Hendy v Manning

[*1] Hendy v Manning 2009 NY Slip Op 50310(U) [22 Misc 3d 1127(A)] Decided on January 20, 2009 Supreme Court, Kings County Rosenberg, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 6, 2009; it will not be published in the printed Official Reports.

Decided on January 20, 2009
Supreme Court, Kings County

Gloria Hendy, Plaintiff,

against

Reginald Manning, M.D., Jeffrey Tamborlane, M.D., Miksha J. Patel, M.D., St. Mary's Hospital (a/k/a Catholic Medical Center of Brooklyn & Queens, Inc.) and Kingsbrook Jewish Medical Center, Defendants.



51159/02



Represented by Kaufman, Borgeest & Ryan, LLP, 1205 Franklin Avenue, Garden City, NY 11530 . Movant Reginald Manning, M.D. was represented by Ptashnik & Associates, 67 Wall Street, New York, NY 10005. Plaintiff was represented by Salenger, Sack, Schwartz & Kimmel, LLP, 233 Broadway, New York, NY 10279.

Gerard H. Rosenberg, J.

Upon the foregoing papers, and upon oral argument, defendant St. Vincent Catholic Medical Center of Brooklyn & Queens, s/h/a St. Mary's Hospital (St. Mary's Hospital) moves pursuant to CPLR 3212 for an order granting summary judgment and dismissing the complaint, and pursuant to CPLR 3217 (a) for an order so-ordering a stipulation of discontinuance as to defendant Jeffrey Tamborlane, M.D. (Dr. Tamborlane)[FN1] (Motion Sequence No. 002). Defendant Reginald Manning, M.D. (Dr. Manning) similarly moves pursuant to CPLR 3212 for an order granting summary judgment and dismissing the complaint as against him (Motion Sequence No. 004).

BACKGROUND [*2]

This is a medical malpractice action. At the time of the events alleged in this action the then 60-year-old plaintiff had a history of progressive osteoarthritis of the left knee. On April 25, 2001 she underwent a left total knee arthroplasty[FN2] (TKA) at St. Mary's Hospital. The surgery was performed by Dr. Manning, the Director of Orthopedic Surgery at St. Mary's Hospital, who was assisted by Dr. Tamborlane, an orthopedic resident. Plaintiff alleges that following surgery she complained that she was unable to move her left leg and could not wiggle her toes, and was continuing to experience left leg pain. Plaintiff was transferred to Kingsbrook Jewish Medical Center (Kingsbrook) on May 2, 2001 for comprehensive rehabilitation. At Kingsbrook a neurological examination revealed that plaintiff's dorsiflexors[FN3] were "weak/absent", indicating meaning minimal to no response to testing. Dr. Miksha J. Patel examined plaintiff the next day, on May 3, 2001, and ordered local wound care to treat blisters located around the surgical site, as well as physical therapy and occupational therapy. Plaintiff continued to be treated for infection, and an orthopedic assessment was reached that plaintiff had a left foot drop due to peroneal neurapraxia[FN4], which was present post-operatively. On May 19, 2001 plaintiff refused to be transferred back to St. Mary's Hospital, and remained at Kingsbrook until her discharge on June 22, 2001. Plaintiff alleges that as a result of malpractice committed by the defendants she sustained, in part, peroneal nerve palsy and foot drop of the left leg, infection and the need for a subsequent left knee manipulation procedure under general anesthesia performed on June 5, 2001.

The motion by St. Mary's Hospital for summary judgment

In support of its motion St. Mary's Hospital submits the affirmation of Howard Anthony Rose, M.D., a board certified orthopedic surgeon. After review of the pleadings, bills of particulars, medical and hospital records, films and deposition transcripts, Dr. Rose opines with a reasonable degree of medical certainty that the left TKA was done in accordance with good and accepted medical practice, and that the plaintiff did not sustain peroneal nerve injury/palsy, nor was caused to sustain foot drop, as a result of the TKA.

