Gasper v Burniewicz

[*1] Gasper v Burniewicz 2009 NY Slip Op 52558(U) [25 Misc 3d 1243(A)] Decided on December 17, 2009 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2009
Supreme Court, Richmond County

Nicholas Gasper and KAREN CITO-GASPER, Plaintiffs,

against

Anthony Burniewicz, DPM, PHYLLIS MERLINO, DPM, JOHN MERLINO, DPM, and VICTORY PODIATRY ASSOCIATES, PLLC, Defendant(s),



103147/2007

Judith N. McMahon, J.

Plaintiffs commenced this medical malpractice action on or about August 14, 2007, alleging, inter alia, that the defendants improperly treated the plaintiff for his foot pain resulting in surgery and subsequent diagnosis of Reflex Sympathetic Dystrophy (hereinafter "RSD"). Issue has been joined and discovery is now complete. Presently, defendants Drs. Phyllis Merlino and John Merlino and Victory Podiatry Associates are moving for summary judgment contending the minimal treatment rendered by the two doctors lacks any causal nexus to the plaintiff, Nicholas Gasper's injuries. Additionally, Dr. Anthony Burniewicz is separately moving for summary judgment contending that he did not deviate from good and accepted medical standards in the treatment he rendered to the plaintiff, Nicholas Gasper.

It is undisputed that in 2004 the plaintiff, Nicholas Gasper, began to experience foot pain and was treated by non-party podiatrist Dr. Edward Ferinando who diagnosed the plaintiff with a fractured tibial sesamoid. Dr. Ferinando treated the plaintiff with a bone stimulator. Plaintiff's pain was unresolved and he thereafter presented to non-party podiatrist Dr. Randy Cohen, who confirmed the existence of the fractured tibial sesamoid bone, injected pain medication and performed an inconclusive bone scan on the plaintiff testing for avascular necrosis [FN1]. Plaintiff, Nicholas Gasper, first presented to the defendant Dr. Anthony Burniewicz on September 16, 2005, with similar complaints. Dr. Burniewicz took x-rays and confirmed the existence of the fracture and recommended surgery. Dr. Burniewicz performed the surgery [FN2] on October 28, 2005. On November 5, 2005, Nicholas Gasper was seen for his first post-operative visit. It was at this point that plaintiff contends he began expressing his sensations of pain. Dr. Burniewicz indicates [*2]he treated the plaintiff with a normal course of pain management including rest, elevation, medication and ice. Plaintiff's second post operative visit occurred on November 12, 2005, whereby plaintiff contends he expressed extreme pain. Dr. Burniewicz noted that the sutures were removed.

On November 26, 2005, the plaintiff presented to defendant Dr. John Merlino for the first, and only time. It is undisputed that Dr. John Merlino provided the plaintiff, Nicholas Gasper, with a CAM walker and a prescription for Vicodin. On November 28, 2005, the plaintiff presented to Dr. Burniewicz with complaints of calf pain. Dr. Burniewicz recommended plaintiff see non-party Dr. Stephen Kulick, a pain management specialist. Thereafter, plaintiff presented to Staten Island University Hosptial where they checked for deep vein thrombosis and no blood clot was found. On November 30, 2005, the plaintiff presented to New York Presbyterian Hospital-Cornell Medical Center and was thereafter diagnosed with RSD. The plaintiff has continued treatment for RSD today and has a spinal stimulator permanently implanted in his lower back to stimulate blood flood to his right foot. In commencing this action, plaintiff Nicholas Gasper, alleges, inter alia, that defendant Drs. Phyllis Merlino, John Merlino and Anthony Burniewicz improperly treated him, specifically that they failed to exhaust all noninvasive procedures before performing surgery which resulted in him being diagnosed with RSD.

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon 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 v Prospect Hosp., 68 NY2d at 324; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

I.Dr. Phyllis Merlino, Dr. John Merlino and Victory Podiatry Associates' motion for summary judgment [Motion 004]

Here, the defendants Dr. Phyllis Merlino, Dr. John Merlino and Victory Podiatry Associates have established their entitlement to summary judgment by presenting expert evidence, the affidavit of Dr. Arden Smith, a New York State licensed podiatrist, who opined that they did not deviate from good and accepted medical practice in their treatment of the plaintiff (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). Defendant Dr. Phyllis Merlino established that she did not deviate from good and accepted medical standards in her limited treatment, by assisting co-defendant Dr. Burniewicz in the surgery, of plaintiff Nicholas Gasper. Dr. John Merlino has established that his limited contact with plaintiff on November 26, 2005, did not contribute or in any way cause the plaintiff to sustain RSD. Even assuming plaintiff's contention that defendant Dr. John Merlino did examine plaintiff Nicholas Gasper on that [*3]occasion [FN3] such examination would not have caused the RSD.

In opposition, the plaintiff has failed to raise a triable issue of fact with respect to Dr. Phyllis and John Merlino and Victory Podiatry Associates. Plaintiff failed to present any evidence that the limited treatment rendered by these defendants caused or exhibited any deviation from accepted medical standards. Here, plaintiff's conclusory expert affirmation lacked factual support and failed address assertions made by the defendant Drs. Merlino and Victory Podiatry Associates's expert affirmation and explain why the treatment rendered by the defendants, in a limited capacity (one time, respectively) deviated from the accepted medical standard (Rebozo v. Wilen, 41 AD3d 457, 457 [2d Dept., 2007]). Further, as was similar to the case in Rebozo, the expert failed to "explain how the plaintiff's injuries would have been less severe with an earlier diagnosis of RSD", and thus, failed to raise a triable issue of fact regarding the competent producing cause of her injuries" (id.). As a result, summary judgment is appropriate in favor of Dr. Phyllis Merlino, Dr. John Merlino and Victory Podiatry Associates.

