Barbato v Livingston
Annotate this CaseDecided on January 23, 2008
Supreme Court, Nassau County
Deborah Barbato and Guy Barbato, Plaintiff(s),
against
Douglas Livingston, D.P.M., Michael Livingston, D.P.M. and New Island Hospital, Defendant(s).
16986/04
Radna & Androsiglio, LLP
Attorneys for Plaintiffs
67 Wall Street, 22nd Floor
New York, NY 10005-3101
Geisler & Gabrielle
Attorneys for Defendants
Douglas Livingston, D.P.M. and
Michael Livingston, D.P.M.
100 Quentin Roosevelt Boulevard
Garden City, NY 11530
Furey, Kerley, Walsh, et al.
Attn: Cornelius M. Cawley, Esq.
Attorneys for Defendant New Island Hospital
2174 Jackson Avenue
Seaford, NY 11783
Thomas P. Phelan, J.
The motions by defendants, Douglas Livingston, D.P.M. and Michael Livingston, D.P.M.
("Livingston") and New Island Hospital, for an order pursuant to CPLR 3212 granting them
summary judgment dismissing the complaint against them is granted. The cross-motion by
plaintiffs for an order pursuant to CPLR 3126 striking the answer of defendant, New Island
Hospital, is denied.
This is an action to recover damages for podiatric malpractice and lack of informed
consent. Plaintiffs allege that defendants, Livingston, negligently cared for and treated plaintiff,
Deborah Barbato, from August 7, 2002, through and including November 8, 2002, and that the
hospital was negligent in its care of her when she underwent surgery there on October 3, 2002.
Defendants seek dismissal of the complaint and plaintiffs seek to strike the hospital's
answer based on its spoliation of evidence, to wit: radiologic films.
The pertinent facts are as follows:
Mrs. Barbato first went to the Livingstons' medical office on August 7, 2002. She
presented with a congenital condition: a foreshortened and dorsally elevated fourth toe in her
right foot. Her medical chart indicates that she saw Dr. Douglas Livingston and complained of
pain in the fourth toe of her right foot which was affecting her gait and causing pain about her
right knee. However, at her examination before trial, Mrs. Barbato testified that she only
complained that her fourth toe was raised and that she was experiencing blisters. She also
testified that she told [*2]Dr. Douglas Livingston that she had
taped her toe down which had affected her gait. Upon examination, Dr. Douglas Livingston
noted a shortened and dorsally elevated fourth digit on her right foot with pain upon palpation of
the region and that the second and third digits were deviated laterally. He also noted pain along
the plantar aspect of the fifth metatarsal head region of her right foot. Mrs. Barbato's medical
chart states:
3) Discussed treatment options with patient including conservative and surgical
management of conditions. Patient states that conservative measures have not been helpful in
reducing her symptoms and is interested in surgical management. I discussed treatment options
with patient including arthroplasty 4th digit and/or bone graphing of the 4th metatarsal as well as
possible Ilizarov type procedure in an attempt to lengthen the shortened 4th metatarsal.
4) Patient will consider all options.
Mrs. Barbato returned to the Livingstons' office for a second visit on August 28,
2002, and was seen by both of the Livingston doctors. Her medical chart states:
[Patient] states that she has experienced pain while standing, walking and in shoe
gear and is interested in surgical management of condition.
Mrs. Barbato's chart further reflects that Dr. Douglas Livingston
discussed all treatment options with [patient] regarding this condition and regarding the
brachymetatarsia including Ilizarov procedure and bone graft procedure with external fixation
including the recovery period involved with these procedures. [Patient] states that the recovery is
too extensive regarding external fixation and is interested in symptomatic relief of the 4th digit as
an alternative. Discussed arthroplasty 2nd, 3rd and 4th digits, right foot with syndactylization of
the 4th digit . . . [Patient] understands and all questions answered . . . . [Patient] is aware that
further surgical procedures may be required including possible lengthening procedure of 4th
[metatarsal]. [Patient] is aware that this is in attempt to help [patient] with her [symptoms] and
that further surgical procedures may be required.