Dr. Rose states that insult to the peroneal nerve and foot drop are known risks and complications of TKA procedures, and are caused by direct traction on the nerve, traction on the surrounding tissues resulting in vascular compromise to the nerve, or a combination of these factors. Further, Dr. Rose opines that when an injury to the peroneal nerve occurs the [*3]signs and symptoms will usually present acutely, or less commonly, shortly after the surgery, but well within one week following surgery. Dr. Rose opines that the plaintiff did not sustain peroneal nerve injury during the TKA, based upon the lack of any evidence in the St. Mary's records of the signs and symptoms of peroneal nerve palsy. He opines that had she sustained such injury, the signs and symptoms would have been readily apparent during the ensuing seven-day admission at St. Mary's. Dr. Rose opines further that assuming arguendo that the plaintiff sustained insult to the peroneal nerve during the surgery, there were no departures in the surgery since this injury is a known risk/complication of a TKA, especially with respect to patients who, like the plaintiff, have a valgus deformity.[FN5]

Dr. Rose opines that allegations as to the occurrence of a post-operative infection and the treatment of same are without merit, that the care rendered thereto conformed to acceptable standards of medical practice, and that the plaintiff did not sustain any injury as the result on any infection, nor developed an infection at St. Mary's. Further, the subsequent Kingsbrook record does not reflect the presence of an infection until May 8, 2001, six days after she was transferred from St. Mary's. Dr. Rose additionally opines that plaintiff's allegation that the left knee manipulation on June 5, 2001 was necessitated by malpractice by St. Mary's is also without merit. Rather, the manipulation was performed to improve the degree of flexion in the plaintiff's left knee, a condition that was unrelated to any difficulties plaintiff may have been experiencing in dorsiflexing her left ankle. Lastly, Dr. Rose opines that the plaintiff was provided with an informed consent prior to the surgery which complied with accepted standards of medical care, and that none of the alleged departures caused and/or contributed to any of the claimed injuries and/or damages.

The cross-motion by Dr. Manning for summary judgment

In support of his motion Dr. Manning adopts most of the arguments made by St. Mary's Hospital in its motion, as well as St. Mary's Hospital's exhibits and the affirmation of St. Mary's Hospital expert, Dr. Rose.

Analysis

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, [*4]or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).

The requisite elements of a medical malpractice claim are a deviation or departure from good and accepted medical practice and evidence that such departure was a proximate cause of the plaintiff's injury (Hernandez v Hochman, 56 AD3d 427 [2008]; DiMitri v Monsouri, 302 AD2d 420, 421 [2003]). Therefore, on a motion for summary judgment, a defendant doctor or hospital has the initial burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

Plaintiff's Opposition

Initially, the court finds that the motion and cross-motion have established the prima facie entitlement of St. Mary's Hospital and Dr. Manning to summary judgment. Thus the burden shifts to the plaintiff to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. To that end plaintiff submits the redacted affirmation of a physician board certified in orthopaedic surgery, who after review of the pertinent medical records and deposition testimony, states with a reasonable degree of medical certainty that departures from accepted standards of medical practice were committed by St. Mary's Hospital and by Dr. Manning, and that these departures were a substantial factor in causing injury to the plaintiff.

The relevant portions of plaintiff's expert's affirmation indicate his/her opinion that the plaintiff's foot drop was confirmed by EMG and nerve conduction studies which were conducted at Kingsbrook. Plaintiff's expert opines that foot drop does not prevent the patient from being able to walk, but rather impairs it, thereby explaining the fact that plaintiff was able to walk with the assistance of a walker during physical therapy sessions conducted post-operatively.

Plaintiff's expert further opines that defendants' expert admitted that peroneal nerve injury must present signs and symptoms "well within one week following surgery"; that plaintiff remained at St. Mary's for one week following the TKA; and that defendants' expert admits that plaintiff presented to Kingsbrook on the same day she was discharged from St. Mary's with "weak/absent" left dorsiflexion, which is consistent with peroneal nerve injury and foot drop. Plaintiff's expert therefore opines that plaintiff must have exhibited signs and symptoms of peroneal nerve injury during her April 24 - May 2, 2001 admission to St. Mary's, and that these signs and symptoms were not documented in the records.

