New York Appellate Court Affirms Medical Malpractice Defendants Not Liable For Patient’s Stroke Due To Endocarditis

Background Facts

In May 2011, Barbara Petillo sought treatment from the defendant Paul Maller, her primary care doctor, for an unexplained fever. After treatment with oral antibiotics failed, Maller ordered a CT scan, among other tests. Based on Petillo’s history of lymphoma and the imaging results, which showed suspicious masses in her abdomen and lung, Maller referred Petillo to the defendant Alexander Hindenburg, a medical oncologist for the defendant Winthrop Oncology Hematology Associates, P.C., to assess her for a possible recurrence of lymphoma. Maller also referred Petillo to specialists in rheumatology and infectious disease. Petillo never consulted with an infectious disease specialist. Petillo consulted with a rheumatologist, the defendant Howard Futerman, on June 30, 2011, and July 14, 2011. Futerman ruled out any rheumatological disorder. Maller testified at his deposition that cancer was the next cause to rule out, and after that, infectious disease. Petillo testified at her deposition that it was her understanding that Maller referred her to Hindenburg to rule out lymphoma or any other cancer.

On July 19, 2011, Hindenburg examined Petillo and thereafter ordered a series of additional imaging tests and biopsies. Hindenburg saw Petillo three times—on July 19, 2011, September 6, 2011, and November 8, 2011—and after each visit, he issued reports that were sent to Maller. The July 19, 2011 report begins with the notation: “Patient is referred for an abdominal mass with bilateral pulmonary modules.” The September 6, 2011 report begins with the notation: “The patient returns here for a follow-up visit for her abdominal mass as well as lung nodules.” The November 8, 2011 report begins with the notation: “The patient returns here for a follow-up visit for her abnormal PET/CT scan suggestive of lymphadenopathy and also mesenteric mass.” Hindenburg was unable to definitively diagnose or rule out a malignancy, and on November 8, 2011, he referred Petillo to her pulmonologist and to an infectious disease specialist. Petillo did not consult with an infectious disease specialist before she was hospitalized on December 5, 2011. Upon her admission to the hospital, blood cultures showed that she had a bacterial infection that developed into endocarditis, an infection affecting the heart. Thereafter, she suffered a stroke, which allegedly was endocarditis-related.

In September 2012, Petillo filed her New York medical malpractice action to recover damages for medical malpractice against Hindenburg and Winthrop, among others. Petillo alleged that Hindenburg deviated from the standard of care, inter alia, by failing to perform or order a blood culture and certain other blood tests. The Hindenburg defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order entered November 6, 2015, the Supreme Court, inter alia, granted the motion. On December 8, 2015, a judgment was issued, upon the order, dismissing the complaint insofar as asserted against the Hindenburg defendants. Petillo appealed. During the pendency of the appeal, Petillo died, and Susan Abruzzi, as executor of Petillo’s estate, was substituted for Petillo.

New York Appellate Court Opinion

The Supreme Court of the State of New York Appellate Division, Second Judicial Department held in its November 15, 2023 Decision & Order: “we conclude that the Hindenburg defendants demonstrated through their submissions that Hindenburg’s role was limited to evaluating whether there was a recurrence of lymphoma or any other cancer that needed to be addressed, that he did not depart from good and accepted practice in that regard, and that his duty of care as a medical oncologist did not extend to the alleged departures in failing to diagnose endocarditis. In opposition, Petillo failed to raise a triable issue of fact.”

Source Abruzzi v. Maller, 2023 NY Slip Op 05704.

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