Mrs. Barbato testified that at that visit, defendant doctors told her that she had
hammer toes of her second and third metatarsals and that they, too, should be fixed. Mrs. Barbato
further testified that her hammer toes had never caused her any problems; and, in fact, she did not
even know she had them. As for surgical options, Mrs. Barbato testified at her examination
before trial that the only nonsurgical options defendant doctors discussed with her was taping
down her toes, with which she was already familiar. She also testified that she was not
necessarily looking for surgical treatment; she was "just looking for a way to alleviate the cuts
and blisters on the toe, and if there was anything that could be done with all the technology that's
been going on over the past few years." (p.31) Mrs. Barbato testified that the possible use of
K-wire in her toe was not discussed. The consent form she executed does not recite it as a
possibility.
Surgery was performed on Mrs. Barbato's right foot by both of defendant doctors on
October 3, [*3]2002, at New Island Hospital. Mrs. Barbato
underwent V to Y skin plasty of her fourth metatarsophalangeal joint, syndactylization (sewing
together) of her fourth and fifth digits, arthroplasty of her fifth digit proximate to her
interphalangeal joint, tenotomies and capsulotomies of her second, third, fourth and fifth digits
and K wire fixation of her third digit. On October 4, 2002, Mrs. Barbato reported to the
Livingstons' office with a broken fifth digit on her left foot. Mrs. Barbato presented again to the
Livingstons' office on October 8, 2002, at which time x-rays were taken. Her medical chart
indicates that on that day "[a]ll operative sites lay in their proper rectus and anatomical position."
Although her medical record does not reflect it, at her examination before trial, Mrs. Barbato
testified that she complained on that day that the pin was causing her pain and discomfort and
that she was simply told that that was normal. Mrs. Barbato testified at her examination before
trial that she continued to complain about the pin and the doctor told her on October 15, 2002,
that he would remove it on her next visit. The medical record of October 15, 2002, reflects that
the "K-wire on the 3rd digit lays in its proper rectus and anatomical position."
Mrs. Barbato's medical record reflects that Dr. Michael Livingston removed the pin
at her next visit on October 21, 2002, because it was continuing to cause her pain and discomfort.
In fact, Mrs. Barbato testified at her examination before trial that, after that visit, she was
completely unable to bear any weight.
At her examination before trial, Mrs. Barbato testified that she subsequently
developed a little marble on the bottom of her foot where her toes began which caused her a lot
of pain. She testified that she felt like she had a knife going through the top of her foot. Mrs.
Barbato testified that she told the doctor this on her next visit on October 25, 2002, and that she
had very little movement in her second and third toes, the doctor again simply told her that that
was normal. Mrs. Barbato's medical chart does not reflect such a complaint and simply indicates
that the healing process was proceeding nicely and that physical therapy had begun. In fact, it
notes that she had decreased edema and pain upon palpation, had range of motion of the surgical
sites, and that all digits lay in acceptable position at that time.
In fact, Mrs. Barbato's medical charts of October 28, 2002, October 31, 2002, and
November 4, 2002, reflect that she was doing better and was able to wear surgical shoe gear
without any problems or difficulties. Her chart continues to indicate that "[t]he involved digits
lay in their proper rectus and anatomical positions. There are normal scars present. The V to Y
skin plasty is healing nicely." Her medical chart states that the "short term goals of reducing pain,
inflammation, swelling and increasing ROM [range of motion] had been achieved." However,
Mrs. Barbato testified that she thought the doctors began taping her toes and applying padding to
the middle part of her foot at her October 28, 2002, appointment. She further testified that that
day, Dr. Livingston told her that her complaints might be related to a neuroma, which is related
to scar tissue. Ms. Barbato also testified that she told the doctor on October 31st and on
November 4th that nothing had changed that the pain was not getting any better and that Dr.
Livingston recommended an injection on November 4, 2002, but he did not give her one until
November 6, 2002.
