Concepcion v Walsh

[*1] Concepcion v Walsh 2005 NY Slip Op 52391(U) [21 Misc 3d 1134(A)] Decided on July 13, 2005 Supreme Court, Bronx County Stinson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 13, 2005
Supreme Court, Bronx County

Jonathan Concepcion, an infant by his mother and natural guardian, IRIS VERA, Plaintiff,

against

Robert Walsh, GLASHA REALTY CORP., 1165 MORRIS AVENUE REALTY CORP., NOREEN R. COYNE, JOHN HEARN and DR. BARBARA SAEED, Defendants.



27848/2001



Counsel for plaintiff:

Fitzgerald & Fitzgerald, 538 Riverdale Avenue, Yonkers, NY 10705

by John M. Daly, Esq.

Counsel for defendant:

McAloon & Friedman, PC,

123 Williams Street, NY 10038-3804

by Benjamin J. Goldberg, Esq.

Betty Owen Stinson, J.

This motion by defendant Dr. Barbara Saeed for summary judgment dismissing the complaint and all cross-claims against her is granted.

The infant plaintiff was allegedly injured by exposure to a hazardous lead paint condition while residing in apartment 4D at 1165 Morris Avenue in Bronx County and at least one subsequent residence. On August 3, 1992, when the infant was 14 months old, plaintiff took him to a pediatrician, defendant Dr. Barbara Saeed, who ordered a blood test showing the infant had a blood lead level of 5 mcg/dl (micrograms per deciliter), a level considered within "normal" limits at that time. Dr. Saeed testified that no treatment was indicated, but that her office personnel filled out a lead survey form with the plaintiff, Dr. Saeed gave plaintiff pamphlets with information about lead poisoning and discussed lead poisoning hazards with the plaintiff.

The infant was not tested for lead again until a regular check-up in July 21, 1993, at the age of two years and two months, when he was found to have 18 mcg/dl of lead in his blood. Plaintiff was notified of the results by Dr. Saeed on August 4, 1993, given a prescription for vitamins and iron for the infant and referred to the Montefiore Lead Clinic. Dr. Saeed's medical records for the infant reflect the referral. Plaintiff had already moved out of apartment 4D at 1165 Morris Avenue the day before, August 3, 1993. Dr. Saeed continued to treat the infant and take blood tests thereafter, but the infant's blood lead levels remained between 12 and 8 mcg/dl for the next three years.

At a statutory hearing on October 25, 1995, plaintiff testified that her four other children were tested for lead and none showed any evidence of lead in their blood. She testified that the infant plaintiff would put things in his mouth and she would hit him in the mouth to show him he should not (General Municipal Law 50-h testimony of Iris Vera at 9-10).

Plaintiff testified at her deposition that she could not remember whether Dr. Saeed had discussed lead paint hazards with her or referred her to the Montefiore Lead Clinic (Deposition of Iris Vera, October 2, 2003 at 20-21, 76-79). She stated that "we probably did talk about it or something . . ." (Id. at 92-93). She testified that the infant had no physical problems or speech or [*2]language deficits (Id. at 83-84). In an affidavit dated October 19, 2004, plaintiff stated that she "really" did not "believe" Dr. Saeed ever referred her to the Montefiore Lead Clinic, ever gave her anticipatory guidance or ever discussed the hazards of lead paint poisoning with her because she would have remembered that and followed those instructions (Affidavit of Iris Vera, October 19, 2004, paragraph 27).

In 2001, plaintiff commenced this action against the former owners of 1165 Morris Avenue, the owners of plaintiff's subsequent residence and Dr. Saeed. Plaintiff alleged the infant suffered chronic lead poisoning which began even at the lowest levels of exposure considered to be "within normal limits", Dr. Saeed departed from standard medical practice in her treatment of the infant and the infant suffered injury from lead poisoning as a result of Dr. Saeed's failure to treat him properly. Plaintiff argued in these papers that the infant's deficits are manifested by speech delays and hyperactivity. At the close of discovery, Dr. Saeed moved for summary judgment dismissing the action against her. In addressing a companion motion by other defendants in this case, this court previously found, by order dated July 11, 2005, that plaintiff cannot show either that lead paint in her apartment accounted for the infant's mild blood lead levels or that he suffered a compensable injury due to exposure to lead because he suffers from an independent organic brain injury and there are, in addition, other alternative explanations for his "behavioral and academic" issues.