In support of these opinions, plaintiff's acknowledges that progress notes of an orthopedic doctor on April 26 and 27, 2001 at St. Mary's Hospital indicate that the range of motion in plaintiff's left foot and ankle were tested; however, there are no notes after April 27, 2001 which indicate that the range of motion in plaintiff's left ankle and foot were tested. Plaintiff's expert notes that physical therapy was ordered on April 27, 2001, and that therapy began on April 28, 2001, but physical therapy notes do not document whether the plaintiff had active range of motion in her left ankle or toes. Further, there is no evidence that the [*5]range of motion in plaintiff's left foot and ankle were within normal limits after April 28, 2001. Plaintiff's expert cites as well an April 29, 2001 progress note which states "no neuro deficit noted." However, the note also indicates that the plaintiff had an immobilizer on her leg at that time. Then, on April 30, 2001 an order appears to discontinue the knee immobilizer. However it is unclear whether the immobilizer was discontinued that day, and on May 1, 2001 the records indicate that was still in use. Plaintiff's expert therefore opines that it was a departure for the defendants to fail to timely monitor, diagnose and treat plaintiff's foot drop through close follow-up examination, monitoring and neurologic testing after the date of the surgery, April 25, 2001, through plaintiff's discharge from St. Mary's Hospital on May 2, 2001.

While this opinion is attacked as speculative and conclusory, plaintiff's expert, by citing and agreeing with the opinions of defendant's expert that signs and symptoms of peroneal nerve injury must present within one week, and due to the fact that the records document that Kingsbrook personnel recorded symptoms which plaintiff's expert opines are consistent with peroneal nerve injury and foot drop within one week of the surgery, has stated a reasonable opinion based upon sound medicine and medical records. It may be an opinion with which the defendants' expert disagrees, but that is a matter for the trier of fact to determine.

Plaintiff's expert further opines that the nerve damage occurred by either (a) a surgical retractor improperly placed during the surgery; (b) improper placement or padding of the immobilizer utilized post-operatively; or (c) failure to diagnose a hematoma which may have formed post-operatively and compressed the peroneal nerve, and that each of these constitutes a departure from good and accepted medical practice. Plaintiff's expert opines that the type of nerve damage suffered by the plaintiff was progressive in nature, and not the type of injury which could have occurred within minutes or hours of the surgery. Plaintiff's expert further opines that the defendant's failure to timely monitor, diagnose and treat plaintiff's foot drop through close follow-up examination, monitoring and neurologic testing after the surgery was a departure which deprived plaintiff of a better chance for recovery from this injury.

Plaintiff's expert opines that Dr. Manning failed to properly perform the TKA in that he failed to protect the integrity of the peroneal nerve. He/she states that during the performance of the TKA the peroneal nerve should not be within the operative field, and the surgeon should not visualize or manipulate this nerve. Plaintiff's expert notes that while Dr. Rose states that since the plaintiff had a valgus nerve deformity peroneal nerve damage was a risk of the TKA, there is no documentation as to the degree or severity of this deformity and Dr. Manning does not refer to it in either his operative report or discharge summary. Thus, plaintiff's expert opines that without such documentation it cannot be said that peroneal nerve damage was a risk of this procedure.

As noted above, plaintiff's expert opines that the nerve damage occurred by either (a) a surgical retractor improperly placed during the surgery; (b) improper placement or padding [*6]of the immobilizer utilized post-operatively; or (c) failure to diagnose a hematoma which may have formed post-operatively and compressed the peroneal nerve. In their reply papers defendants take issue with plaintiff raising for the first time in this litigation allegations of improper placement or padding of the immobilizer and the failure to diagnose a hematoma which may have formed post-operatively, citing cases which hold that a plaintiff cannot defeat an otherwise proper summary judgment motion by asserting a new theory of liability for the first time in opposition to the motion (see, e.g., Winters v St. Vincent's Med. Ctr. of Richmond, 273 AD2d 465 [2000]; Golubov v Wolfson, 22 AD3d 635 [2005]).[FN6]

