnel are obligated to carry out the instructions of a privately retained attending
physician, and have a right to do so without any apprehension that liability will thereby follow.
Christopher v. St. Vincent's Hosp. & Med. Ctr., 504 N.Y.S.2d 102, 105 (1986). However, “it is
difficult to believe that hospital personnel who know, or should know, that the course of

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The parties agree that any liability of the United States based on the actions of Dr. Aquino was resolved as part of
the settlement with Dr. Aquino individually and is no longer a part of the case.

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treatment prescribed is clearly contraindicated by accepted medical practice, may appropriately
carry out the clearly contraindicated course of treatment without taking any action . . . even if
that action consists simply of informing the attending physician of their concerns.” Id.
Plaintiff does not dispute Defendant’s claim that Dr. Yitta did not use independent
medical judgment or commit an independent act, whether or not she performed the procedure as
Plaintiff asserts. Thus, the remaining issue is whether Dr. Aquino’s orders as a supervisor were
so clearly contraindicated by normal practice that ordinary prudence required Dr. Yitta to inquire
into the correctness of those orders. Poter, 961 N.Y.S.2d at 559. Defendant argued that Plaintiff
failed to raise a triable issue of fact that Dr. Aquinos’s actions were so clearly contraindicated
that Dr. Yitta violated the standard of care in failing to intervene.
Dr. Sos’s testimony, taken as a whole, creates a triable issue of fact as to whether Dr.
Yitta should have recognized that it was clearly contraindicated by medical practice not to take
steps to determine that the guidewire had been completely removed. Dr. Sos stated that:
Dr. Yitta should have known based on her education, training and experience as
to what the standard of care and procedures were relative to the insertion of a
Peripherally Inserted Central Catheter. She should know that radiographs should
be taken upon completion to confirm the positioning of the “picc line” and that all
equipment used has been removed.
He further stated that:
Upon conclusion of the procedure, the physician is to examine the guide wire as
to its condition as well as determine that the entire wire has been removed. Once
the wire has been removed, an x-ray is done to observe the placement of the picc
line and to confirm that all of the guide wire has been removed.
Finally, he testified that Dr. Yitta had breached the standard of care in:
her procedures, her… failure to advise Dr. Aquino of the consequences of her
treatment of the patient, Maria Lettman, when she knew or should have known
about the difficulty removing the guide wire, her failure to have radiographic
[studies] preformed to confirm placement of the picc line and of the failure to read
the radiographs and failure to preserve the radiographs.
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Read in a light most favorable to the non-moving party, Dr. Sos’s testimony raises a
triable issue of fact as to whether Dr. Yitta should have informed, or should have known to
inform, Dr. Aquino of concerns that, upon completion of the PICC line insertion, insufficient
action had been taken to confirm that the guidewire had been completely removed, in clear
contravention of established medical practice. While Dr. Sos did not couch his testimony in the
precise “clearly contraindicated” language, he raised a factual question as to whether Dr.
Aquino’s actions were sufficiently contraindicated that Dr. Yitta should have taken some action.
See St. Vincent's Hosp. & Med. Ctr., 504 N.Y.S.2d at 105 (1986) (expert’s affidavit was “clearly
sufficient to present a factual issue as to whether aspects of the [treatment] constituted
malpractice. Although it is less certain that the treatment pursued was “clearly contraindicated
by normal practice, and indeed the affidavit does not speak in such terms,” the affidavit was
sufficient to raise a factual issue as to the hospital’s liability for treatment administered at the
direction of the attending physician); Somoza v. St. Vincent's Hosp. & Med. Ctr. of New York,
596 N.Y.S.2d 789, 792 (1993) (expert’s affidavit was sufficient to create a question of fact, even
though not couched in precise terms of “clearly contradindicated”).
Defendant argues that Dr. Sos’ declaration should be disallowed because it contradicts
his earlier expert report and deposition, and is therefore excludable under the “sham issue of
fact” doctrine. “The ‘sham issue of fact’ doctrine . . . prohibits a party from defeating summary
judgment simply by submitting an affidavit that contradicts the party's previous sworn
testimony.” In re Fosamax Products Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013). The
doctrine typically is applied “where a party submits an affidavit that contradicts the party’s own
prior statements,” and “when a party attempts to use evidence from an expert witness to defeat
summary judgment.” Id. A sham issue of fact exists only when “the contradictions in an expert
witness's testimony are inescapable and unequivocal in nature.” Id.; see also Rivera v. Rochester
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Genesee Reg’l Transp. Auth., 702 F.3d 685, 696 (2d Cir. 2012) (concluding that summary
judgment was inappropriate because the inconsistencies in the plaintiff's testimony were not
“real, unequivocal, and inescapable contradiction[s]”). A court should not disregard later
testimony for being “ambiguous, confusing, or . . . incomplete,” so long as “there is a plausible
explanation for discrepancies in a party's testimony.” Rojas v. Roman Catholic Diocese of
Rochester, 660 F.3d 98, 106 (2d Cir. 2011) (quoting Jeffreys v. City of New York, 426 F.3d 549,
555 n. 2 (2d Cir. 2005)).
The inconsistencies here are not “unequivocal contradictions.” In his expert report, Dr.
Sos opined that “[u]pon removal of the guide wire additional imaging studies should be taken to
confirm . . . that the entire guide wire has been successfully removed,” and that Drs. Aquino and
Yitta had failed to follow the standards of care by failing to “diagnose and treat the broken and
retained wire fragment . . . .” At his deposition, he also stated that “the combination of the wire
breaking and not being detected during and in the immediate follow-up period does speak of
departure from standards of care,” and that the breaking of the wire is not “exclusively the only
departure that [he has] found.” In his June 7, 2013 declaration, Dr. Sos opined that “[t]here was
a significant deviation from [the] standard of care by Dr. Yitta in her procedures.” He further
criticized Dr. Yitta’s failure to inform Dr. Aquino of the “conditions . . . during the procedure . . .
; consequences of her treatment of [plaintiff]; . . . failure to have radiographic [studies]
performed . . . ; and failure to read [and] . . . preserve the radiographs.” He also stated that Dr.
Yitta “should know that radiographs should be taken upon completion to confirm the positioning
of the ‘picc line’ and that all equipment used has been removed.”
While his most recent testimony might be different, it does not contradict his prior
testimony. See Rivera, 702 F.3d at 694-6 (finding “no real, unequivocal, and inescapable
contradiction of the sort contemplated [by the doctrine],” where mechanic filed a complaint
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based on hostile work environment stemming from “personal conflict” but later testified that
defendant “harassed him based on his national origin”); cf. In re Fosamax, 707 F.3d at 194-95
(finding that expert testimony “inescapably and unequivocally contradicted” earlier testimony
where doctor first testified not knowing that patient was on a certain drug and later testified that
he did know).
Because there is no clear contradiction, the Court credits Dr. Sos’ June 7, 2013
declaration. Trial is the proper arena in which to consider the credibility of the parties’ expert
witnesses, and the fact finder can make inferences regarding the timing of Dr. Sos’s testimony.
III. Conclusion
For the reasons stated above, summary judgment is GRANTED as to the individual
Defendants and the Department of Veterans Affairs. Summary judgment is DENIED as to
Plaintiff’s malpractice claim against the United States.
SO ORDERED.
Dated: August 29, 2013
New York, New York

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