Preview
FILED: NEW YORK COUNTY CLERK 09/05/2019 04:47 PM INDEX NO. 805488/2016
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/05/2019
SUPREME COURT OF THE CITY OF NEW YORK
COUNTY OF NEW YORK
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JACKIE MCNEILL, individually and as Administrator of
the Estate of EMMANUEL THILLET, Deceased, REPLY AFFIRMATION IN
FURTHER SUPPORT OF
Plaintiff, MOTION FOR SUMMARY
JUDGMENT
-against-
NEW YORK CITY HEALTH & HOSPITALS
CORPORATION, INDEX NO.: 805488/2016
Defendant.
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JONATHAN M. WALDAUER, an attorney admitted to practice before the courts
of the State of New York, affirms the following to be true pursuant to Rule 2106 of the CPLR and
subject to the penalties for perjury:
1. I am Associate Counsel in the Office of Andrea Cohen, General Counsel of
New York City Health + Hospitals. I represent the defendant NEW YORK CITY HEALTH AND
HOSPITALS CORPORATION (NYC Health + Hospitals/Harlem). I am fully familiar with the
facts and circumstances of this case based on my review of the file maintained by this office.
2. This Reply affirmation is submitted in further support of the defendant’s
motion for summary judgment. The defendant’s moving papers established prima facie entitlement
to judgment as a matter of law. The plaintiff’s opposition fails to rebut that presumption and the
defendant is therefore entitled to dismissal of the plaintiff’s complaint.
3. The plaintiff’s entire case rests on whether or not the decedent, Emmanuel
Thillet, reported and/or was coughing up blood (hemoptysis) in the Harlem Hospital emergency
department on May 23, 2016. The record is clear from that day. Mr. Thillet did not report
hemoptysis to any Harlem Hospital medical providers and he was not observed coughing up blood
in the ED. In fact, the examination ED physician’s assistant Craig Baithwaite testified that he did
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not remember Mr. Thillet even coughing once during examination. Braithwaite at p.31 ln. 21-22.
Nevertheless, the plaintiff claims that since to the Harlem Hospital ED records from the following
day, May 24, 2016, document that Mr. Thillet reported hemoptysis for the past two days, he must
therefore have been coughing up blood on May 23 in the Harlem ED. This is mere speculation and
insufficient to establish a question of fact. The record is uncontroverted and the idea that Harlem
Hospital staff just failed to document such a significant medical finding is an unreasonable
allegation as a matter of law.
4. Further, the plaintiff’s claim that had Harlem Hospital staff performed a
more thorough evaluation in the ED on May 23, Mr. Thillet would have reported the hemoptysis,
is likewise capricious and insufficient to rebut the defendant’s prima facie case. Such a reading of
the facts is unsupported by the records and should not be allowed to get to a jury.
5. What Mr. Thillet reported to Harlem Hospital staff in the ED on May 24,
2016, is irrelevant to the treatment provided in the ED the day before. On the latter date, not only
did Mr. Thillet report hemoptysis, it is documented that he was observed coughing up blood. Not
coincidently, Mr. Thillet was quickly admitted to the hospital with presumed pneumonia, which
was later diagnosed as community acquired, methicillin resistant staph aureus (MRSA) necrotizing
pneumonia, a virulent and, in this case, lethal disease. What matters in this case, and will determine
the defendant’s liability, or lack thereof, is that Mr. Thillet did not report to Harlem Hospital staff
nor did any medical provider observe hemoptysis on May 23, 2016. Mr. Thillet only reported two
to three days of coughing with resultant chest wall tenderness. Based on the reported and
documented symptoms Mr. Thillet presented with on May 23, 2016, the defendant has established
that Mr. Thillet was diagnosed and treated appropriately.
