FILED: NEW YORK COUNTY CLERK 08/08/ :27 PM INDEX NO /2017 NYSCEF DOC. NO. 3 RECEIVED NYSCEF: 08/08/2017. Exhibit A

Transcription

1 Exhibit A

2 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Claim o f RICHARD BERMAN and KATHLEEN BERMAN, for an application for Leave to Serve a Late Notice of Claim, pursuant to General Municipal Law 50-e[5] and Unconsolidated Law 7401, X Index No. AFFIRMATION -against- Petitioners, New York City Health and Hospitals Corporation and Bellevue Hospital, Respondents x ANTHONY COLANTONIO, MD, a physician duly licensed to practice medicine in the State of New York, being duly sworn deposes and states the following under the penalties of perjury: 1. I am not a party to this action. 2. I am a physician duly licensed to practice medicine in the State of New York. I maintain an office for the practice of medicine and surgery at 61 North Park Avenue, Rockville Centre, New York. I earned my medical degree at the Stony Brook University School of Medicine in 1984, after which I completed a General Surgery residency in 1985 at Montefiore Hospital and Medical Center, Bronx, New York. In 1989 and 1990,1 trained in Cardiovascular & Thoracic surgery and Trauma Surgery at the University o f Southern California in Los Angeles, California. 3. Iam Board Certified in Surgery by the American Board o f Surgery, having been recertified in I am a Fellow o f the American College o f Surgeons, and have been practicing as a General Surgeon, Vascular Surgeon, Trauma Surgeon and Critical Care Surgeon for more than 30 years.

3 4. I have been asked by the law firm o f Torgan, Cooper & Aaron to submit this affirmation in support of the petitioner s motion seeking leave to file a notice o f claim. Having reviewed the pertinent records from Bellevue Hospital Center ( Bellevue ) and the Bronx Veterans Administration Hospital ( VA ), I believe, with a reasonable amount o f medical certainty, that plaintiff was under continuous care and treatment from Bellevue from June 5, 2015 to at least May 11, I have reviewed the Summons and Complaint and Bill o f Particulars in a companion action and Mr. Berman s relevant medical records, and have had access to the file o f plaintiffs attorneys. 6. In the early morning of June 5,2015, plaintiff entered an Au Bon Pain restaurant at 1251 Avenue o f the Americas, New York, New York. He slipped and fell on a slippery substance on the floor, caused by the actions o f window washers working on a scaffold above the exterior entrance to the restaurant. Mr. Berman lost his balance and fell on to his outstretched right arm and severely injured his right shoulder, right side and back. He was taken to NY Presbyterian Hospital Emergency Room by ambulance and was admitted with complaints of right shoulder and low back pain. His shoulder was x-rayed and he was diagnosed with a humeral head and coracoid process fracture, after which he was discharged with a sling on his right arm with instructions to consult with an orthopedist. 7. Later that evening, Mr. Berman called 911 after he experienced excruciating pain bilaterally on his lower back and left shoulder, and he was transported to Bellevue Hospital Center by ambulance, where he was admitted. Mr. Berman was an in-patient at Bellevue Hospital Center from June 5 to September 14,

4 8. Despite a plethora of entries in the Bellevue hospital record where Mr. Berman complained o f severe lower back pain, no examination or radiology studies of the lumbosacral spine were performed. In my opinion, with a reasonable degree of medical certainty, the physicians at Bellevue committed multiple acts o f malpractice. They ignored plaintiff s complaints of severe low back pain, not eased by morphine or Dilaudid, and failed to perform timely and appropriate neurological examinations and consultations. The neurological consultation did not take place until Mr. Berman suffered from paraplegia on the ninth, five days post-admission. The surgical decompression of plaintiffs spine was performed belatedly. Multiple complaints o f pain were simply ignored when they should have alerted the physicians of potential cord impingement and the possibility o f paralysis. 9. The record shows that Mr. Berman was complaining of severe back pain from the moment he entered the hospital. Incredibly, Bellevue staff ruled out cord compression without conducting any tests or undertaking any examinations to determine the cause o f plaintiffs low back pain. This is not my opinion; it is an indisputable fact based on what the staff at Bellevue wrote in the chart. Specifically, on page 3 o f the chart, it is noted, No concern for spinal cord compression given lack of bowel/bladder symptoms and other focal neurological deficit. No concern for vertebral fracture given lack o f focal tenderness in midline vertebrae. This premature exclusion is astounding in view o f the entry on the next page that Mr. Berman had intense pain even after receiving Dilaudid and IV morphine. He suffered from high respiratory rate (an indication of pain) (6)1and was in pain even at rest (7). 10. Mr. Berman could not walk or his ability to do so was severely limited (9). He could not stand or transfer or walk upon admission (9). He had uncontrolled pain (11). Despite 1 Numbers in parentheses refer to pages o f the Bellevue chart attached to the motion. 3