[*4]
Mrs. Barbato's medical record of November 6,
2002, reflects her complaints of pain in the plantar aspect of the third metatarsal region of her
right foot. She was diagnosed with a "[n]ormal post-op course with bursitis and capsulitis [of
her] 3rd MTPJ, right foot." She was treated with a periarticular injection consisting of 2%
Lidocaine and 20 mg of Kenalog at the third metatarsal of her right foot. Mrs. Barbato testified
that she thought this was the first time the doctor actually believed that she was in pain and tried
to do something about it. She further testified that she experienced more pain the night after the
injection which, although it got better, got worse again.
Mrs. Barbato's continued recovery and healing are reflected in her medical chart
regarding her visit of November 8, 2002. However, she testified at her examination before trial
that she told Dr. Douglas Livingston that the injection had not worked. She also testified that he
compelled her to put on her sneaker and that she had to use a shoe horn and experienced a lot of
pain. She testified that when she left, she decided that was her last visit to the Livingston doctors.
Mrs. Barbato sought care from other doctors. Thereafter, Dr. Alan Canter ordered an
MRI on November 22, 2002, which was "suspicious" for stress fractures involving the shafts of
the second and third metatarsals. MRIs were also performed on July 8, 2003, and August 21,
2003. Subsequently, Mrs. Barbato saw Dr. Jonathan T. Deland who had an MRI performed on
April 21, 2006, which indicated scarring of the first metatarsal joint capsule extending to the first
web space with a small neuroma. On June 30, 2006, Dr. Deland performed surgery. He
performed a right second and third metatarsal osteotomy, second and third metaphalangeal
release and excision of the Morton's neuroma in the 2nd web space and a plantar dermodesis of
the 2nd toe. On March 29, 2007, he removed the hardware in Mrs. Barbato's right foot.
In their Bill of Particulars, plaintiffs allege that defendants failed to use reasonable
and proper skill and care in Mrs. Barbato's treatment; failed to take a full and proper history;
failed to conduct full, appropriate and thorough physical examinations of Mrs. Barbato when she
complained of brachymetatarsia of the 4th metatarsal of the right foot and abducted position of
the 2nd and 3rd digits in or about August 2002; failed to properly examine and diagnose the
cause of Mrs. Barbato's severe post-op pain in the plantar aspect of the 3rd metatarsal phalangeal
joint; failed to take, perform or order timely and adequate diagnostic laboratory and radiological
tests and procedures; failed to give proper and adequate consideration to the risks, hazards and
dangers inherent in the surgery performed on October 3, 2002; and failed to warn or advise Mrs.
Barbato of the risks, hazards and dangers inherent in the surgery. Plaintiffs further allege in their
Bill of Particulars that as a result of defendants' negligence, Mrs. Barbato suffered severe pain in
the second and third digits of the right foot when standing; dull aching pain in the second and
third digits of the right foot when still; inability to bear weight and walk on her bare right foot;
stress fractures in the right foot; and other sequella from pain and stress fractures.
"On a motion for summary judgment pursuant to CPLR 3212, the proponent must
make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient
evidence to demonstrate the absence of any material issues of fact." Sheppard-Mobley v King, 10 AD3d
70, 74 (2d Dept. 2004), aff'd. as modified, 4 NY3d 627 (2005), citing Alvarez v
Prospect Hosp., 68 [*5]NY2d 320, 324 (1986); Winegrad
v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985). "Failure to make such prima facie
showing requires a denial of the motion, regardless of the sufficiency of the opposing papers."
Id. Once the movant's burden is met, the burden shifts to the opposing party to establish
the existence of a material issue of fact. Alvarez, supra . The evidence presented by the
opponents of summary judgment must be accepted as true and they must be given the benefit of
every reasonable inference. See, Demishick v Community Housing Management
Corp., 34 AD3d 518 (2d Dept. 2006).
