Wolf v Pampered Foot Care LLC

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[*1] Wolf v Pampered Foot Care LLC 2009 NY Slip Op 50552(U) [23 Misc 3d 1102(A)] Decided on March 19, 2009 Supreme Court, New York County Lobis, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 19, 2009
Supreme Court, New York County

Dana Wolf, Plaintiff,

against

Pampered Foot Care LLC d/b/a NEW YORK CITY FOOT CARE, OLIVER ZONG, DPM, and DINA TSENTSERENSKY, DPM, Defendants.



105484/07



Stadtmauer & Associates, for plaintiff

Furman, Kornfeld & Brennan, LLP, for defendant Dina Tsentserensky, D.P.M.

Geisler & Gabrielle, for defendants Pampered Foot Care & Oliver Zong, D.P.M.

Joan B. Lobis, J.



Defendant Dina Tsentserensky, D.P.M., moves for an order, pursuant to C.P.L.R. Rule 3212, granting her summary judgment and dismissing plaintiff's complaint (the "Tsentserensky Motion"). Plaintiff Dana Wolf cross-moves for summary judgment as against all defendants (the "Wolf Cross Motion"). Defendants Dr. Zong and Pampered Foot Care LLC d/b/a NYC Foot Care s/h/a Pampered Foot Care LLC d/b/a New York City Foot Care ("Pampered") also cross-move for summary judgment (the "Zong/Pampered Cross Motion"). The claims asserted against Pampered are premised on vicarious liability for the alleged acts of Drs. Tsentserensky and Zong.

Plaintiff alleges podiatric malpractice and failure to obtain her informed consent, arising out of defendants' treatment of her foot between April 2005 and May 2006. On April 25, 2005, plaintiff had her first appointment at Pampered and saw Dr. Tsentserensky. Plaintiff had previously had a bunionectomy on her left foot in 2004 and had a prior knee surgery. At her April 25 appointment, plaintiff complained of pain in her left foot between her second and third metatarsal heads (i.e., the ball of her foot) that had been present since July 2004. After an examination, Dr. Tsentserensky diagnosed plaintiff with Morton's neuromas between the second and third, and the third and fourth metatarsal heads. A Morton's neuroma is the thickening of a nerve in between the metatarsal heads resulting from irritation or compression. Dr. Tsentserensky administered a trigger point cortisone injection in the second interdigital space and dispensed padding for the left foot. Cryosurgery was discussed and explained to plaintiff; cryosurgery is a procedure that breaks down the nerve in order to reduce pain and sensitivity in the nerve. Ms. Wolf was to follow up in one week. [*2]

According to the records, plaintiff was seen by Dr. Tsentserensky two more times between her initial visit and June 15, 2005. At these visits, plaintiff was given trigger point cortisone injections and she reported some improvement in the pain. But, by her June 15 appointment, plaintiff was still not pain-free, and expressed an interest in the cryosurgery. Dr. Tsentserensky performed the cryosurgery on June 23, 2005. During the cryosurgery, Dr. Tsentserensky made a small incision and inserted a probe into the space near the painful nerve; the probe administered nitrous oxide in three minute cycles, which froze the area around the nerve and caused the nerve to be stripped. The procedure was performed three times, with a one minute interval between each cycle. Afterwards, the wound was cleaned and dressed with a compression bandage. Plaintiff was instructed on how to care for the wound and was told to return in one week for a follow-up appointment.

At her follow-up appointment on June 30, 2005, she still complained of pain. She discussed with Dr. Tsentserensky the possibility that the cryosurgery would have to be repeated; Dr. Tsentserensky also explained that soft tissue requires three weeks to heal completely. Plaintiff returned on July 20, 2005, and reported that the pain had decreased since the cryosurgery, but that there was still noticeable pain. Notes from follow-up visits on August 16, 2005 and October 26, 2005 reflect that plaintiff was still experiencing pain in the ball of her foot, especially after walking, exercising, or wearing high-heeled shoes. Dr. Tsentserensky recommenced a second course of trigger point cortisone injections, which were administered at appointments on November 9, 2005; November 16, 2005. A third course of injections occurred sometime in January 2006 [FN1]; February 3, 2006; and, February 10, 2006.

