Summary judgment

Hospital fights on
in OR fire lawsuit

By David Baker
Posted December 20, 2011

An unreported lawsuit filed by a women who was burned when oxygen caught fire during a surgery has prompted a series of motions after all the defendants except Albany Memorial Hospital settled the patient’s claims.

The paper generated by Memorial’s legal fight fills a large box in the records room at the Albany County Clerk’s office. The documents in most lawsuits are in folders that can be lifted with one hand.

Here, according to legal papers, is what happened:

In April 2009, Hazel Volke underwent a temporal artery biopsy at Memorial Hospital. During the surgery Volke was given oxygen. An antiseptic called Chloraprep – which contains alcohol – was applied to the area. And a surgeon used a device powered by electricity.

The oxygen ignited and Volke received burns.

Volke filed a lawsuit, naming four doctors: Kelly Dennin, Paul Danker, David W. Girvan and Hie Sook Sacca. The suit also named Memorial Hospital, Albany Memorial Anesthesiologists; Albany Surgery Associates; the Anesthesia Group of Albany and two medical-equipment companies.

All but Albany Memorial Hospital settled the claims against them and a trial date was set. The hospital’s lawyers, Thuillez, Ford, Gold, Butler & Young, then filed a motion for summary judgment; Volke’s attorneys, Bond, Schoeneck & King, opposed the motion and cross-moved for judgment in her favor. Memorial filed papers opposing Volke’s motion.

The result was a decision and order in which Albany County Supreme Court Judge Joseph Teresi denied the hospital’s motions and granted summary judgment to Volke.

Quoting relevant decisions in other cases, Teresi said that a hospital is not usually liable for the actions of an independent doctor who is not an employee of the hospital. The only recognized exception, he wrote, is when the hospital’s staff knows that the doctor’s orders are so contrary to normal procedures that they should be questioned.

“On this record, Memorial failed to set forth sufficient evidentiary proof that the surgeon’s orders were not ‘clearly contraindicated by normal practice’ ” he wrote.

Teresi said the hospital submitted depositions of the surgeon, Kelly Dennin, and other people who were present for the surgery but because the transcripts were not signed they could not be considered. And even if they were allowed, Dennin had acknowledged in her deposition that she was aware of the factors she believed contributed to the fire.

One of the warnings for Chloraprep is that no electrocautery device is to be used close to where oxygen is being administered. And one of the hospital’s own training materials, “Principles of Eletrosurgery,” states that flammable preparation agents such as alcohol should not be used prior to electrosurgery, and that oxygen enriched environments should be avoided.

Teresi also was unimpressed by the written testimony of David Kim, who was presented by Memorial as a medical expert. Kim stated that he had attached a copy of his resume, but, Teresi wrote, no such document was attached. “Moreover, he neither explains nor substantiates his allegation that he is a physician and is Board Certified. On such bare unsupported allegations, Memorial failed to demonstrate that Kim is ‘possessed of the requisite skill, training, education, knowledge or experience from which it can be assumed that the opinion he rendered is reliable.”

An affidavit submitted by Memorial’s attorney was also rejected by the judge because the attorney did not have personal knowledge of the facts.

The issue, Teresi wrote, is whether the surgeon’s orders was so clearly contrary to normal practice that the hospital’s employees should have questioned them.

“Even considering Memorial’s otherwise inadmissible deposition transcripts, at her deposition the surgeon [Dennin] acknowledged being aware of each of the factors that she believed contributed to the fire. She applied the Chlorprep, she observed a hair in the surgical field, she saw the electocautery device she was using spark and did not instruct the anesthesiologist to discontinue oxygen. Despite these clearly contraindicated orders, Memorial’s staff did not inquire into their correctness.

“As such, Memorial raised no triable issues of fact as to its liability in this action. Accordingly, Plaintiff’s motion is granted.”

With that ruling, Memorial has two choices. It can pay up. Or it can appeal Teresi’s decision to the Appellate Division, thus filling another box with documents like the one on the shelves in the county clerk’s record room – and adding even more to the legal fees generated by both sides, fees that ultimately will be paid by the public.

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