Originally published in the New York Law Journal, an ALM Media publication, on October 10, 2017.
By: Jason Grant
An expert witness and a fellow physician raised triable issues of fact regarding whether a gastroenterologist departed from the standard of care when he catheterized a patient with an inflamed bile duct, a state appeals court ruled Tuesday.
An Appellate Division, First Department, panel found that despite Dr. Louis May providing experts who said that the plaintiff’s bile duct perforation occurred before his actions, triable issues of fact were raised “as to whether Dr. May caused the … perforation when he conducted the ERCP [endoscopic retrograde cholangiopancreatography] or exacerbated decedent’s injuries by advancing the catheter and performing excessive manipulation.”
The summary judgment question—and, in turn, the divergence between experts and two doctors who treated the patient at Good Samaritan Hospital—focused largely on evidence of who and what caused the perforation.
In 2002, Dr. Thomas Facelle removed the Cadichon’s gallbladder. She later returned to the hospital with pain and, after bile duct scans, May performed an ERCP to take X-rays of the area through an endoscope and possibly repair a duct leak, according to the decision.
The plaintiffs alleged both procedures were performed negligently.
In testimony, the two physicians diverged on who perforated the duct, wrote Justices Rosalyn Richter, Judith Gische, Barbara Kapnick, Marcy Kahn and Cynthia Kern in Cadichon v. Facelle, 16878/03. Facelle’s records indicated May advised him that a catheter he inserted perforated the duct and entered the abdominal cavity. May said he only advised Facelle of leakage from an existing perforation.
The panel wrote that “as an initial matter, Dr. May established his prima facie right to summary judgment” based on “his deposition testimony, decedent’s medical records and the affirmations of two experts who opined that there is no evidence of any departure from the standard of care.”
But the panel went on to find that, “plaintiff and Dr. Facelle raised triable issues of fact as to whether Dr. May caused the bile duct perforation.”
“Plaintiff’s expert opines that Dr. May departed from the accepted standard of care when he advanced the catheter knowing the decedent was at high risk for duct injury due to her post-surgical inflammation, and record evidence demonstrates that her bile duct was not healthy,” the panel wrote, adding that “Dr. Facelle testified that he was summoned to the ERCP procedure by Dr. May because it was Dr. May who perforated the bile duct.”
Brian Isaac of Pollack, Pollack, Isaac & DeCicco represented Cadichon in the appeal. Paul Weitz, of Paul Weitz & Associates, the attorney of record for the Cadichon family, said in an email, “The Cadichon family is extremely gratified by the court’s decision and they look forward to their day in court.” Neither Melinda Kollross, a shareholder at Clausen Miller who represented May, nor Barbara Goldberg, a partner at Martin Clearwater & Bell, Facelle’s lawyer, could be reached.