6. The plaintiff’s claim that the PA Braithwaite was not supervised by an
attending physician on May 23, 2016, because Mr. Thillet was never seen by an attending
physician and PA Braithwaite did not discuss Mr. Thillet’s case with the attending physician before
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discharge, is patently false. PA Braithwaite testified that attendant physician supervision in the
Fast Track area of the Harlem ED, where he saw Mr. Thillet, consists of “an attending available
for me to consult with for any particular clinical issues or problems that might come up, depending
on my discretion and . . . the attending that I'm working with.” Braithwaite at p.12 ln. 23-24, p.13
ln. 2-5. As such, the evidence establishes that PA Braithwaite was properly supervised by an ED
attending physician on May 24, 2016, and the plaintiff’s claims otherwise are without evidentiary
support. Further, the plaintiff has failed to establish how the outcome of the case would have been
different had PA Braithwaite discussed Mr. Thillet case with the attending ED physician or had
that attending had personally seen Mr. Thillet. Whether it was appropriate, a violation of hospital
protocol, and/or within PA Braithwaite’s discretion not to speak with the attending physician about
Mr. Thillet’s case prior to discharge does not change whether the treatment was otherwise in
accordance with the standard of care and a proximate cause of the alleged injuries.
7. The defendant’s expert Dr. Bruce Farber, a physician with over 35 years of
medical practice, an attending at a major New York City metropolitan hospital facility, and a Chief
of Infectious Disease for over 15 years, stated that Mr. Thillet’s treatment in the Harlem Hospital
ED on May 23, 2016, was appropriate and in accordance with the standard of care. Defendant’s
Exhibit A at ¶9. Dr. Farber established that:
Mr. Thillet’s discharge was appropriate based on the history
provided, that is, a prior URI and a painful cough for the past two
to three days, normal vital signs, unremarkable physical exam,
ability to speak normally, and good response to pain medication and
cough suppression. The diagnosis of URI, prescriptions for pain
medication and cough suppressant, and instructions to follow with
his primary care physician, were likewise appropriate and in
accordance with the standard of care. Further, it is my opinion to a
reasonable degree of medical certainty that the type of cough, that
is, productive versus non-productive, was irrelevant to Mr. Thillet’s
diagnosis and treatment. Lastly, it is also my opinion to a
reasonable degree of medical certainty that there was no indication
to order a chest x-ray and labs. Mr. Thillet’s lungs were clear on
examination and his vitals were normal. He was not short of breath
or in any respiratory distress. Id.
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8. Without evidence that Mr. Thillet was suffering from hemoptysis on May
23, 2016, the plaintiff cannot prove negligence. The plaintiff’s infectious disease expert’s basis for
his/her entire opinion rests on the claim that “the medical records of May 24, 2016 – when [Mr.
Thillet] returned to the ED – . . . indicate . . . 3 days of hemoptysis.” Plaintiff’s Exhibit A at ¶8. As
shown above, the records from May 24, 2016, cannot establish Mr. Thillet’s presenting complaints,
reports, and observed symptoms from the day before. The defendant’s prima facie case is therefore
unrebutted.
9. The discrepancies in the ESI at triage (4) and in PA Braithwaite’s note (3)
and as well as the plaintiff’s baseless claim that the hospital record “may have been altered” are
inconsequential to the court’s assessment as to whether there is a question of fact as to negligence
and/or proximate causation. First, as PA Braithwaite testified, ESI is a measure of “how many
resources the patient is thought to need when they present to triage.” Braithwaite at p.32 ln. 6-8. It
may determine whether the patient is seen in the Fast Track or the main sections of the ED, but
does not change the patient’s symptoms, diagnosis, or treatment. The discrepancies in ESI is
therefore irrelevant and merely an attempt by the plaintiff to obfuscate the facts.
10. Second, the plaintiff’s claim in opposition to the instant motion that the
defendant essentially committed fraud (“whether the record was altered in an attempt to conceal
malpractice”) was not properly plead in the Notice of Claim, the Complaint, and the Bill of
Particulars, was not litigated through discovery, and has no evidentiary support. In fact, the case
cited by the plaintiff, Devadas v Niksarli, No. 107637/07, 2009 WL 1136792 (N.Y. Sup. Ct. Apr.
20, 2009), actually undermines her allegations. The plaintiffs in Devadas submitted “the affidavit
of a forensic expert who analyzed the medical records” in support of their motion to amend the
pleadings and in opposition to the defendants’ motions for summary judgment. The forensic expert
testified that the defendant physician made various notes and addendums to the records at different
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times, which supported a claim of fraud. The plaintiff in this case has made no such showing and
the allegations of fraud and concealment are disingenuous and should be disregarded by the court.