At her February 10 appointment, plaintiff's left foot pain was noted to be somewhat improved but still present, so plaintiff scheduled a Koby Guard procedure. On March 2, 2006, Dr. Zong [FN2] performed the Koby Guard procedure. The procedure involved incising the deep transverse metatarsal ligament ("DTML") to allow the metatarsal heads to move more freely in order to give the neuroma more space. During the procedure, Dr. Zong used a guide to assist him in cutting the DTML. Dr. Zong also gave plaintiff a cortisone injection as part of the Koby Guard procedure.

Plaintiff returned to Pampered and saw Dr. Tsentserensky on March 6, 2006, four days after the Koby Guard surgery. She complained of pain at the surgical site. She had fifteen minutes of electrical stimulation applied to her left foot, and was told to return in one and one-half weeks to have the sutures removed. Plaintiff returned on March 15, 2006. She was still complaining of pain at the surgical site, although now it was more of a soreness than a sharp pain. Plaintiff had hydrotherapy and electrical stimulation applied to her foot that day. All of the sutures were removed and there was no sign of infection. Plaintiff was instructed to return in two weeks for a follow-up. [*3]

Plaintiff was next seen in the office on March 28, 2006; she complained of pain and soreness after walking for long periods of time, and also stated that her third toe was not bending or moving properly. Dr. Tsentserensky observed upon examination that plaintiff had a decreased range of motion for her third distal interphalangeal joint ("DIPJ"), and especially decreased plantar flexion—in other words, she was having trouble bending her left ankle and third toe. Dr. Tsentserensky applied a "buddy splint" to the second and third toes and instructed plaintiff to wear the splint every day. Dr. Tsentserensky also discussed with plaintiff the possibility of getting an MRI of her left foot at her next appointment, in order to determine the cause of the decreased range of motion. Plaintiff was told that she could return to exercise as tolerated, and to return in two weeks for a follow-up.

Plaintiff returned for her fourth follow-up on April 11, 2006, forty (40) days after the Koby Guard procedure. She was still complaining of pain in the second interdigital space, but stated that the pain had improved since her last visit. Plaintiff was still complaining of numbness and an inability to bend her third toe at the DIPJ, which had not improved since the last visit. Dr. Tsentserensky discussed with plaintiff "getting an MRI for further diagnosis of iatrogenic rupture of [the] flexor tendon of [of the] L[eft] foot and neuroma size for surgical planning of repair of flexor tendon and possible excision of [the] neuroma." Dr. Tsentserensky administered a trigger point cortisone injection and dispensed strapping and padding. Plaintiff was to return after the MRI.

The medical chart reflects that on April 28, 2006, plaintiff called Pampered to cancel the appointment she had scheduled for May 5, 2006. She told Dr. Tsentserensky that she would be having an MRI on May 1. Plaintiff said that she had sought a referral to a podiatric surgeon who specializes in neuromas from the orthopedic surgeon who had performed her knee surgery. She informed Dr. Tsentserensky that her left foot was more painful now than before she had the Koby Guard procedure, and that she was having more difficulty walking after the procedure than before. She was disappointed and upset with the service she had received at Pampered, and "she did not want the surgeon who had cut the tendon in her L[eft] foot erroneously to go back and do more surgery." Dr. Tsentserensky explained that the flexor tendon was, indeed, cut and that it needed to be corrected.

Plaintiff returned to Pampered on May 9, 2006. She reported that her pain had improved slightly in the area of the neuroma since the surgery, but that she now experienced an uncomfortable feeling of "rolling over something and then back over it again'" while walking. Plaintiff also inquired as to what could be done, surgically or conservatively, about the neuroma pain that she was still experiencing. It was noted upon exam that plaintiff still had numbness and difficulty moving the third toe. Dr. Tsentserensky again dispensed strapping and padding, and told plaintiff to wear the strapping every day. Plaintiff did not have further treatment at Pampered after May 9, 2006.