Summary judgment is appropriate when there is no genuine issue of fact to be resolved at trial and the record submitted warrants the court as a matter of law in directing judgment (Andre v. Pomeroy, 35 NY2d 361 [1974]). A party opposing the motion must come forward with admissible proof that would demonstrate the necessity of a trial as to an issue of fact (Friends of Animals v. Associated Fur Manufacturers, 46 NY2d 1065 [1979]). Bare conclusory assertions of an expert are insufficient to defeat summary judgment (Wright v. NYCHA, 208 AD2d 327 [1st Dept 1995]). While an expert may reach conclusions in his own area of expertise, he may only do so on the basis of established facts (id.).

Evidence may not be submitted to a jury which requires the jury to speculate (Smith v. Wisch, 77 AD2d 619 [2nd Dept 1980]; see also Detone v. Bullit Courier Service, 140 AD2d 278 [1st Dept], lv to app. denied 73 NY2d 702 [1988] [finding of negligence may not be based on speculation]; Feblot v. New York Time Co., 32 NY2d 486 [1973] [jury finding based on speculation is a nullity]).

To make a prima facie case of medical malpractice, a plaintiff must prove that the healthcare provider departed from accepted standards of practice, thereby breaching a duty owed to the patient, and must prove that the departure alleged was a proximate cause of the injury (Stanski v. Ezersky, 228 AD2d 311 [1st Dept], lv to app. denied 89 NY2d 805 [1996]).

In support of her motion, Dr. Saeed offered evidence including the deposition testimony of plaintiff, plaintiff's Bill of Particulars, Dr. Saeed's own deposition testimony and an affidavit by Dr. Anna Marie Greco.

Plaintiff testified that the infant has been in special education since the third grade and has occasional tantrums in which he breaks things and then wants to leave the apartment. The infant is presently fourteen years old. Plaintiff testified that she first noted his behavior to be abnormal when the infant was in the first grade and would declare he was not being hurt while being "hit" by a parent (Deposition of Iris Vera, October 2, 2003 at 86-87). The department of [*3]Adolescent and Children's Services was called in by one of the infant's teachers to investigate marks on the infant's neck. Plaintiff testified that allegations she had put her hands around the infant's neck were "never proven" and that she attended all the required parenting classes (Id. at 84).

Plaintiff's Bill of Particulars alleged that Dr. Saeed failed to test the infant in a timely fashion, failed to take a proper history, to treat the infant properly for elevated lead levels, to warn the infant's mother of the hazards of lead paint, to admit the infant to a hospital, to order chelation, to refer the infant to a lead clinic, to insure that the infant was timely evaluated for cognitive deficits and to insure that the infant received proper follow-up at the clinic, among other things.

Dr. Saeed testified that it was part of her standard care to have patient's parents fill out lead survey forms with her staff and to discuss herself with the patient's parents the hazards of lead paint poisoning and to give them pamphlets regarding avoiding lead paint hazards. Dr. Saeed stated that all these things were done with the plaintiff. She testified that she referred plaintiff to the Montefiore Lead Clinic when the infant's test results were 18 mcg/dl because the clinic could provide social workers and much better follow-up for lead exposure in infants than a medical sole practitioner. Dr. Saeed stated that she remembered asking plaintiff in subsequent visits if she was taking the infant to the Montefiore Lead Clinic, and the plaintiff answered that she was.

Dr. Greco stated that she reviewed plaintiff's Bill of Particulars, the deposition testimony and Dr. Saeed's medical records of the infant plaintiff's care. In each of the plaintiff's visits to Dr. Saeed, Dr. Greco concluded that Dr. Saeed either met or exceeded accepted standards of medical care with respect to testing for and treating lead in children under the circumstances of each particular visit. Dr. Greco stated that all treatment provided to the infant by Dr. Saeed was appropriate given the lead levels being addressed.

In opposition to the motion, plaintiff offered exhibits including her own affidavit; an affidavit by William Savarese ("Savarese"), a lead inspector and risk assessor; the affirmation of Dr. Douglas B. Savino; an unsworn "functional assessment report" of the infant by Theodore I. Lidsky, Ph.D.; and some of the infant's medical records. Savarese tested an apartment in the 1165 Morris Avenue building in which the infant had not resided. He concluded that the infant's exposure to lead paint at the subject "premises" was a "substantial contributing factor" to the infant's blood lead levels, implicitly acknowledging an alternative source of lead exposure.

Dr. Savino reviewed the defendants' moving papers, the attached exhibits and plaintiff's affidavit. He did not examine the infant. According to Dr. Savino, Dr. Saeed did not offer anticipatory guidance and risk assessment to the plaintiff because there are no notes in the record indicating that she did, that Dr. Saeed should have tested the infant within six months of his first visit instead of one year later and that Dr. Saeed's failures in those respects constituted departures from standard medical care and "substantially contributed" to the infant's lead poisoning and "neurocognitive and behavioral deficits." Dr. Savino stated that those "deficits" are consistent with lead poisoning and "substantially contributed" to the infant's "brain injuries noted by Dr. Lidsky." This was the only mention of Dr. Lidsky's report by Dr. Savino.