"The requisite elements of proof in a medical malpractice action are a deviation or
departure from accepted practice and evidence that such departure was a proximate cause of
injury or damage." Ramsay v Good
Samaritan Hosp., 24 AD3d 645, 646 (2d Dept. 2005); see also, Thomason v
Orner, 36 AD3d 791 (2d Dept. 2007); DiMitri v Monsouri, 302 AD2d 420 (2d Dept.
2003); Holbrook v United Hospital Medical Center, 248 AD2d 358, 359 (2d Dept. 1998).
"In a medical malpractice action, the party moving for summary judgment must make a prima
facie showing of entitlement to judgment as a matter of law by showing the absence of a triable
issue of fact as to whether defendant physician [and/or hospital] were negligent." Taylor v Nyack Hospital, 18 AD3d
537 (2d Dept. 2005) citing Alvarez, supra . Thus, a moving defendant doctor or
hospital has "the initial burden of establishing the absence of any departure from good and
accepted medical malpractice or that the plaintiff was injured thereby." Chance v Felder, 33 AD3d 645
(2d Dept. 2006) quoting Williams v
Sahay, 12 AD3d 366, 368 (2d Dept. 2004), citing Alvarez, supra ; Johnson v Queens-Long Is. Med. Group,
P.C., 23 AD3d 525, 526 (2d Dept. 2005); Taylor, supra ; see also,
Thompson v Orner, supra .
To establish a cause of action for malpractice based on lack of informed consent,
plaintiff must prove (1) that the person providing the professional treatment failed to disclose
alternatives thereto and failed to inform the patient of reasonably foreseeable risks associated
with the treatment, and the alternatives, that a reasonable medical practitioner would have
disclosed in the same circumstances, (2) that a reasonably prudent patient in the same position
would not have undergone the treatment if he or she had been fully informed, and (3) that the
lack of informed consent is a proximate cause of the injury." Foote v Rajadhyax, 268
AD2d 745 (3rd Dept. 2000), citing Public Health Law § 2805-d (1), (3); Iazzetta v
Vicenzi, 200 AD2d 209, 213, appeal dismissed 85 NY2d 857 (1995); Marchione
v State of New York, 193 AD2d 851, 853-854.
Thus, in addition to establishing that a doctor has failed to adequately inform a
patient of the attendant risks and alternatives, a plaintiff must also establish that the treatment
would not have occurred "but for" the doctor's failure to properly inform her. That is, "that a
reasonably prudent person in the patient's position would not, if fully informed, have consented
to the treatment." Flores by Flores v Flushing Hosp. & Med. Ctr, 109 AD2d 198 (1st
Dept. 1985), citing Dries v Gregor, 72 AD2d 231, 236 (4th Dept. 1980); see also,
Faulkner v Shnayersen, 273 AD2d 271 (2d Dept. 2000).
In support of their motion, the Livingston doctors have submitted an affirmation of
Robyn Joseph, D.P.M., F.A.C.F.A.S., who is licensed to practice podiatry in New York. Having
reviewed plaintiff's, Deborah Barbato's, medical records, the Bill of Particulars and the [*6]examination before trial transcripts, Dr. Joseph opines, with a
reasonable degree of podiatric certainty, that all of the treatment provided to Mrs. Barbato by the
Livingston doctors was in accordance with good and accepted podiatric practice and that the
treatment provided by them did not proximately cause her injuries. She opines that the
Livingston doctors "performed an adequate examination and took an adequate history from the
plaintiff and ordered appropriate and indicated radiology based on plaintiff's presentation." (Ex.
A. ¶13). She states that Mrs. Barbato's medical record as well as her testimony document
that alternatives and surgical risks were discussed with her. She also notes that Mrs. Barbato
signed a consent form indicating that her informed consent had been obtained for the surgery,
and that "while the specifics regarding the Kirschner pin where [sic] not specifically mentioned
in the form or discussed preoperatively, utilizing the K-wire did not add any additional risks that
would need to be disclosed and [that] it is good and acceptable surgical podiatric practice for a
surgeon to use his judgment to modify surgical decisions intraoperatively." (Id.) Thus, it
is her opinion, within a reasonable degree of podiatric certainty, that the Livingston doctors
adequately disclosed the risks, alternatives and benefits attendant to the surgery they performed.