The complaint and bill of particulars allege that defendants' diagnosis of a neuroma was erroneous, and that both the wrongful diagnosis and the treatment that flowed from the alleged wrongful diagnosis were departures from good and accepted podiatric practice and caused a delay in proper treatment. The course of treatment included the strapping and padding, the trigger point [*4]injections, the croysurgery, and the Koby Guard procedure. Plaintiff alleges that the cortisone injections were excessive and contributed to causing the tendon in her foot to rupture. She also claims that defendants' failure to obtain MRI studies prior to the fourth cortisone shot and/or prior to the surgery constituted negligence. Plaintiff further alleges that errors made during the Koby Guard procedure caused the tendon in her foot to rupture. In support of her claims for lack of informed consent, plaintiff avers that she was not provided with sufficient information concerning alternative diagnoses or the risks and alternatives to the Koby guard procedure. As a result of defendants' collective departures, plaintiff alleges that she was forced to undergo unnecessary and painful treatment and procedures; further procedures and surgery including, but not limited to, fusion of her third toe and repair of her second toe, resulting in severe pain; and, that she will have to endure future corrective surgeries which will cause further substantial pain and discomfort.

All parties are seeking summary judgment. As an initial matter, the Wolf Cross Motion as brought against Dr. Zong and Pampered, and the Zong/Pampered Cross Motion, are both insufficient to make out a prima facie entitlement to judgment as a matter of law, since neither includes a copy of Dr. Zong's and/or Pampered's answers to plaintiff's summons and complaint. Pursuant to C.P.L.R. Rule 3212(b), a motion for summary judgment must be supported "by a copy of the pleadings." Failure to support the motion with copies of all pleadings as mandated by the statute requires summary dismissal of the motion. See, C.P.L.R. Rule 3212(b); Hamilton v. City of New York, 262 AD2d 283 (2d Dep't 1999); Freeman v. Easy Glider Roller Rink. Inc., 114 AD2d 436 (2d Dep't 1985). Although these cross motions are denied for failure to annex copies of all pleadings, the court will nevertheless discuss the merits of these motions.

In support of her motion for summary judgment, Dr. Tsentserensky submits the affidavit of William Spielfogel, D.P.M., a podiatrist board certified by the American Board of Podiatric Surgery and licensed to practice podiatry in the State of New York. He bases his opinion on a review of the bill of particulars, medical records, deposition transcripts, and other items of discovery. He opines, within a reasonable degree of podiatric certainty, that the care and treatment rendered by Dr. Tsentserensky to plaintiff was in accordance with good and accepted podiatric practice and did not cause plaintiff's injuries. Dr. Spielfogel states as his opinion that Dr. Tsentserensky appropriately diagnosed plaintiff as suffering from a neuroma, and appropriately treated her with cortisone injections; moreover, he sets forth that the solutions used in the injections, the number of injections, and the time periods between the injections were all in accordance with accepted standards of podiatric practice. It is further Dr. Spiefolgel's opinion that when the trigger points failed to alleviate plaintiff's symptoms, Dr. Tsentserensky appropriately performed cryosurgery. Dr. Spielfogel contends that, in his opinion, nothing regarding Dr. Tsentserensky's treatment—including the injections and cryosurgery—caused plaintiff's flexor tendon to be severed. He submits that plaintiff's medical records and recorded complaints do not show any evidence of a torn flexor tendon prior to Dr. Zong's performance of the Koby Guard procedure on March 2, 2006; that the MRI performed on May 1, 2006, did not show injury to the flexor tendon; and, that the flexor tendon was not found to be ruptured until plaintiff's July 2006 MRI.