However, at a minimum a question of fact exists with respect to the claim that the peroneal nerve damage was caused by the improper placement of a surgical retractor during the surgery. Dr. Rose stated in his affirmation that insult to the peroneal nerve and foot drop are known risks and complications of TKA procedures, and are caused by direct traction on the nerve, traction on the surrounding tissues resulting in vascular compromise to the nerve, or a combination of these factors. Plaintiff's expert has opined that these defendants, i.e., Dr. Manning personally and St. Mary's through the actions of its employees, improperly placed the retractor during the surgery, thereby causing the peroneal nerve damage and foot drop. The opinions of plaintiff's expert on this issue are neither conclusory nor speculative, as plaintiff's expert states a basis for his/her opinion in the relevant records and deposition testimony. Conflict among experts raises issues of credibility that may not be resolved on a motion for summary judgment, since it for the fact finder and not the motion court to resolve the credibility issues presented (see, Feinberg v Feit, 23 AD3d 517, 519 [2005]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624 [2003]; Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650 [2001]; Santore v Wolf, 15 Misc 3d 1109(A), *9 [2007]).

Cause of action for lack of informed consent

To establish a prima facie case on the issue of lack of informed consent defendants must present evidence of a consent form signed by plaintiff and deposition testimony of defendant doctor(s) regarding discussions with the plaintiff about the procedures being performed, alternatives to those procedures and the reasonably foreseeable risks of and benefits associated with those procedures (see, Etminan v Sasson, 51 AD3d 623 [2008]). St. Mary's Hospital provides a copy of the consent form plaintiff signed as well as testimony from defendant Dr. Tamblorane and co-defendant Dr. Manning regarding discussions held [*7]in reference to the procedure that was performed. Also submitted is testimony from the plaintiff regarding forms that were provided to her prior to surgery. Defendants have sufficiently made a prima facie showing of entitlement to judgment as a matter of law on this issue. In opposition, plaintiff's expert fails to address movants' prima facie showing with respect to the lack of informed consent claim. Accordingly, the cause of action based on lack of informed consent is dismissed (see, Faulknor v Shnayerson, 273 AD2d 271 [2000]).

Claims of negligent hiring, retention, supervision, training and control

Similarly, plaintiff has failed to address the opinions of defendants' expert with respect to these claims which are set forth in the verified bill of particulars. By not addressing these contentions of the defendants' expert, plaintiff's expert has failed to raise a triable issue of fact sufficient to defeat the defendants' motion for summary judgment on these issues (Rebozo v Wilen, 41 AD3d 457 (2007); Slone v Salzer, 7 AD3d 609 [2004]), and these claims are also dismissed.

Conclusion

The motion and cross-motion for summary judgment are granted only with respect to the issues of lack of informed consent, and negligent hiring, retention, supervision, training and control, and are otherwise denied.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C.

Footnotes

Footnote 1: A stipulation discontinuing this action against Jeffrey Tamborlane, M.D. was so-ordered by the court on May 27, 2008, thereby rendering this portion of the motion moot.

Footnote 2: An operation to restore as far as possible the integrity and functional power of a joint (Stedman's Medical Dictionary, 28th Ed.).

Footnote 3: A muscle causing flexion in a dorsal direction (Medline Plus Medical Dictionary [http://www.nlm.nih.gov/medlineplus/mplusdictionary.html]).

Footnote 4: An injury to a nerve that interrupts conduction causing temporary paralysis but not degeneration and that is followed by a complete and rapid recovery (Medline Plus Medical Dictionary [http://www.nlm.nih.gov/medlineplus/mplusdictionary.html]).

Footnote 5: The term "valgus" refers to a deformity in which an anatomical part is turned outward away from the midline of the body to an abnormal degree, in plaintiff's case resulting in a "knock knee" appearance (see generally, Stedman's Medical Dictionary, 28th Ed.).

Footnote 6: While plaintiff's claim with respect to the immobilizer might arguably be correct, an issue which need not be decided herewith, the claims with respect to damage caused by a hematoma are sufficiently alleged in the verified bill of particulars and supplemental verified bill of particulars as to each defendant in such alleged departures as "negligently causing peroneal nerve damage and permanent nerve damage to the plaintiff", "negligently performing said surgery resulting in nerve damage . . ", "failing to prevent peroneal nerve damage, foot drop, and other damages to the plaintiff", and "failing to take adequate notice of plaintiff's condition."