LaPatin v Center for Special Surgery Care, Inc.
Annotate this CaseDecided on November 28, 2005
Supreme Court, New York County
Melanie LaPatin and Tony Meredith, Plaintiffs,
against
Center for Special Surgery Care, Inc., Moshe Rubin, M. Gilberg, N. Tadsare, D. Brisha and Maureen Johnston, Defendants.
123048/01
Eileen Bransten, J.
Upon the foregoing papers, it is ordered that this order to show cause seeking "summary judgment, a dismissal and/or preclusion" as to defendant Moshe Rubin, M.D., see, Order to Show Cause, at 1, is granted in part. Plaintiffs' cross-motion for an Order precluding Dr. Rubin's co-defendants from invoking the limited liability benefits of CPLR Article 16 based on Dr. Rubin's acts or omissions is granted based on the co-defendants' 3101(d) expert disclosure.
In this medical malpractice action, plaintiffs allege that Melanie LaPatin suffered physical and psychiatric injuries because disinfecting solution was not removed from a scope used during her colonoscopy, causing a burn or ulcer. Affirmation in Support of Dr. Rubin's Motion ("Aff. Supp."), at 1. Dr. Rubin, a gastroenterologist, performed the colonoscopy at The Center For Specialty Care, which along with nurses and a medical assistant are co-defendants in the action (they will collectively be referred to as the "Center Co-Defendants"). Very shortly before trial (indeed, the trial date was adjourned to allow for this application), Dr. Rubin made this motion for, among other things, summary judgment dismissal of the action against him. At the outset, this Court cannot grant summary judgment because Dr. Rubin has not established any cause, much less good cause, for the delay in making this motion. See, Brill v. City of New York, 2 NY3d 648, 652 (2004); see also, Miceli v. State Farm Mutual Automobile Ins. Co., 3 NY3d [*2]725, 726 (2004).
Additionally, summary judgment must be denied because Dr. Rubin failed to establish through medical evidence a lack of negligence. See, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985) (movant must tender sufficient evidence to eliminate any material issues of fact from the case); see also, Masucci v. Feder, 196 AD2d 416, 420 (1st Dept. 1993) (movant must establish that plaintiff's cause of action has no merit to demonstrate prima facie entitlement to judgment as a matter of law); Joswick v. Lenox Hill Hosp., 161 AD2d 352, 354 (1st Dept. 1990) (absent testimony and expert evidence establishing lack of malpractice, no entitlement to summary judgment).
Contrary to plaintiffs' contentions (see, Attorney's Affirmation in Support of Plaintiffs' Cross-Motion, at ¶ 21; Reply Affirmation by plaintiffs' counsel, at ¶ 3), lack of opposition to a motion for summary judgment does not warrant granting dismissal. The movant must establish entitlement to judgment as a matter of law in order to prevail. See, Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 ("Failure to make [a prima facie] showing requires a denial of the motion, regardless of the sufficiency of the opposing papers"); Alvarez v. Prospect Hospital, 68 NY2d 320, 324 (1986).
Next, based on the plaintiffs' and the Center Co-Defendants' CPLR 3101(d) expert disclosures, neither of which includes evidence of any departure by Dr. Rubin, Dr. Rubin moves for preclusion of assertion of expert evidence demonstrating that he departed from accepted medical practice. Order to Show Cause; Aff. Supp., at 6. Plaintiffs cross- move to preclude the Center Co-Defendants from asserting Article 16 based on Dr. Rubin's alleged actions or omissions if their case against him is dismissed.
CPLR 3101(d) mandates that "each party * * * shall disclose in reasonable detail the subject matter on which each expert is expected to testify * * * and a summary of the grounds for each expert's opinions" (emphasis added).