Dr. Joseph further states that it is her opinion, with a reasonable degree of podiatric
certainty, that the surgery performed on October 3, 2002, was not the proximate cause of
plaintiff's stress fractures, neuroma, or the other injuries alleged in the Bill of Particulars. She
explains that a neuroma is a thickening of the sheath of the nerve between the metatarsals head
and that it is her opinion that plaintiff's neuroma was a result of chronic irritation from
hypermobility of the foot causing the metatarsals to constantly rub on the nerve with ambulation.
It is her opinion that a neuroma would not develop a few weeks after surgery, especially when the
patient is on crutches and with limited ambulation. She explains that the Kirschner wire placed
by Dr. Livingston was not placed in the vicinity of the nerve, which is between the metatarsal
heads, but rather was placed in the 3rd metatarsal head. Dr. Joseph further explains that the
tenotomies and capsulotomies were performed on the dorsal aspect of the metatarsals and not
deep into the interphalanageal space and that the nerve space was not touched at the time of
surgery. She further opines that there was no undue delay in diagnosis of Mrs. Barbato's
capsulitis/bursitis submetatarsal third digit by Dr. Livingston. She points out that Dr. Livingston
diagnosed the problem on November 6, 2002, and treated it appropriately with the cortisone
injections. She explains that the Livingston doctors did not deviate from good and accepted
podiatric practice in failing to diagnose the neuroma because there were no complaints of pain
other than the pain related to her shortened 4th metatarsal prior to the surgery. Furthermore,
several MRI reports taken subsequent to the surgery do not demonstrate the presence of a
neuroma. In fact, she notes that the first documentation of a neuroma is four years after the
surgery. Lastly, Dr. Joseph opines that any suspected stress fractures in the right foot noted on the
MRI would be unrelated to the surgery performed by or the treatment rendered by the Livingston
doctors. He concludes that assuming the fractures exist which is questionable they would be
related to her congenital condition.
The Livingston doctors have established their entitlement to summary judgment
thereby shifting the burden to plaintiffs to demonstrate the existence of a material issue of fact.
[*7]
As for defendant hospital, "[a]s a rule, a hospital
is normally protected from tort liability if its staff follows the orders of the patient's private
physician. An exception exists where the hospital staff knows that the doctor's orders are so
clearly contraindicated by normal practice that ordinary prudence requires inquiry into the
correctness of the orders." Cook v Reisner, 295 AD2d 466, 467 (2d Dept. 2002), quoting
Warney v Haddad, 237 AD2d 123, 654 NYS2d 138. Defendant, New Island Hospital,
cannot be held vicariously liable for plaintiff's private attending physicians' negligence. Quezada v O'Reilly-Green, 24 AD3d
744 (2d Dept .2005), lv to appeal denied 7 AD3d 703 (2006), citing Orgovan v Bloom, 7 AD3d 770
(2004); Evans v Abitbol, 1 AD3d
313, 314 (2003); O'Regan v Lundie, 299 AD2d 531 (2002).
Furthermore, it was the duty of plaintiff's private physician, not New Island Hospital,
to obtain plaintiff's informed consent. Sita v Long Island Jewish-Hillside Med. Ctr., 22 AD3d 743 (2d
Dept. 2005) citing Public Health Law § 2805-d; Fiorentino v Wenger, 19 NY2d
407, 417 (1967). Case law obligates the physician who proscribed or performed the procedure to
obtain the patient's informed consent. Spinosa v Weinstein, 168 AD2d 32, 39-40 (2d
Dept. 1991), citing Blank v Rosenthal, 84 AD2d 688; Nisenholtz v Mount Sinai
Hosp., 126 Misc 2d 658 (1984); Prooth v Wallsh, 105 Misc 2d 603 (1980); see
also, Domaradzki v Glen Cove Ob/Gyn Assoc., 242 AD2d 282 (2d Dept. 1997). The
obligation to procure informed consent continues only if a degree of participation is retained by
way of control, consultation or otherwise. To extend that obligation to other medical personnel
who have contact with the patient in connection with her treatment could deter a patient from
procuring needed care on account of repeated warnings and cautions and intrude on the
patient-doctor relationship. Fiorentino v Wenger, supra , at 415-416; Spinosa, supra
, at 39-40.