Dr. Lidsky's unsworn report, apparently relied upon by Dr. Savino, evaluated the infant's "basic motor, cognitive and behavioral performance resources" and his medical and school [*4]records. He stated that the infant, almost 12 years old at the time of the evaluation, exhibited indicia of depression in his responses to the Children's Depression Inventory. He reported the results of a skull x-ray and CT scan of the infant's head performed in January 1994 which were contained in the infant's medical records. Dr. Lidsky noted "craniosynostosis" and "old infarct, left frontal lobe". Dr. Lidsky noted Individualized Education Program intake remarks from the infant's school records dated December 18, 2001 reporting that the infant suffers from hyperactivity, takes Ritalin and recommending small class size to address "behavioral and academic issues". The tests administered by Dr. Lidsky, a psychologist, showed impaired functioning in certain areas and Dr. Lidsky stated that his evaluation revealed an "overall pattern of performance indicative of pediatric brain injury." He stated that the brain injury described as "old infarct" was probably secondary to the craniosynostosis, or premature closing of the skull's sutures in infancy, but concluded that "brain damage due to lead exposure" made a "significant contribution" to the infant's cognitive and motor impairments. He added that it is "likely" Jonathan's lead poisoning contributed to his reported problems in school and in his behavior.

Plaintiff has not made a prima facie case showing Dr. Saeed's departures from accepted standards of medical care, that those departures were responsible for the infant's injuries or even offered sufficient prima facie evidence that the infant suffered permanent injuries due to lead exposure. Plaintiff's statement in her affidavit, drafted for purposes of this motion, that she "really" does not "believe" Dr. Saeed gave her anticipatory guidance or risk assessment, is not a definite enough statement to raise a question of fact for a jury and conflicts with her deposition testimony that she cannot remember whether she and the doctor discussed lead hazards.

Dr. Saeed testified that she had an independent recollection of giving anticipatory guidance and risk assessment to the plaintiff and that this would not necessarily have been written into the infant's record because it was part of her standard care. Dr. Savino's opinion that she did not give that guidance or assess risk because it is not in the record is entirely speculative and conclusory. His opinion, that not noting it in the records is itself a departure, does not connect that "departure" to any injury the infant might have suffered as a result. Dr. Savino never examined the infant himself, but seems to have relied entirely on the unsworn and conclusory opinion of Dr. Lidsky as to the infant's injuries and their cause. Dr. Savino's opinion, that the infant's "neurocognitive and behavioral deficits" are consistent with lead poisoning and substantially contributed to the infant's "brain injury as noted by Dr. Lidsky", is not even supported by Dr. Lidsky's report.

Dr. Lidsky stated that the infant's test results were indicative of the pediatric brain injury evidenced in the infant's medical records, in other words, the infant's prior "infarct" or stroke. Dr. Lidsky's statement that lead exposure "likely" contributed substantially to the infant's behavioral and academic problems falls considerably short of an opinion uttered with certainty, based on the facts and within his area of expertise. Furthermore, plaintiff's testimony that she and her husband customarily "hit" the infant, who showed defiance in the face of that punishment, together with the evidence of his organic brain injury, constitutes an alternative explanation for tantrums and academic problems that a jury could not arbitrarily attribute to lead exposure without relying entirely on speculation (See Smith, 77 AD2d 619; Detone, 140 AD2d 278; Feblot, 32 NY2d 486).

Since plaintiff has not established that the infant was injured due to lead exposure, she [*5]cannot establish that departures in accepted standards of medical care by Dr. Saeed allowed the lead exposure to occur, resulting in injury to the infant. In short, three conclusory opinions, each basing its premise on the other, are not enough to make a prima facie showing that the infant suffered injury due to his mild lead exposure, let alone due to a departure from accepted standards of medical care. Dr. Savino's opinion that Dr. Saeed departed from accepted standards is itself conclusory and based completely on speculation. Neither plaintiff nor Dr. Savino have challenged the propriety of any specific instances of treatment of the infant, except in the most vague and general way. The complaint and all cross-claims against Dr. Saeed are, therefore, dismissed.

Movant is directed to serve a copy of this order with notice of entry on the Clerk of Court who shall delete the name of Dr. Barbara Saeed from the caption of this action.

This constitutes the decision and order of the court.

Dated: July 13, 2005

Bronx, New York

_______________________________

Betty Owen Stinson, J.S.C..