The party moving for summary judgment in a medical malpractice action must make a prima facie showing of entitlement to judgment as a matter of law by showing the absence of a triable issue [*5]of fact as to whether the defendant physician was negligent. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 (1986). "[B]are allegations which do not refute the specific factual allegations of medical malpractice in the bill of particulars are insufficient to establish entitlement to judgment as a matter of law." Grant v. Hudson Val. Hosp. Ctr., 55 AD3d 874 (2d Dep't 2008). Once the movant makes a prima facie showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez, supra at 324 (citation omitted). Specifically, this requires, in a medical malpractice action, that a plaintiff opposing a physician's summary judgment motion

must submit evidentiary facts or materials to rebut the prima facie showing by the defendant physician that he was not negligent in treating plaintiff so as to demonstrate the existence of a triable issue of fact. . . . General allegations of medical malpractice, merely conclusory and unsupported by competent evidence tending to establish the essential elements of medical malpractice, are insufficient to defeat defendant physician's summary judgment motion.

Id. at 324-25 (citations omitted).

Dr. Tsentserensky fails to make a prima facie showing of entitlement to summary judgment. Her expert, Dr. Spielfogel, sets forth in a conclusory fashion that, in his opinion, Dr. Tsentserensky did not depart from the standard of care and that her treatment did not cause plaintiff's injuries. Dr. Spielfogel's affidavit does not address the specifics of plaintiff's allegations as set forth in her bill of particulars. He declares that Dr. Tsentserensky acted appropriately without setting forth a standard of care. Moreover, Dr. Spielfogel fails to attribute any alternative theory as to how plaintiff's tendon was severed, especially in light of the fact that plaintiff's medical records attribute the rupture to an "iatrogenic" injury, which is an injury that results from medical treatment. Although Dr. Spielfogel does allude to a theory that Dr. Zong, by himself, ruptured the tendon, he does not state so with enough specificity as to eliminate issues of fact regarding Dr. Tsentserensky's possible contribution to plaintiff's alleged injuries. In any event, Dr. Spielfogel's affidavit does not eliminate all material issues of fact and only addresses the allegations with general, conclusory statements; as such, Dr. Tsentserensky has not established her entitlement to judgment as a matter of law.

Even had Dr. Tsentserensky been successful in demonstrating a prima facie entitlement to summary judgment, plaintiff submits an affidavit that raises triable issues of fact and rebuts Dr. Tsentserensky's showing. In opposition to Dr. Tsentserensky's motion for summary judgment, and in support of her own cross motion for summary judgment, plaintiff submits the affidavit of Ann Nylund, D.P.M., a podiatrist licensed to practice podiatric medicine in the State of New York and a Diplomate to the American Board of Podiatric Surgery. Dr. Nylund bases her opinions on a personal examination of plaintiff, which occurred on June 16, 2008,[FN3] and a review of plaintiff's [*6]medical records, MRI reports, and the affidavit of defendant's expert, Dr. Spielfogel. Dr. Nylund sets forth her opinion, within a reasonable degree of podiatric certainty, that both Drs. Tsentserensky and Zong deviated from the standard of care for podiatrists. She claims that plaintiff never had a neuroma, and states that plaintiff should have been diagnosed with capsulitis, which is explained as an inflamation of the capsule that holds the joints together. She states that the July 5, 2006 MRI with contrast showed capsulitis.

Dr. Nylund contends that the standard of care requires an MRI or sonogram to confirm the diagnosis of a neuroma, and that defendants performed neither of these tests prior to embarking on their course of treatment. Had they performed either test, Dr. Nylund maintains, plaintiff would not have had to go through a harmful course of treatment and surgery. The failure to perform an MRI was a gross deviation from the standard of care, according to plaintiff's expert. Dr. Nylund states that plaintiff suffered through three series of eight corticosteroid injections, and that Dr. Tsentserensky did not specifically advise plaintiff of the risks of each injection, i.e., the weakening of associated tissue; she further sets forth that the corticosteroid combinations that were given to plaintiff cause tendon tissue destruction every time, with every injection. Even assuming a neuroma was present, Dr. Nylund avers that defendants' failure to observe the requisite limitations for corticosteroids—which she declares is one series of three injections over a one-month period—proximately caused the weakening of plaintiff's flexor tendon. Plaintiff's expert also alleges that Dr. Zong failed to consider the dangers inherent in performing a Koby Guard procedure when tissue and tendon is weakened by cortisone injections. Dr. Nylund asserts that it is "apparent that either Dr. Zong ruptured the weakened tendon negligently, or else the pressure inherent in the surgical procedure ruptured the weakened tendon." Regardless, Dr. Nylund opines that "the cortisone injections, in conjunction with the Koby Guard surgery, caused [plaintiff's] tendon rupture. Even without the unnecessary Koby Guard procedure, the tendon would have ruptured anyway as a result of the substandard care and treatment Plaintiff received from Defendants."

