J.S. v Goldweber

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J.S. v Goldweber 2012 NY Slip Op 31020(U) April 17, 2012 Supreme Court, New York County Docket Number: 106897/08 Judge: Joan B. Lobis 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. [* 1]. w NNED ON411812012' , ~ SUPREME COURT OF THE STATE OF NEW YORK PRESENT: - NEW YORK COUNTY HQN. JOAN 8, LOBIS PART 6 Justice J.S. INDEX NO. Plaintiff, -w- MOTION DATE 2/7/12 MOTION SEQ. NO. BRIAN GOLDWEBER, M.D., ET. AL. - 106897/08 - 003 MOTION CAL. NO, PAPERS.NUMBERED Notice of Motlon I @der to $how Causa Affidavits Exhibits 1-16 Answerlng Affidavlte - Exhibita 18-24 Replying Affidavits 25-27 FILED APR 1 2 2 8m NEW YORK COUNW CLERK'S OFFICE Dated: Check one: '&,./) L[XI FINAL DISPOSITION c JOAN B OBIS, J.S.C. [ J NON-FINAL DISPOSITION [* 2] Plaintiff, -againstBRIAN GOLDWEBER, M.D., BRIAN GOLDWEBER, M.D., LLC, ABBE J. CARNI, M.D., ABBE J. CARNI, M.D., P.C., EDWARD GOLDBERG, M.D., and EDWARD GOLDBERG, M.D., P.C., Index No. 106897/08 Peckl9e sed Q ¬& .! z FILED NEW YORK COUN77/ CLERK S OFFICE In Motion Sequence Number 003, defendants Edward Goldberg, M.D., and Edward Goldberg, M.D., P.C. (the Goldberg Defendants ) move, by order to show cause, for an order, pursuant to C.P.L.R. Rule 32 12, granting them summaryjudgment on the basis that plaintiffs causes of action against them have no merit and that no triable issue of fact remains, or in the alternative, granting them partial summary judgment dismissal of plaintiffs claims for punitive damages. In Motion Sequence Number 004, defendants Abbe J. Carni, M.D., and Abbe J. Carni, M.D., P.C. (the Carni Defendants ) also move for summary judgment. Plaintiff opposes defendants motions on the grounds that the motions are insufficient to foreclose all theories of negligence and causation. This case is one of a number of lawsuits commenced by patients of defendant Brian A. Goldweber, M.D., a former anesthesiologist. In 2007, Dr. Goldweber became the focus of aNew Defendants Brian Goldweber, M.D., and Brian A. Goldweber, M.D., LLC, have been discharged in bankruptcy and have not appeared in this action. [* 3] York City Department of Health ( NYCDOH ) investigation after a number of his patients were discovered to have contracted hepatitis B and C viruses after their treatment with him. The NYCDOH eventually determined that the manner in which Dr.Goldweber administered anesthesia caused a hepatitis outbreak among these patients; the hepatitis outbreaks involved some patients who were administered anesthesia by Dr. Goldweber on June 3,2005 or August 14-15,2006. Plaintiff was Dr, Goldberg s patient. He saw Dr. Goldberg for various abdominal symptoms and complaints, including abdominal discomfort, pain, nausea, vomiting, and diarrhea, beginning in 200 1. Plaintiff had been diagnosed with human immunodeficiency virus ( HlV7)in 1994 and was on anti-viral treatment during the time he treated with Dr.Goldberg. In April 2003, Dr. Goldberg performed hepatitis A, B, and C testing on plaintift he tested positive for antibodies against hepatitis A and B, indicating prior exposure, but tested negative for antibodies against hepatitis C, indicating that he had not previously been exposed to hepatitis C ( HCV ). On March 21 and April 6,2006, respectively, Dr. Ooldbergperformed a colonoscopy and an upper endoscopy on plaintiff, at his office, while Dr. Goldweber administered intravenous anesthesia using propofol. The procedures themselves were uneventful. On April 24, 2006, and January 9,2007, plaintiff s blood tested negative for antibodies against HCV. However, in May 2007, plaintiff wafi diagnosed with HCV and underwent antiviral treatment for same. Testing of plaintiffs blood after completion of the antiviral therapy indicated that his body was clear of HCV. Plaintiff was not included in NYCDOH s final investigative report. Dr. Goldberg testified that when he was served with plaintiffs lawsuit, he looked into his records to see if there -2- [* 4] were any known source patients with HCV who were administered anaesthesia by Dr. Goldweber before plaintiff was administered anaesthesia by Dr.Goldweber. He testified that his review did not indicate that there was a known source patient who was administered anesthesia prior to plaintiff, but that not all of his patients had been tested. On or about May 19,2008, plaintiff commenced this lawsuit. His complaint raises causes of action sounding in negligence, medical malpractice, and lack of informed consent against all of the defendants for causing h m to contract HCV on April 6,2006, through Dr. Goldweber s i use of vials of propofol contaminated with the virus. As against the Goldberg and Carni Defendants, plaintiff brings claims sounding in vicarious liability, negligent hiring, and negligent retention. He also asserts a claim for punitive damages. The Goldberg and Carni Defendants maintain that plaintiff did not contract HCV on either March 21 or April 6,2006, and as such, his