Defendant hospital has submitted the affirmation of Leon Sultan, M.D., a physician
licensed to practice in New York State who is Board Certified in Orthopaedic Surgery in support
of its motion for summary judgment. He, too, has reviewed Mrs. Barbato's medical records as
well as the Bill of Particulars and examination before trial transcripts. Based upon his review, he
opines, with a reasonable degree of medical certainty, that the care and treatment rendered to
plaintiff, Deborah Barbato, by the nurses, staff and personnel of New Island Hospital was at all
times within good and accepted standards of medical care and that the injuries allegedly suffered
by her were not in any way proximately caused by any of the care and treatment rendered to Mrs.
Barbato by any of the hospital personnel or staff. He notes that plaintiff's allegations are really
levied against the individual defendant doctors, both pre, post and during the surgery itself.
The Livingston doctors were Mrs. Barbato's private attending doctors, and there is no
evidence that any of the hospital staff failed to follow their directions or that they followed their
directions when they should not have done so. Furthermore, defendant hospital did not have an
obligation to procure Mrs. Barbato's consent. "There [is] no evidence presented to show that the
[hospital] knew or should have known that the plaintiff's private physicians were acting without
informed consent or should have had reason to suspect malpractice." Cirella v Central Gen.
Hosp., 217 AD2d 680, 681 (2d Dept. 1995), lv denied, 87 NY2d 801 (1995); see
also, Sita, supra .
Defendant hospital has also established its entitlement to summary judgment, thereby
shifting [*8]the burden to plaintiffs to establish the existence of a
material issue of fact.
To defeat defendants' motions, "plaintiff[s] [are] obligated to submit competent,
rebuttal medical evidence establishing that defendants deviated from the applicable standard of
care, as well as a causal nexus between their conduct and her injuries (citations omitted)." Hoffman v Pelletier, 6 AD3d 889,
890 (3d Dept. 2004).
Plaintiffs maintain that there are indeed triable issues of fact, to wit: (1) whether
defendants failed to obtain Mrs. Barbato's informed consent more specifically to advise her of all
of her non-surgical options including orthotics and injections and to apprise her of the possible
use of a K-wire and the potential complications arising therefrom; (2) whether defendant doctors
properly placed the K-wire and took steps to make sure that it was properly placed; and (3)
whether the hospital reviewed and/or negligently lost her October 3rd x-ray which, she maintains,
constitutes pivotal evidence of defendant doctors' negligence of which she has now been
deprived.
In support of their opposition, plaintiffs have submitted the affirmation of Michael
Katz, D.P.M., a podiatrist licensed to practice in New York State, who is board certified in
podiatry. He opines, with a reasonable degree of medical certainty, that the Livingston doctors
departed form good and accepted podiatric practice and that their departures proximately caused
Mrs. Barbato's injuries.
With respect to plaintiff's claim of lack of informed consent, he states that the
Livingston doctors failed to obtain Mrs. Barbato's informed consent; failed to advise her of other
nonsurgical options; and failed to inform her of the possible insertion of a K-wire and its possible
complications. Dr. Katz states that it was a departure from good and accepted podiatric practice
to fail to discuss nonsurgical options for her fourth digit, such as orthotics and injections, with
Mrs. Barbato at her first visit since her toe was not seriously bothering her. He similarly states
that the Livingston doctors departed from good and accepted podiatric practice in failing to
discuss nonsurgical options for Mrs. Barbato's hammer toes since she was not experiencing
complications from them and that it was a departure from podiatric practice to perform surgery
on them.