Assuming, arguendo, that Dr. Tsentserensky had made a prima facie showing of her entitlement to summary judgment, plaintiff has demonstrated the existence of a triable issue of fact as to whether Dr. Tsentserensky departed from the standard of care by not obtaining an MRI or sonogram of plaintiff's foot. However, plaintiff's papers do not demonstrate her entitlement to judgment as a matter of law. Among other issues of fact that remain, Dr. Nylund does not address whether more than one course of three corticosteroid injections over one month is contraindicated. While she sets forth that the standard is one series of three shots over one month, it remains unclear whether, if a break is taken between series, more than one series is appropriate or not.

Conversely, had plaintiff met her burden on this summary judgment motion, Dr. Tsentserensky has demonstrated the existence of facts that preclude summary judgment. In [*7]opposition to plaintiff's motion, Dr. Tsentserensky submits a second affidavit by Dr. Spielfogel in which he opines, inter alia, that there is no standard of care requiring an MRI or sonogram to diagnose a neuroma, that neuromas can be diagnosed either clinically or diagnostically, and that plaintiff presented to Dr. Tsentserensky with the "classic symptoms" of a neuroma (pain on side-to-side compression, numbness, audible click on compression, tingling and burning). These experts disagree as to the standard of care. It cannot be concluded, as a matter of law, that Dr. Tsentserensky did or did not depart from the prevailing standard of care by failing to perform an MRI or sonogram, nor is it clear what the standard of care is as to the appropriate number of corticosteroid injections a patient may have over a given period of time. In view of the experts' conflicting opinions, summary judgment must be denied. See Cruz v. St. Barnabus Hosp., 50 AD3d 382 (1st Dep't 2008). The issues of the experts' credibility as to the standard of care, and defendant's departure from such, if any, are issues for the trier of fact.

Turning to the merits of the Zong/Pampered Cross Motion, Dr. Zong supports his motion with an expert affidavit from Raymond J. Mollica, D.P.M., a podiatrist board certified by the American Board of Podiatric Surgery and duly licensed to practice podiatry in the State of New York. Dr. Mollica bases his opinions on his review of the bills of particulars and amended bills of particulars as to all defendants, Dr. Zong's records, the transcripts of the parties' depositions, the records of Drs. Hubbard and Wolf (neither of which are annexed to Dr. Zong's, or any party's, papers), and plaintiff's expert's affidavit. Dr. Mollica sets forth his opinion, within a reasonable degree of podiatric certainty, that Dr. Zong did not depart from accepted standards of podiatric practice; that proper informed consent was obtained from plaintiff; and, that Dr. Zong's alleged departures did not proximately cause plaintiff's injuries. Dr. Mollica states that his opinion is confined to addressing plaintiff's claims that defendants misdiagnosed a neuroma, destroyed plaintiff's tendon, and ruptured the tendon during the Koby Guard procedure. Dr. Mollica echos Dr. Spielfogel's opinion that neuromas are diagnosed clinically, and avers that the standard of care does not require the performance of an MRI to confirm the diagnosis. He maintains that plaintiff's clinical presentation supported the diagnosis of a neuroma (burning sensation and pebble-like feeling between second, third, and fourth metatarsal heads). Dr. Mollica points out that the May 1, 2006 MRI report indicates that a "residual neuroma" could not be ruled out, thus, "radiological testing never ruled out the presence of a neuroma in the location where one had been diagnosed" prior to the Koby Guard procedure.

