The opinion of the court was delivered by: Christopher C. Conner, United States District Judge
Before the court is a motion for summary judgment (doc. 33) filed by
defendants Cardiac Diagnostic Associates and Dr. Jay Nicholson
("Nicholson defendants"). The motion has been fully briefed, oral
argument on the motion was conducted on September 24, 2002,*fn1 and the
motion is now ripe for disposition.
This is a medical malpractice case. Plaintiffs' claims against the
Nicholson defendants arise out of their allegedly negligent treatment of
Plaintiff Jose Calle's myocardial infarction on August 14, 1999. (Doe.
35,¶ 27). The following material facts are undisputed.*fn2
Plaintiffs Jose and Luz Calle commenced the above-captioned medical
malpractice action on August 13, 2001 by filing a complaint against York
Hospital and Dr. Boglarka Szabo. In their original complaint, plaintiffs
contended that York Hospital and Dr. Szabo were negligent in their care
and treatment of Mr. Calle on August 14, 1999. Plaintiffs filed an
amended complaint on November 28, 2001, in which they dropped Dr. Szabo
as a defendant and added the Nicholson defendants. In their amended
complaint, plaintiffs allege that the Nicholson defendants were negligent
in their care and treatment of Mr. Calle on August 14, 1999 in the
(1) failing to use anti-coagulant drug therapy; (2) failing to
refer Mr. Calle to a catheterization lab; and (3) failing to
perform an angioplasty.
(Doe. 15, ¶¶ 21, 23 and 27). The allegations of negligence contained
in plaintiffs' November 28, 2001 amended complaint arise out of the same
set of operative facts as the allegations of negligence contained in
plaintiffs' initial (August 13, 2001) complaint.
Dr. Nicholson's role in the care and treatment of Mr. Calle began on
August 14, 1999 when he reviewed Mr. Calle's electrocardiogram. See doc
49, exhibit A, Deposition of Jay Nicholson, M.D., pp. 33-35 ("Nicholson
Dep."). On August 14, 1999, Dr. Nicholson also discussed the management
of Mr. Calle's care with Dr. Kathleen B. Kay. See doc. 51, exhibit C,
History & Physical Examination/Progress Notes of Kathleen B. Kay,
M.D., pg. 2. On August 15, 1999, Dr. Nicholson saw Mr. Calle for the
first time, whereupon he obtained Mr. Calle's consent for a heart
catheterization. Nicholson Dep. at 55-59. On August 16, 1999, Dr.
Nicholson performed Mr. Calle's heart catheterization and, thereafter,
discussed the results of the procedure with Mr. Calle. Id. at 74-75.
On August 16, 1999, following his heart catheterization, Mr. Calle
made inquiries about the failure to perform an angioplasty and when he
would undergo an
angioplasty. See doc. 49, exhibit A, Deposition of Jose
Calle, Part I, pp. 39-40 ("J. Calle Dep. I"). At the time of his
inquiry, Mr. Calle was under the impression that Dr. Nicholson did not
perform an angioplasty on him because Mr. Calle was an inmate. See id. at
39-40, 49-50 and doc. 49, exhibit A, Deposition of Jose Calle, Part II,
pg. 25 ("J. Calle Dep. II").
In September 1999, while in prison in Kentucky, Mr. Calle began
treating with Dr. David C. Booth. J. Calle Dep. I at 43.44. Mr. Calle
recalls that Dr. Booth asked him in September 1999 why the doctors at
York Hospital did not "do something" for him. Id. Dr. Booth's September
24, 1999 consultation report, which Dr. Booth read into the record at his
deposition, states in pertinent part as follows: The patient did not
receive reperfusion treatment... should have received reperfusion
treatment on August 14, 1999. . ..*fn3 Doc. 49, Exhibit A, Deposition
of David C. Booth, M.D., pp. 16-17, 19 ("Booth Dep.").
In October 1999, Mr. Calle began treating with Dr. Booth's colleague,
Dr. Pedro Moreno. See doc. 36, exhibit K, Deposition of Pedro Moreno,
M.D., pp. 21-22, 37 ("Moreno Dep."). Mr. Calle's case was presented at an
October 1999 catheterization conference attended by Dr. Moreno where it
was decided that Mr. Calle should be scheduled for elective angioplasty
in January 2000. Id. at 22-42. Dr. Moreno, who speaks Spanish, developed
a relationship with Mr. Calle's family, Id. at 22. On January 28, 2000,
Dr. Moreno performed an unsuccessful angioplasty on Mr. Calle. Id. at
44, 50-51. Mr. Calle recalls Dr. Moreno explaining on January 28, 2000
that the angioplasty was unsuccessful because "it wasn't done sooner."
J. Calle Dep. I at 44.
Plaintiff was "awakened" to the possibility that his injury was caused
by York Hospital and his doctors on January 28, 2000. See doc. 48, p. 13
("Mr. Calle neither knew nor should have known of his injury prior to his
awakening with Dr. Moreno on January 28, 2000.").
Summary judgment is proper when "the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a
matter of law." Fed.R.Civ.P. 56(c). A fact that will affect the outcome
of the case under the governing law is "material." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). "In determining whether an issue
of material fact exists, the court must consider all evidence in the
light most favorable to the non-moving party." ...