11. The court should likely disregard the plaintiff’s claim that since the Harlem
Hospital chart is not certified it cannot be relied upon to establish the defendant’s prima facie case
of entitlement to summary judgment. The Harlem Hospital chart annexed to the defendant’s
moving papers was utilized at the defendant depositions without objection from the plaintiff. The
plaintiff’s attempt to raising such an objection at the conclusion of discovery is therefore improper.
12. As for the second Harlem Hospital ED presentation, on May 24, 2016, the
defendant established in its moving papers, through the testimony of expert Dr. Farber, that “the
disease process [that infected Mr. Thillet] was so aggressive that, even with timely and appropriate
treatment, and the right antibiotic therapy, the disease overwhelmed Mr. Thillet’s immune
system,” and caused his death. Defendant’s Exhibit A at ¶15. As such, the plaintiff’s laundry list
of negligence claims (e.g., delayed intubation, failure to perform bronchoscopy, delayed sputum
cultures, etc.) that occurred after Mr. Thillet’s re-presentation to the Harlem ED on May 24, 2016,
fail to raise a question of fact as to whether such alleged malpractice would have changed the
outcome in this case.
WHEREFORE, it is respectfully requested that this court issue an Order granting
the defendant summary judgment and dismissing the plaintiff’s complaint, and for such other and
further relief as is just and proper.
JONATHAN
Digitally signed by JONATHAN
Dated: New York, New York WALDAUER
DN: cn=JONATHAN WALDAUER, o=NYC
September 6, 2019 HEALTH + HOSPITALS, ou=OFFICE OF
WALDAUER LEGAL AFFAIRS,
email=WALDAUEJ@NYCHHC.ORG, c=US
Date: 2019.09.05 16:42:09 -04'00'
________________________________
JONATHAN M. WALDAUER, ESQ
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Preview
FILED: NEW YORK COUNTY CLERK 09/05/2019 04:47 PM INDEX NO. 805488/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/05/2019 SUPREME COURT OF THE CITY OF NEW YORK COUNTY OF NEW YORK ----------------------------------------------------------------------- x JACKIE MCNEILL, individually and as Administrator of the Estate of EMMANUEL THILLET, Deceased, REPLY AFFIRMATION IN FURTHER SUPPORT OF Plaintiff, MOTION FOR SUMMARY JUDGMENT -against- NEW YORK CITY HEALTH & HOSPITALS CORPORATION, INDEX NO.: 805488/2016 Defendant. ----------------------------------------------------------------------- x JONATHAN M. WALDAUER, an attorney admitted to practice before the courts of the State of New York, affirms the following to be true pursuant to Rule 2106 of the CPLR and subject to the penalties for perjury: 1. I am Associate Counsel in the Office of Andrea Cohen, General Counsel of New York City Health + Hospitals. I represent the defendant NEW YORK CITY HEALTH AND HOSPITALS CORPORATION (NYC Health + Hospitals/Harlem). I am fully familiar with the facts and circumstances of this case based on my review of the file maintained by this office. 2. This Reply affirmation is submitted in further support of the defendant’s motion for summary judgment. The defendant’s moving papers established prima facie entitlement to judgment as a matter of law. The plaintiff’s opposition fails to rebut that presumption and the defendant is therefore entitled to dismissal of the plaintiff’s complaint. 3. The plaintiff’s entire case rests on whether or not the decedent, Emmanuel Thillet, reported and/or was coughing up blood (hemoptysis) in the Harlem Hospital emergency department on May 23, 2016. The record is clear from that day. Mr. Thillet did not report hemoptysis to any Harlem Hospital medical providers and he was not observed coughing up blood in the ED. In fact, the examination ED physician’s assistant Craig Baithwaite testified that he did 1 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 04:47 PM INDEX NO. 805488/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/05/2019 not remember Mr. Thillet even coughing once during examination. Braithwaite at p.31 ln. 21-22. Nevertheless, the plaintiff claims that since to the Harlem Hospital ED records from the following day, May 24, 2016, document that Mr. Thillet reported hemoptysis for the past two days, he must therefore have been coughing up blood on May 23 in the Harlem ED. This is mere speculation and insufficient to establish a question of fact. The record is uncontroverted and the idea that Harlem Hospital staff just failed