Having determined that the diagnosis of a neuroma was proper, Dr. Mollica next opines that the ligament release procedure performed by Dr. Zong was appropriate, given that more conservative measures at treating the neuroma were unsuccessful. It is Dr. Mollica's opinion that Dr. Zong did not rupture plaintiff's flexor tendon. Based on Dr. Zong's description of his performance of the Koby Guard procedure, Dr. Mollica contends that Dr. Zong's technique was appropriate and within the standard of care, and that a rupture of the flexor tendon in the manner of plaintiff's injury is impossible, since a guide was used to protect the flexor tendon and other tissue surrounding the deep transverse metatarsal ligament. Dr. Mollica's conclusion that a flexor tendon rupture during the Koby Guard procedure would have been impossible is supported, he contends, by plaintiff's failure to complain of symptoms relating to a possible tendon rupture—inability to move her third [*8]toe—until over three weeks after the procedure. Dr. Mollica believes that plaintiff's complaints are "too distant from the surgery, temporally, to indicate a relationship between the surgery and the alleged injury." Further, Dr. Mollica agrees with Dr. Nylund's statement that even without the Koby Guard procedure, the tendon would have ruptured anyway; where he differs, he sets forth, is that he believes the procedure was indicated. Dr. Mollica does not opine on the aspect of plaintiff's claims regarding the destruction of plaintiff's tendon because, as he states,"this allegation seems to be directed toward the injection and cryotherapy performed by Dr. Tsentserensky."

Dr. Zong fails to meet his burden to demonstrate that no material issues of fact exist. Dr. Mollica's agreement that the tendon would have ruptured anyway, regardless of whether Dr. Zong properly performed the Koby Guard procedure or not, does not definitively answer the question of whether Dr. Zong contributed to the severing of plaintiff's flexor tendon. Plaintiff alleges that the combination of the cortisone injections and either an error during the Koby Guard surgery or the very performance of the surgery itself caused plaintiff's tendon to rupture. Dr. Mollica affirmatively refuses to even discuss the role that the cortisone injections may or may not have played in injuring plaintiff and he fails to address what the standard of care is in performing an invasive surgery within a relatively short period of time from a series of cortisone injections. Issues of fact remain, precluding summary judgment. Even had Dr. Zong demonstrated prima facie entitlement to judgment as a matter of law, plaintiff refutes this by raising issues of fact as to the standard of care and the propriety of performing the Koby Guard procedure after eight recent cortisone injections. Dr. Zong's expert says that the procedure was indicated, and that the standard of care did not require an MRI prior to the procedure, but plaintiff's expert, Dr. Nylund, disagrees and declares that the procedure was contraindicated, and that the standard did require an MRI. As indicated above in the discussion of the other motions, "[s]ummary judgment is not appropriate in a [podiatric] malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by a jury." Bengston v. Wang, 41 AD3d 625, 626 (1st Dep't 2007). See also, Cruz v. St. Barnabus Hosp., supra; Prigorac v. Park, 20 AD3d 363 (1st Dep't 2005).

The motion and cross motions are denied. The parties are scheduled to commence the trial on April 2, 2009. This constitutes the decision and order of the court.

Dated: March, 2009

____________________________

JOAN B. LOBIS, J.S.C. Footnotes

Footnote 1: The date of this appointment was illegible in the medical records.

Footnote 2: It appears from the defendants' descriptions of the division of labor at Pampered that Dr. Tsentserensky performs only relatively minor surgeries, such as the cryosurgery, while Dr. Zong performs more invasive surgeries, such as the Koby Guard procedure.

Footnote 3: Dr. Tsentserensky's attorney argues that Dr. Nylund's report should be disqualified from consideration because Dr. Nylund examined plaintiff, but no report of said examination was ever exchanged. Counsel cites to no specific case law or statute, but makes the broad statement that plaintiff "failed to abide by the discovery rules set forth in the CPLR and the Rules of Court in deliberately failing to exchange the report of an examining physician." From these papers, the court cannot determine that plaintiff's expert on this summary judgment motion is her expert for trial, nor can it be determined whether a report was even generated. Furthermore, defendants waived their right to an independent medical examination. At this juncture, Dr. Nylund's affidavit will be considered on its merits.



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