II.Dr. Anthony Burniewicz's motion for summary judgment [Motion 005]

The defendant Dr. Burniewicz has established his prima facie entitlement to summary judgment by adducing expert opinion that he did not deviate from good and accepted medical practice in his treatment rendered to the plaintiff (Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]). Specifically, Dr. Burniewicz provided the expert affirmation of Dr. Michael J. Trepal, who opined that the treatment rendered by Dr. Burniewicz was within the accepted medical standards. Dr. Trepal indicated that, inter alia, Dr. Burniewicz's recommendation of surgery and treatment of the plaintiffs pain complaints were well within accepted medical standards. Dr. Trepal also contends Dr. Burniewicz's failure to take an MRI and diagnose avascular necrosis prior to surgery "had no bearing on the need for surgery; avascular necrosis is irrelevant and is not a pre-requisite to the removal of the tibial sesamoid bone".

However, in opposition, the plaintiff submitted the redacted medical affirmation of a New York licensed podiatrist who opined that Dr. Burniewicz deviated from accepted medical practice in, inter alia, failing to order an MRI and failing to confirm that plaintiff, Nicholas Gasper's tibial sesamoid bone had avascular necrosis (Alvarez v. Prospect Hosp., 68 NY2d 322, 325 [1986]). The doctor opined that Dr. Burniewicz should have recommended more conservative treatment prior to performing surgery. Additionally, the expert opined that considering the testing of the bone after removal and its subsequent negative diagnosis for avascular necrosis it should not have been removed. Plaintiff's expert contends that a diagnosis of avascular necrosis prior to removal of the bone is necessary because a negative diagnosis would indicate the bone was still receiving blood flow and have an ability to heal and recover. Clearly, the expert affirmations raise issues of fact, among which includes whether a diagnosis of avascular necrosis is necessary prior to removal and as such, Dr. Burniewicz's motion for summary judgment is denied as medical malpractice actions where the parties offer conflicting expert opinions raises a credibility issue requiring a jury's resolution (Dandrea v. Hertz, 23 AD3d 332 [2d Dept 2005]; Shields v. Baktidy, 11AD3d 671 [2d Dept 2004]; Barbuto v. [*4]Winthrop University Hosp., 305 AD3d 623 [2d Dept. 2003]).

With respect to plaintiff Nicholas Gasper's cause of action based upon informed consent,

Public Health Law § 2805-d (1) defines lack of informed consent as the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'. (Manning v. Brookhaven Memorial Hosp. Med. Ctr., 11 AD3d 518, 520 [2d Dept., 2004]).

To recover for a lack of informed consent cause of action the plaintiff "must allege that the wrong complained of arose out of some affirmative violation of plaintiff's physical integrity" and further that "a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she had been fully informed and that the lack of consent is a proximate cause of the injury or condition for which recovery is sought (Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000]; Iazzetta v. Vicenzi, 200 AD2d 209, 213-214 [3d Dept., 1994]).

Here, the plaintiff has alleged in the complaint that the defendants "permitted certain treatment and procedure to the plaintiff, NICHOLAS GASPER, without obtaining the plaintiff's informed consent, without giving him sufficient information upon which to formulate an intelligent consent to said treatment/procedure(s)." Specifically, the plaintiff contends that defendant Dr. Burniewicz never informed him that RSD was a possible risk of surgery and that plaintiff would not have undergone surgery had he been aware of such a risk.

Here, Dr. Burniewicz has successfully established his entitlement to summary judgment as a matter of law on the informed consent cause of action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Dr. Burniewicz has presented sufficient evidence to establish that he provided the plaintiff, Nicholas Gasper, with all the requisite alternatives and risks associated with the procedure. In opposition, the plaintiff has successfully raised triable issues of fact regarding whether Dr. Burniewicz provided the plaintiff with all the risks of the procedure sufficient for the plaintiff to make a knowledgeable evaluation (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Specifically, the plaintiff provides evidence that risk of nerve damage, such as RSD, were not properly presented to him prior to surgery and as such, the motion by defendant Burniewicz is denied.

With respect to Dr. Burniewicz's motion for summary judgment on plaintiff Karen Cito-Gasper's derivative cause of action, such motion is denied.

Accordingly, it is

ORDERED that the defendant Dr. Phyllis Merlino, Dr. John Merlino and Victory Podiatry Associates' motion for summary judgment is hereby granted in its entirety, and it is further

ORDERED that the complaint and all cross claims are hereby dismissed as against Drs. Phyllis Merlino, John Merlino and Victory Podiatry Associates and it is further

ORDERED that Dr. Anthony Burniewicz's motion for summary judgment is hereby [*5]denied, and it is further

ORDERED that any and all additional requests for relief are hereby denied, and it is further

ORDERED that the case proceed immediately to trial, and it is further

ORDERED that the Clerk enter judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

E N T E R,

Dated: December 17, 2009______________________________

Honorable Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:Avascular necrosis is death of bone tissue due to lack of blood supply.

Footnote 2:While on the Operative Report the defendant Dr. Phyllis Merlino is listed as the surgeon and Dr. Anthony Burniewicz is listed as the assistant, both doctors testified that this was a clerical error and it was, in fact, Dr. Burniewicz who performed the surgery and Dr. Phyllis Merlino who assisted. Plaintiff attempts to create a question of fact regarding this error, however, the Court is not persuaded. The doctors testimony, along with pre and post operative treatment rendered by Dr. Burniewicz, with no pre or post operative treatment rendered by Dr. Phyllis Merlino, along with all the other records where Dr. Burniewicz is the treating physician suggest that it was in fact a clerical error.

Footnote 3:Dr. John Merlino contends the visit on November 26, 2005, was merely to dispense a CAM walker and a prescription at the request of Dr. Burniewicz.