to document such a significant medical finding is an unreasonable allegation as a matter of law. 4. Further, the plaintiff’s claim that had Harlem Hospital staff performed a more thorough evaluation in the ED on May 23, Mr. Thillet would have reported the hemoptysis, is likewise capricious and insufficient to rebut the defendant’s prima facie case. Such a reading of the facts is unsupported by the records and should not be allowed to get to a jury. 5. What Mr. Thillet reported to Harlem Hospital staff in the ED on May 24, 2016, is irrelevant to the treatment provided in the ED the day before. On the latter date, not only did Mr. Thillet report hemoptysis, it is documented that he was observed coughing up blood. Not coincidently, Mr. Thillet was quickly admitted to the hospital with presumed pneumonia, which was later diagnosed as community acquired, methicillin resistant staph aureus (MRSA) necrotizing pneumonia, a virulent and, in this case, lethal disease. What matters in this case, and will determine the defendant’s liability, or lack thereof, is that Mr. Thillet did not report to Harlem Hospital staff nor did any medical provider observe hemoptysis on May 23, 2016. Mr. Thillet only reported two to three days of coughing with resultant chest wall tenderness. Based on the reported and documented symptoms Mr. Thillet presented with on May 23, 2016, the defendant has established that Mr. Thillet was diagnosed and treated appropriately. 6. The plaintiff’s claim that the PA Braithwaite was not supervised by an attending physician on May 23, 2016, because Mr. Thillet was never seen by an attending physician and PA Braithwaite did not discuss Mr. Thillet’s case with the attending physician before 2 2 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 04:47 PM INDEX NO. 805488/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/05/2019 discharge, is patently false. PA Braithwaite testified that attendant physician supervision in the Fast Track area of the Harlem ED, where he saw Mr. Thillet, consists of “an attending available for me to consult with for any particular clinical issues or problems that might come up, depending on my discretion and . . . the attending that I'm working with.” Braithwaite at p.12 ln. 23-24, p.13 ln. 2-5. As such, the evidence establishes that PA Braithwaite was properly supervised by an ED attending physician on May 24, 2016, and the plaintiff’s claims otherwise are without evidentiary support. Further, the plaintiff has failed to establish how the outcome of the case would have been different had PA Braithwaite discussed Mr. Thillet case with the attending ED physician or had that attending had personally seen Mr. Thillet. Whether it was appropriate, a violation of hospital protocol, and/or within PA Braithwaite’s discretion not to speak with the attending physician about Mr. Thillet’s case prior to discharge does not change whether the treatment was otherwise in accordance with the standard of care and a proximate cause of the alleged injuries. 7. The defendant’s expert Dr. Bruce Farber, a physician with over 35 years of medical practice, an attending at a major New York City metropolitan hospital facility, and a Chief of Infectious Disease for over 15 years, stated that Mr. Thillet’s treatment in the Harlem Hospital ED on May 23, 2016, was appropriate and in accordance with the standard of care. Defendant’s Exhibit A at ¶9. Dr. Farber established that: Mr. Thillet’s discharge was appropriate based on the history provided, that is, a prior URI and a painful cough for the past two to three days, normal vital signs, unremarkable physical exam, ability to speak normally, and good response to pain medication and cough suppression. The diagnosis of URI, prescriptions for pain medication and cough suppressant, and instructions to follow with his primary care physician, were likewise appropriate and in accordance with the standard of care. Further, it is my opinion to a reasonable degree of medical certainty that the type of cough, that is, productive versus non-productive, was irrelevant to Mr. Thillet’s diagnosis and treatment. Lastly, it is also my opinion to a reasonable degree of medical certainty that there was no indication to order a chest x-ray and labs. Mr. Thillet’s lungs were clear on examination and his vitals were normal. He was not short of breath or in any respiratory distress. Id. 3 3 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 04:47 PM INDEX NO. 805488/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/05/2019 8. Without evidence that Mr. Thillet was suffering from hemoptysis on May 23, 2016, the plaintiff cannot prove negligence. The plaintiff’s infectious disease expert’s basis for his/her entire opinion rests on the claim that “the medical records of May 24, 2016 – when [Mr. Thillet] returned to the ED – . . . indicate . . . 