Marin v New York City Health & Hosps. Corp.
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Marin v New York City Health & Hosps. Corp. 2012 NY Slip Op 30063(U) January 12, 2012 Supreme Court, New York County Docket Number: 105616/06 Judge: Douglas E. McKeon Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. ANNEDON 111312012 [* 1] i I SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY t]ouQhE. McKebn JUSl&IWt9Cmnt PRESENT: 38 PART Justice MOTION DATE 1 -vMOTION SSO. NO. ( a3J I The following papers, numbered 1 to were read on this motion to/for I PAPERR NUMBERED Notice of Motion/ Order to Show Cauae - Affldavita - Exhibits ... .. UJ I Q t q F ;2 -6 OIL Anpwerlng Affidavits i I - Exhtbits I I Replyivg Affidavits Chow-Motion: 0 Yes d No l~ I Upon the foregoing papers, It ia ordered that this motion Motion is decided as per the annexed Memorandum Decision. 1 bL l l nz tu+ Check if appropriate: [7 DO NOT POST REFERENCE 1 [* 2] NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, REGINALD E. MANNING, M.D. and BRIAN A. DONALDSON, M.D., HON. DOUGLAS E. MCKEON: Defendants' motion for an order, pursuant to CPLR 32 12, entirety on the grounds that no inaterial issue of fact exists is granted in part and denied in part as fo 110ws : Plaintiff's leg was injured in a car accident on December 3,2004. He immediately presented to the Harlem Hospital emergency room via ambulance, Plaintiff claims that defendants failed to properly diagnose and timely appreciate the significance of the crush injury to his leg, failed to perform the proper diagnostic tcsts, and generally failed to adhere to accepted medical standards during treatment rendered between December 3, 2004 and June 7, 2005. Plaintiff alleges that as a result of the defendants' malpractice and negligence, he suffered an amputation of his left leg. A defendant 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 that in treating the plaintiff there was no departure from good and accepted medical practice or that any departure was not thc proximate cause of the injuries alleged. See Raqzres v. Nobel, 73 AD3d 204,206 (1 st Dep't 2010). To satisfy the burden, a defendant in a medical malpractice action must present expert opinion testimony that is supported by the facts in the record and addresses the essential allegations [* 3] in the bill of particulars. Id. Conclusory statements which do not address the allegations in the pleadings are insufficient to demonstrate entitlement to summary judgment. See C rean v. Sachs, 65 AD3d I O 1, 1 OS (1 st Dep t 2009). Failure to demonstrate a prima facie case requires denial of the summary judgment motion, regardless of the suffkiency of the opposing papers. See Alvarez v , Prospect Hosp., 68 NY2d 320,324 (1 986). If the movant makes a prima facie showing, the burden shif ts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of f x t which require trial of the action. Id. Specifically, in a medical malpractice action, a plaintiff opposing summary judgment must demonstrate that the defendant did in fact commit malpractice and that the malpractice was the proximate cause of plaintiff s injuries. See R o p e s , 73 AD3d at 207. Defendants set forth that the amputation of plaintiffs leg was necessary to prevent the plaintiff from bleeding to death. Shortly after plaintiff s arrival to the emergency room, it was determined that he would undergo two surgical procedures: a stabilization of the femur fracture ( to be performed by defendant Dr. Manning) and a revascularization of the left leg (to be performed by defendant Dr. Donaldson). Defendants argue that the attempt to save the plaintiffs leg during the surgeries failed due to the irreparable extent of the injury, and the leg was swollen and tense, with copious bleeding. Defendants motion in supported by affirmations of Daniel S. Rich, M.D., and orthopedic surgeon, and Steven G. Friedman, M.D., a vascular surgeon. In their respective affirmations, based on their review of relevant materials, they opine that the treatment rendered to and for the plaintiff ai Harlem Hospital was consistcnt with the accepted standards of medical care. They also include the affirmation of Dr. Vaughn Whittaker who discusses the issue of consent and knowledge of the possible loss of plaintiffs limb. In opposition, plaintiff argues, supported by an expert opinion, that at a point during the [* 4] surgery after procedures were performed, the limb was bleeding from the edges of the transected muscles, the leg was swollen and tense and there was copious bleeding. This indicated that the revascularization was successful and blood flow established to the limb, thus, amputation was improper. More specifically, it is the plaintiff s expert opinion, within a reasonable degree of medical certainty, that the above the knee amputation of Alfonso Marin s left leg was a direct result of (a) the delendants failure to adhere to their initial determination that the plaintiffs left leg was salvageable; (b) the defendants failure to appreciate that once blood flow has been restored through the successful revascularization the limb was viable; (c) the defendants failure to appreciate that bleeding was a sign of live muscle; and (d) the defendants failure to allow time to pass after the successful vascular surgery before determining that the limb was not viable and in need of amputation. In reply, defendants argue that it was only after defendants exhausted all other remedies that the decision was made to amputate. Upon a full review of the submitted papers, this Court determines that the plaintiff has demonstrated that material issues of fact exist, such that defendants motion for summary judgment as to the medical malpractice claim is denied. It cannot be determined as a matter of law that the defendants did not depart from accepted medical standards based upon the facts and sequence of events in this case. Under the totality of circumstances, this Court holds that it is for the trier of fact to determine whether the defendants departed from the accepted standards and whether those departures were a proximate cause of the amputation of plaintiffs leg. As to thc informed consent claim, defendants motion is granted. A defendant moving for summary judgment on a lack of informed consent claim must demonstrate that the plaintiff was indisputably informed of the loreseeable risks, benefits, and alternatives to the trcatmcnt rendered, [* 5] and that a reasonably prudent patient would not have declined to undergo the procedure/s if he or she had been informed ofthe potential complications. Id. To rebut a defendant s prima facie showing that he is entitled to summary judgment OII the issue of informed consent, a plaintiff must demonstrate, through competent evidence, that the doctor failed to disclose a reasonably foreseeable risk; that a reasonable person, informed of the risk, would have opted against the procedure; that the plaintiff sustained an actual injury; and that the procedure was the proximate cause of that injury. See Orphan v. Pilnik, 66 Rd3d 543, 544 (1st Dep t 2009). Thc record supports that the plaintiff was informed by Dr. Whittaker of the extent of his injury, the plan for surgery, the hope for the best possible outcome as well as the risks of bleeding, infection and loss of limb. This was documented in the record and the consent forms were admittedly signed by the plaintiff. Accordingly, defendants motion for an order granting summary judgment as to plaintiffs malpractice claims is denied; defendants part of the motion seeking an order granting summary judgment as to plaintiff s informed consent claim is granted This constitutes the decision and order of the court. ._ Date: January 12, 20 12 New York, New York / <>-: Douglas E. McKeon, J.S.C. JAN 13 2012 NEW YORK COUNW CLERKS OFFICE
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