Meeks v Weizberg
Annotate this CaseDecided on June 9, 2009
Supreme Court, Richmond County
Stephanie M. Meeks, an infant by her m/n/g TINA MEEKS and TINA MEEKS, Individually, , Plaintiff(s),
against
Moshe Weizberg, M.D., LYNN B. RAPP, M.D., VINCENT J. BROILLET, M.D., STATEN ISLAND UNIVERSITY HOSPITAL and EMERGENCY MEDICINE SERVICES OF STATEN ISLAND, P.C., Defendant(s).
100518/2007
Judith N. McMahon, J.
On or about January 25, 2007, the plaintiffs commenced this medical malpractice action against defendants Drs. Moshe Weizberg, Lynn B. Rapp, Vincent J. Broillet, and Staten Island University Hospital [hereinafter "SIUH"] and Emergency Medicine Services of Staten Island [hereinafter "Emergency Medicine"]. The plaintiffs contend that the defendants collectively failed to, inter alia, timely treat and diagnose the infant plaintiff's ovarian cyst. Issue was joined and discovery is now complete. Presently, Dr. Moshe Weizberg, Emergency Medicine, SIUH, and separately Dr. Lynn B. Rapp, are all moving for summary judgment on the ground that they each did not deviate from accepted medical standards and practice in the treatment rendered to the infant plaintiff.
It is undisputed that the infant plaintiff presented to SIUH on January 16, 2006, with complaints of pain on her right side. Dr. Weizberg evaluated the plaintiff and ordered an ultrasound to determine the diagnosis. Dr. Weizberg signed out of SIUH and plaintiff was then under the care of a nonparty attending physician at SIUH. The infant plaintiff was thereafter diagnosed with an ovarian cyst and discharged with instructions to follow-up with her pediatrician.
On March 18, 2006, the infant plaintiff again presented to SIUH with the same complaints. An additional ultrasound was performed that confirmed the presence of the same ovarian cyst on the infant plaintiff's right ovary. Dr. Vincent Broillet requested a consultation by an Obstetrician/Gynecologist, Dr. Lynn B. Rapp. Dr. Rapp presented the option to the infant plaintiff's parents for treatment by surgery or oral contraceptive pills and pain medication, which they selected. Thereafter, the infant plaintiff was seen by three additional doctors and eventually admitted to Columbia Presbyterian Hospital where an open laparotomy was performed and resulted in removal of her appendix, right ovary and fallopian tubes. The plaintiffs allege that the defendants were negligent in the care and treatment they rendered to the infant plaintiff by failing to, inter alia, timely diagnose and render appropriate treatment.
It is well settled that a "proponent of a summary judgment motion must make a prima [*2]facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Once the movant has satisfied this burden, "the burden shifts to the [opponent] to lay bare his or her proof and demonstrate the existence of a triable issue of fact" (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). In this regard, the court is enjoined to accept the evidence tendered by the opposing party as true, and "must deny the motion if there is even arguably any doubt as to the existence of a triable issue" (Fleming v. Graham, 34 AD3d 525 [2d Dept 2006] quoting Barker v. Briarcliff School Dist., 205 AD2d 652, 653 [2d Dept 1994] [internal quotation marks omitted]).
I.Dr. Weizberg, Emergency Medicine and SIUH's motion for Summary Judgment
The defendants, Dr. Weizberg, Emergency Medicine and SIUH have established their prima facie entitlement to summary judgment by adducing expert opinion that they did not deviate from good and accepted medical practice in the treatment rendered to the infant plaintiff (Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]). Specifically, Dr. Weizberg, Emergency Medicine and SIUH provided the expert affirmations of Drs. Howard G. Nathanson and Robert A. Slutsky who opined that the treatment rendered by the defendants was within the accepted medical standards. Dr. Nathanson and Dr. Slutsky both indicated that, inter alia, Dr. Weizberg's limited interaction and determination to order an ultrasound was well within accepted medical standards.
In opposition the plaintiffs failed to raise triable issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 322, 325 [1986]). The plaintiff submitted the medical affirmation of a New York licensed Obstetrician/Gynecologist who opined that the defendants deviated from accepted medical practice in, inter alia, failing to refer the infant plaintiff to a gynecological specialist immediately. However, the affirmation is conclusory and lacks any factual support explaining why it was an alleged deviation (Rebozo v. Wilen, 41 AD3d 457, 459 [2d Dept., 2007]; Germaine v. Yu, 49 AD3d 685, 687 [2d Dept., 2008][finding that the defendant physician transferred the responsibility of the plaintiff to another physician and therefore no proximate cause or deviations were found]). Moreover, the plaintiffs failed to establish that the alleged deviations by defendants was a proximate cause of the infant plaintiff's injuries (id.). As a result, summary judgment is appropriate.
II.Dr. Lynn B. Rapp's motion for summary judgment
In support of her motion for summary judgment Dr. Rapp presented sufficient evidence to establish her prima facie entitlement to summary judgment (Chance v. Felder, 33 AD3d 645, 645-646 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). The defendant submitted the expert affirmation of Dr. Vincent D'Amico, who opined that Dr. Rapp's diagnosis and treatment was well within the accepted medical standards. Specifically, Dr. D'Amico indicated that Dr. Rapp's presentation of treatment options to the plaintiffs that included oral contraceptive treatment and surgery was standard practice and further, that her treatment/diagnosis was not a proximate cause of the infant plaintiffs injuries.
In opposition, the plaintiffs have again failed to raise any triable issues of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). Plaintiff presented the medical affirmation of a New York licensed Obstetrician/Gynecologist who opined that Dr. Rapp deviated from accepted medical practice by not recommending immediate removal of the ovarian [*3]cyst. However, this opinion by the expert is merely conclusory and lacks any factual support (Rebozo v. Wilen, 41 AD3d 457, 459 [2d Dept., 2007]; Germaine v. Yu, 49 AD3d 685, 687 [2d Dept., 2008]). Further, the plaintiffs have failed to establish that the alleged deviations by Dr. Rapp were a proximate cause of the infant plaintiff's ovarian cyst rupture. As a result, summary judgment is appropriate.
Accordingly, it is
ORDERED that the defendants Dr. Moshe Weizberg, Emergency Medicine Services of Staten Island, P.C., and Staten Island University Hospital's motion for summary judgment is hereby granted, and it is further
ORDERED that the complaint is dismissed in its entirety against defendants Dr. Moshe Weizberg, Emergency Medicine Services of Staten Island, P.C., and Staten Island University Hospital, and it is further
ORDERED that the defendant Dr. Lynn B. Rapp's motion for summary judgment is hereby granted, and it is further
ORDERED that the plaintiff's complaint is dismissed against Dr. Lynn B. Rapp, and it is further
ORDERED that the Clerk enter Judgment Accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.
Dated: June 9, 2009E N T E R,
______________________________
Hon. Judith N. McMahon
Justice of the Supreme Court
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