claims must fail. In support of their motion, the Goldberg Defendants offer an expert affirmation f o H. Alan Schnall, M.D. Schnall sets forth rm Dr. that he is a physician licensed to practice medicine in the State of New York and board certified in internal medicine with a sub-certification in gastroenterology, Dr. Schnall sets forth that he reviewed plaintiff s medical records as maintaified by Dr. Goldberg; the bills of particulars; the deposition rm transcripts ofplaintiff, Dr. Goldberg, Dr. Carni, and Dr. Goldweber; plaintiffs medical records f o Dr. Gambarin, Jewish Guild for the Blind, and Dr. Montana; and NYCDOH s final report regarding its investigation into Dr. Goldweber s medical practices. Based on this review, Dr. Schnall opines that there is no evidence that plaintiff contracted HCV through D .Goldweber s acts or omissions r on either March 21 or April 6 , 2006. Dr. Schnall avers that the incubation period (the time from -3- [* 5] exposure to detection) for HCV ranges from two weeks to six months, and is most commonly six to nine weeks. He maintains that this is corroborated by the statement on the laboratory reports indicating that HCV antibodies are typically not detected until approximately fourteen (14) weeks after exposure. Dr. Schnall asserts that the timing of plaintiffs positive result for HCV indicates that he contracted it some months after Dr. Goldweber administered anesthesia to him; because plaintiff tested negative for HCV in January 2007, and positive in May 2007, Dr. Schnall theorizes that he contracted HCV between October 2006 and April 2007. Dr. Schnall asserts that plaintiff may have contracted HCV during a knee arthroscopy in February 2007 or during his participation i a n study utilizing human growth hormone injections from July 2006 through October 2006, during which he received injections, intravenous txeatment, and multiple blood draws. Dr. Schnall also contends that plaintiff was at a high risk for HCV and other blood-borne diseases as evidenced by the serial and frequent HCV testing ordered prior to NYCDOH s investigation. Dr. Schnall opines that had plaintiff been infected with HCV on March 21 or April 6 , 2006, HCV antibodies would have been present nine months later when he was tested in January 2007, but they were not present at that time. Further, according to Dr. Schnall, the fact that plaintiff tested positive for HCV antibodies more than one year after his last procedure by Dr. Goldberg is not proof that plaintiff contracted HCV during Dr. Goldberg s procedures. Dr. Schnall adds that the NYCDOH report does not raise any suspicion that NYCDOH found any patients who contacted hepatitis from anesthesia administered by Dr. Goldweber at Dr. Goldberg s practice on March 21 or April 6,2006, I support of the Carni Defendants argument that there is no medical evidence n supporting plaintiff s claim that he contracted HCV through Dr. Goldweber s acts or omissions on March 21 or April 6,2006, they submit an a h a t i o n from Alan Pollock, M.D., a f f m that who -4- [* 6] he is a physician duly licensed to practice medicine in New York and board certified in internal medicine with a sub-speciality in infectious disease. Dr. Pollock states that he reviewed, amongst other things, plaintiffs pleadings; the pertinent medical records and laboratory records; NYCDOH s final report; and the parties deposition testimony. Based on this review, Dr. Pollock opines that there is no medical evidence that plaintiff contracted HCV during either the colonoscopy or the upper endoscopy. First, he points out that there is no indication in NYCDOH s final report that any patient who underwent a procedure at Dr. Goldberg s office on March 2 1 or April 6,2006, carried a highlyrelated genetic strain of the HCV that plaintiff contracted. Dr. Pollock maintains that without evidence that a prior patient carried a strain of HCV that was highly related to the strain that plaintiff carries, there is no way to determine that plaintiff contracted HCV during either procedure. He contends that plaintiff contracted HCV after the procedures, based on plaintiffs medical treatments in 2006 and 2007 and plaintiffs sexual behavior. Dr. Pollock states that the incubation period of HCV is six to ten weeks, with an average of seven weeks. He opines that if plaintiff had been exposed to HCV in March or April 2006, his blood work between April 2006 and January 2007 would have shown elevated liver function levels. Dr. Pollock states that plaintiff s liver function was normal and he tested negative for HCV antibodies as late as January 9,2007, but on April 19, 2007, his liver function levels were elevated, indicating an acute infection of HCV during April and May 2007, Dr. Pollock opines that an acute infection in ApriVMay 2007 indicates exposure approximately six to ten weeks prior, or between February and March 2007, not March or April 2006. In opposition, plaintiff maintains that defendants papers are insufficient