Dr. Katz further states that it is his opinion that defendants departed from good and
accepted podiatric practice when operating on Mrs. Barbato; in failing to obtain and preserve
necessary radiological films; and in removing the pin. More specifically, he cites the absence of
the October 3, 2002, radiological film to confirm that the pin was properly placed and from there
opines that from his "review of the records and transcripts, it appears that the K-wire was not
properly placed. He further opines that Mrs. Barbato's complaints about the pin causing her pain
should have alerted defendant doctors to "the possibility" that the K-wire was improperly placed
which could lead to future complications. Dr. Katz explains that if the K-wire had been properly
placed, Mrs. Barbato should not have had pain. He further explains that the improper placement
of the K-wire can lead to irritation of the nerve, joint and muscle tissue and cause pain in other
[*9]areas on account of a patient's compensatory behavior. This,
he opines, is causally related to a neuroma. He also faults defendant doctors for removing the pin
without anesthesia. And, he faults defendant doctors for forcing Mrs. Barbato to put her sneaker
on with a shoehorn at her last visit despite her complaints of pain.
Dr. Katz further opines that defendants' failure to "properly inform Mrs. BARBATO
of the importance of addressing her short metatarsal prior to the October 3, 2002 surgery was a
departure from the standard of podiatric practice" (¶13) and that their "[f]ailure to properly
address the short metatarsal may have lead to a stress fracture and neuroma." (Id.) He
further opines that defendant's failure to place Mrs. Barbato in an orthotic before and following
surgery, especially in light of her complaints of pain, was a departure from the standard of
podiatric practice which also may have caused her to develop a stress fracture and neuroma.
As for the hospital, Dr. Katz opines that it departed from good and accepted medical
practice by "failing to take and/or preserve necessary radiology films to document the position of
Mrs. BARBATO's toes before, during and after the October 3, 2002 surgery." (¶16) He
explains that defendant doctors' failure to confirm the proper placement of the K-wire is at the
crux of plaintiff's claim and the absence of the films leaves her at a loss for proof. He further
opines that if the K-wire was improperly placed, it would have been a departure from good and
accepted medical practice by the hospital to not diagnose it.
As for causation, Dr. Katz simply states:
It is my opinion within a reasonable degree of medical certainty that Mrs.
BARBATO's post operative pain, stress fracture, neuroma and subsequent surgeries to address
her pain were directly related to the defendants' failure to obtain informed consent and the
improper surgery and the failure to document, preserve the documents and appreciate and treat
Mrs. BARBATO's complaints and conditions. But for the above detailed departures, Mrs.
BARBATO would not have had the subsequent unnecessary pain or the subsequent surgery.
(¶20)
As for the Livingstons, while they maintain that they thoroughly discussed all of
Mrs. Barbato's options, which is reflected in her chart, Mrs. Barbato herself denies this; and there
is no question that the possible use of a pin in her toe was never discussed. While the
Livingstons' expert concludes that that is routine and that the pin was the result of the doctors
doing what needed to be done when they discovered the need, plaintiffs' expert adamantly
disagrees. Nevertheless, to establish a claim for lack of informed consent, plaintiff must establish
that "a reasonably prudent person in the patient's position would not have undergone the
treatment . . . if he [or she] had been fully informed and that the lack of informed consent is a
proximate cause of the injury or condition for which recovery is sought." Manning v Brookhaven Mem'l. Hosp. Med.
Ctr., 11 AD3d 518, 520 (2d Dept. 2004). Conspicuously absent from plaintiffs'
opposition is any allegation or evidence that the result would have been any different had she
been made fully aware of her choices and the possible use of a pin. This glaring omission is fatal
to her claim. See, Manning, supra .