Plaintiffs' counsel has many times insisted that at trial plaintiffs will not assert any departures from accepted standards of medical practice based on Dr. Rubin's actions or inactions. Their Second Amended Witness Disclosure Pursuant to CPLR 3101(d)provides, among many other things, that it "is expected that at the time of trial [plaintiffs'] expert will testify as to Defendants' Center For Specialty Care Inc., M. Gilberg [a nurse at the facility] and D. Brisha's [a medical assistant at the facility] departures from good and accepted medical practice and that these departures are the proximate cause of the [Plaintiff's] injuries as enumerated in the Bills of Particulars. * * * It is expected that at the time of trial said expert will testify as to the Defendants' departures from good and accepted medical practice * * * in negligently and improperly performing the colonoscopy * * * [and] in failing to obtain an informed consent from plaintiff for the medical care, procedures and testing performed." Aff. Supp., at Ex. J.
There is no mention whatsoever of Dr. Rubin in plaintiffs' expert disclosure. Because plaintiffs' CPLR 3101(d) expert disclosure does not contain any evidence supporting assertion of departures against Dr. Rubin, and in fact plaintiffs have several times explicitly expressed that they do not ever intend to adduce any expert evidence based on his conduct, this Court will preclude plaintiffs from offering any expert evidence against Dr. Rubin and will grant dismissal of the complaint against him. See, e.g., Meyer v. Zeichner, 263 AD2d 597, 598 (3d Dept. 1999); Gardner v. Wider, 781 NYS2d 624 {1 Misc 3d 909(A)} (Sup. Ct. New York Cty. 2004); see [*3]also, Pauling v. Orentreich Medical Group, 14 AD3d 357, 358 (1st Dept. 2005) (affirming dismissal of action because without "expert testimony, plaintiff cannot establish a prima facie case of medical malpractice"), lv. denied 4 NY3d 710 (2005).
The 3101(d) expert witness disclosure by the Center Co-Defendants likewise makes absolutely no mention of Dr. Rubin. More specifically, the Center Co-Defendants' expert is expected to testify, among other things, that the "colonoscopy was conducted with due care and within the accepted medical standards * * * and also that proper informed consent was obtained." Aff. Supp., Ex. I, at ¶¶ 4, 7 (emphasis added).
Because the Center Co-Defendants have not expressedin their 3101(d) or otherwise any intent to offer expert testimony that Dr. Rubin departed from accepted medical practice, and indeed such an argument at this late stage would contradict their expert's anticipated broad testimony that "that the * * * colonoscopy was conducted with due care and within the accepted medical standards" and cause unfair surprise, the Center Co-Defendants are also precluded from offering any testimony at trial as to a departure by Dr. Rubin. Cf., Nestor v. Britt, 270 AD2d 192, 193 (1st Dept. 2000) (doctrine of estoppel against inconsistent positions precludes a party from "inequitably adopting a position directly contrary with an earlier assumed position in the same proceeding"). Unable to set forth expert testimony establishing any departure by Dr. Rubin, the Center Co-Defendants will not be able to successfully invoke CPLR Article 16 based on his action or inaction.
If the Center Co-Defendants sincerely intended to invoke the apportionment provisions of CPLR Article 16 based on Dr. Rubin's conduct, they should have made their allegations clear in opposition to this eve-of-trial motion (as by now they should know exactly what it is they will assert at trial). See, David D. Siegel, New York Practice, at § 168D, at 288 (4th ed. 2005) ("A defendant who would preserve [its] Article 16 rights against a co-defendant should be alert against any step that might take the co-defendant out of the picture").
If at trial plaintiffs somehow attempt at trial to assert that Dr. Rubin departed from accepted standards of medical practice, which in any event should not be permitted, then the Court will allow the Center Co-Defendants to amend their expert disclosure to allow them to invoke Article 16 of the CPLR based on Dr. Rubin's conduct.
Accordingly, it is
ORDERED that the motion by defendant Moshe Rubin, M.D. seeking "summary judgment, a dismissal and/or preclusion" is granted in part to the extent that the parties are precluded from asserting expert evidence against Dr. Rubin and plaintiffs' action against him is dismissed; it is further
ORDERED that plaintiffs' cross-motion for an Order precluding Dr. Rubin's co-defendants from invoking the limited liability benefits of CPLR Article 16 based on Dr. Rubin's acts or omissions is granted.
This constitutes the Decision and Order of the Court.
Dated: New York, New York
November 28, 2005ENTER [*4]
Hon. Eileen Bransten
Dated: November 28, 2005
EILEEN BRANSTEN, J.S.C.
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