5 numerous references to low back pain, the staff had no concern about compression and made no attempt to determine its cause (14). Staff did not order X-rays, MRI s, CAT scans or similar radiographic tests. Furthermore, no neurological consults or workups were ordered until plaintiff was effectively paralyzed at a time that his condition could not be reversed. 11. My review of the hospital chart establishes that despite complaints o f severe low back pain, no radiology studies o f the lumbosacral spine were performed from June 5 to June 8, Furthermore, during this time, no neurological or physical examination was performed to assess his lumbosacral nerve roots, and no neurology consult was performed or even requested. 12. On June 9, 2015, the Bellevue notes document saddle anesthesia for which a neurology consult was ordered. Mr. Berman had been diagnosed with sepsis, and a lumbosacral spine MRI revealed an L-2 fracture, requiring emergency surgery. This surgery was delayed because o f Mr. Berman s respiratory impairment. 13. On June 15, 2015, Mr. Berman underwent surgery for repair and decompression of the L-2 fracture. Unsurprisingly, he still suffers from lower extremity paralysis and weakness, and is incontinent with respect to bowel and bladder movements. 14. Mr. Berman remained an in-patient at Bellevue Hospital Center until his discharge and transfer to the Bronx VA Hospital on September 14, He was transferred to James J. Peters Veteran Administration Medical Center in the Bronx (hereafter referred to as Bronx VA ) for rehabilitation. 15. From June 14, 2015 to the present, Mr. Berman has remained an inpatient at the Bronx VA in the Spinal Cord Injury Care Center ( SCICC ). He is bed-ridden, but can be hoisted into a motorized wheelchair. 4

6 16. The failure o f the Bellevue physicians and staff to acknowledge, treat and analyze Mr. Berman s continual complaints of low back pain constituted an act o f medical malpractice that resulted directly in his paralysis and sequelae. Indeed, it appears that the Bellevue staff decided early on not to consider the possibility o f a low back lesion, even when painkillers did not ameliorate his pain. Had they done so, surgery would have been performed in a timely manner, the lesion would have been treated and he would not be paralyzed. 17. While Mr. Berman has been confined to the VA Hospital from June 14, 2015 to the present, the Bellevue records show that he was still under the care and treatment o f Bellevue physicians, who actively managed his case until at least May 11,2016. On October 13,2015, Mr. Berman was transported back to Bellevue for an examination with Dr. Peter Rozman and Dr. Stephen Russell at the Neurosurgery Department and ambulatory clinic. His October 16, 2015 CAT scans o f the spine were reviewed by Kristen Muller MP at Bellevue, and medical treatment and care orders were generated on October 30, On November 6, 2015, Chief Shekhtman reviewed Mr. Berman s CAT scans. Kristen Mueller, NP told Mr. Berman s wife, Kathleen, in a telephone call that Bellevue had directed that Mr. Berman continue to wear a thoracolumbarsacral orthosis back brace ( TLSO ) for three more months, undergo a repeat CAT scan at the VA in three months, and have a follow up visit with the Bellevue Neurosurgery Department. 18. On January 21, 2016, Ms. Berman brought Mr. Berman s January 13, 2016 CAT scans from the VA to be reviewed by the Bellevue Neurosurgery Department, after which Mr. Berman was ordered to continue using the TLSO and have a repeat CAT scan in three months, at which time the CAT scan images were to be brought to Bellevue. On May 11,2016, Ms. Berman brought the April 12, 2016 CAT scans to Bellevue where they were reviewed by Christine 5

7 Sideris RPA and Dr. Russell at the Neurosurgery Department. Mr. Berman was directed to discontinue use of the TLSO. 19. Thus, though he was hospitalized at the VA hospital, Mr. Berman was being actively treated by Bellevue until at least May 11, Mr. Berman has submitted a confirmatory affidavit attesting to this fact. 20. It is my opinion, with a reasonable degree of medical certainty that the medical records and available evidence establish that Mr. Berman was under the continuous treatment of Bellevue until at least May 11, And I believe, as a physician and practicing New York attorney,2 that the medical negligence of Bellevue is readily apparent on the face o f the Bellevue records, which show that plaintiffs severe and lasting low back pain was systematically and deliberately ignored until it was too late to change his medical course in violation o f accepted medical practice. Had the staff and employees at Bellevue comported with accepted practice, Mr. Berman s paralysis would not have occurred or would have been greatly reduced. Dated: August 8, 2017 I am a licensed attorney in the State o f New York as well as a licensed medical doctor. 6