[*10]
As for the surgery, the October 8th x-ray
establishes that the pin was properly positioned, and plaintiffs have failed to show why it is not
conclusive in that regard. All of plaintiffs' allegations regarding the misplacement of the pin are
speculative. Indeed, numerous times plaintiffs' expert notes that the pin may have been
improperly placed. Plaintiffs' expert's surmise that the wire's placement may have caused her
neuroma also fails. The wire was not placed where the neuroma developed. More importantly,
the neuroma did not show up until four years later despite MRIs done repeatedly in the interim,
and glaringly absent from plaintiffs' evidence is any explanation as to how this could have
happened. As for plaintiffs' expert's assertion that the removal of the pin without anesthesia was
improper, no damages have been established. As for the "possible" stress fractures, not only have
they not been firmly established, they have not been conclusively linked to the doctors' care.
As for defendant hospital, plaintiffs have also failed to meet their burden. A hospital
is not vicariously liable for the acts of a private attending doctor retained by a patient and is
immune from liability where its employees have not committed independent acts of negligence
and have only followed the attending doctor's instructions, unless that doctor's orders are so
clearly contraindicated that normal prudence would require that inquiry be made regarding the
doctor's orders. Toth v Bloshinsky,
39 AD3d 848, 850 (2d Dept. 2007); see also, Sita, supra . The only negligent
act allegedly attributable to defendant hospital is its failure to preserve the x-rays which were
taken after Mrs. Barbato's surgery, which, plaintiffs allege, cripples their attempt to prove that the
pin was not properly surgically positioned. However, again, it is not disputed that x-rays taken
only a few days after Mrs. Barbato's surgery, i.e., October 8th, establish that the pin was properly
positioned. Moreover, there is not a scintilla of evidence which indicates that anything happened
to Mrs. Barbato's foot between the time of her surgery and when these x-rays were taken which
could have changed the position of the pin. There was no surgery or trauma to her foot in those
intervening days.
As for plaintiffs' application to strike defendant hospital's answer, this "court has
broad discretion in determining what, if any, sanction should be imposed for spoliation of
evidence." Iannucci v Rose, 8 AD3d
437, 438 (2d Dept. 2004), citing Allstate Ins. Co. v Kearns, 309 AD2d 776 (2003).
"It may, under appropriate circumstances, impose a sanction even if the destruction occurred
through negligence rather than wilfulness, and even if the evidence was destroyed before the
spoliator became a party, provided [the party] . . . was on notice that the evidence might be
needed for future litigation.' " Iannucci, supra , quoting DiDomenico v C & S
Aeromatik Supplies, 252 AD2d 41, 53 (1998). However, "striking a pleading is a drastic
sanction to impose in the absence of willful or contumacious conduct, [and] courts will consider
the prejudice that resulted from the spoliation to determine whether such drastic relief is
necessary as a matter of fundamental fairness." Iannucci, supra , citing Favish v
Tepler, 294 AD2d 396 (2d Dept. 2002). "A less severe sanction is appropriate where the
missing evidence does not deprive the moving party of the ability to establish his or her defense
or case." Iannucci, supra , quoting Chiu Ping Chung v Caravan Coach Co., 285
AD2d 621 (2001); Klein v Ford Motor Co., 303 AD2d 376 (2003).
Suffice it to say, not only is there no evidence of willful or contumacious conduct by
defendant [*11]hospital, the missing x-rays are of no
consequence. See, Wetzler v
Sisters of Charity, 17 AD3d 1088 (4th Dept. 2005). Indeed, conspicuously absent from
plaintiffs' expert's affirmation is any discussion of the October 8th x-rays which display the
proper placement of the pin.
This decision constitutes the order of the court.
Dated:January 23, 2008 Hon. Thomas P. Phelan
J.S.C.
Radna & Androsiglio, LLP
Attorneys for Plaintiffs
67 Wall Street, 22nd Floor
New York, NY 10005-3101
Geisler & Gabrielle
Attorneys for Defendants
Douglas Livingston, D.P.M. and
Michael Livingston, D.P.M.
100 Quentin Roosevelt Boulevard
Garden City, NY 11530
Furey, Kerley, Walsh, et al.
Attn: Cornelius M. Cawley, Esq.
Attorneys for Defendant New Island Hospital
2174 Jackson Avenue
Seaford, NY 11783
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