3 days of hemoptysis.” Plaintiff’s Exhibit A at ¶8. As shown above, the records from May 24, 2016, cannot establish Mr. Thillet’s presenting complaints, reports, and observed symptoms from the day before. The defendant’s prima facie case is therefore unrebutted. 9. The discrepancies in the ESI at triage (4) and in PA Braithwaite’s note (3) and as well as the plaintiff’s baseless claim that the hospital record “may have been altered” are inconsequential to the court’s assessment as to whether there is a question of fact as to negligence and/or proximate causation. First, as PA Braithwaite testified, ESI is a measure of “how many resources the patient is thought to need when they present to triage.” Braithwaite at p.32 ln. 6-8. It may determine whether the patient is seen in the Fast Track or the main sections of the ED, but does not change the patient’s symptoms, diagnosis, or treatment. The discrepancies in ESI is therefore irrelevant and merely an attempt by the plaintiff to obfuscate the facts. 10. Second, the plaintiff’s claim in opposition to the instant motion that the defendant essentially committed fraud (“whether the record was altered in an attempt to conceal malpractice”) was not properly plead in the Notice of Claim, the Complaint, and the Bill of Particulars, was not litigated through discovery, and has no evidentiary support. In fact, the case cited by the plaintiff, Devadas v Niksarli, No. 107637/07, 2009 WL 1136792 (N.Y. Sup. Ct. Apr. 20, 2009), actually undermines her allegations. The plaintiffs in Devadas submitted “the affidavit of a forensic expert who analyzed the medical records” in support of their motion to amend the pleadings and in opposition to the defendants’ motions for summary judgment. The forensic expert testified that the defendant physician made various notes and addendums to the records at different 4 4 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 04:47 PM INDEX NO. 805488/2016 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 09/05/2019 times, which supported a claim of fraud. The plaintiff in this case has made no such showing and the allegations of fraud and concealment are disingenuous and should be disregarded by the court. 11. The court should likely disregard the plaintiff’s claim that since the Harlem Hospital chart is not certified it cannot be relied upon to establish the defendant’s prima facie case of entitlement to summary judgment. The Harlem Hospital chart annexed to the defendant’s moving papers was utilized at the defendant depositions without objection from the plaintiff. The plaintiff’s attempt to raising such an objection at the conclusion of discovery is therefore improper. 12. As for the second Harlem Hospital ED presentation, on May 24, 2016, the defendant established in its moving papers, through the testimony of expert Dr. Farber, that “the disease process [that infected Mr. Thillet] was so aggressive that, even with timely and appropriate treatment, and the right antibiotic therapy, the disease overwhelmed Mr. Thillet’s immune system,” and caused his death. Defendant’s Exhibit A at ¶15. As such, the plaintiff’s laundry list of negligence claims (e.g., delayed intubation, failure to perform bronchoscopy, delayed sputum cultures, etc.) that occurred after Mr. Thillet’s re-presentation to the Harlem ED on May 24, 2016, fail to raise a question of fact as to whether such alleged malpractice would have changed the outcome in this case. WHEREFORE, it is respectfully requested that this court issue an Order granting the defendant summary judgment and dismissing the plaintiff’s complaint, and for such other and further relief as is just and proper. JONATHAN Digitally signed by JONATHAN Dated: New York, New York WALDAUER DN: cn=JONATHAN WALDAUER, o=NYC September 6, 2019 HEALTH + HOSPITALS, ou=OFFICE OF WALDAUER LEGAL AFFAIRS, email=WALDAUEJ@NYCHHC.ORG, c=US Date: 2019.09.05 16:42:09 -04'00' ________________________________ JONATHAN M. WALDAUER, ESQ 5 5 of 5