to foreclose all theories of negligence and causation if plaintiff is given the benefit of all possible inferences. -5 - [* 7] Plaintiff submits an expert affidavit from Louis A. Schenfeld, M.D., who states that he is a physician licensed to practice medicine in Pennsylvania and board certified in internal medicine and infectious diseases. Dr. Schenfeld states that he reviewed plaintiffs blood testing records; NYCDOH s final report; defendants attorneys and experts affirmations in support of their motions for summary judgment; and select portions of defendants deposition transcripts. Based on his review of these documents, Dr. Schenfeld opines, with a reasonable degree of medical certainty, that defendants experts opinions as to causation are incomplete. Dr. Schenfeld states that defendants failed to perform a test for HCV RNA (viral genetic material), which would have conclusively established e whether plaintiff was infected with HCV as of July 2006. H states that he is informed that defendants knew of the existence of blood collected ffom plaintiff in July 2006, which is within the normal incubation period for HCV, but chose instead to base their motion solely on plaintiffs antibody test results. Dr. Schenfeld believes that this renders defendants experts opinions incomplete. He states that false negative HCV antibody testing has been documented in peerreviewed studies in individuals infected with HIV, as plaintiff is. He states that he reviewed an article that he believes to be accurate with sound research methodology. Based on the article, he states that false negatives in HCV testing can, in certain delineated circumstances, be caused by the depressed immune response caused by HIV s action on the body s immune system. Dr. Schenfeld states that the current standard of care in the United States as to HCV testing is to test for the 1presence of antibodies made in response to the presence of HCV; if that test is negative but HCV infection is still suspected, an HCV RNA assay could be run,which measures the amount of virus n actually present i the blood. Dr. Schenfeld states that samples of plaintiffs blood were taken in Thio, Chloe L, et al., Screening for Hepatitis C in Human Immunodeficiency VirusInfected Individuals, 3812) J. CLINICAL MICROBIOLQGY (2000). 575 -6- [* 8] July 2006 and preserved for later use; he is informed that the samples still exist and are available for testing. He states that an accurate way to establish whether HCV was in plaintiffs blood within the normal HCV incubation period from April 2006 is to run an HCV RNA assay on the blood sample f o July 2006. Dr. Schenfeld states that if the HCV RNA assay on the July 2006 specimen is rm negative, then plaintiff has no case and cannot prove causation, and in such a situation,he would be compelled to opine that causation could not be established and in fact would then be conclusively shown to be otherwise. In reply, defendants take issue with Dr. Schenfeld s description o f their experts affirmations as incomplete. The Goldberg Defendants aver that in April 201 1, they became aware of the existence of plaintiff s July 2006 blood tests. D r n discovery, they made a demand for the uig results of this blood test and for access to the blood samples in order to test the samples for HCV. There are three court orders dated April 5,20 11, May 3,2011,and July 17,20 11, directing plaintiff to provide defendants with authorizations for the blood samples. The Goldberg Defendants maintain that plaintiff never provided them access to the blood samples and never sent t e the results of any hm testing performed on these samples. The Goldberg Defendants argue that plaintiff cannot now claim that he is in need of further evidence, as he could have himself performed the testing that he now claims is crucial to proving his case; even if more discovery were needed, plaintiffs own inaction should not serve to defeat their summaryjudgment motion. Further, they argue that Dr. Schenfeld s opinion that the possibility that the July 2006 samples might, if tested, reveal information that might be relevant to their expert s analysis is speculative, unsubstantiated, and insufficient to defeat their motion for summary judgment. Moreover, the Goldberg Defendants maintain that the article cited -7- [* 9] by Dr. Schenfeld actually undermines Dr.Schenfeld s argument because it concludes that even the infrequent occurrence of false-negative results by tests for HCV antibodies was attributed not to H V infection but to a window of seronegativity following acute HCV.3 The Goldberg Defendants I maintain that if plaintiff were exposed to HCV in March or April 2006, the window of seronegativity following an acute HCV infection would have certainly expired by the time his blood was tested in January 2007. The Carni Defendants argue that the court should reject Dr. Schenfeld s affidavit because it was executed in Pennsylvania and there is no certificate of conformity as required by C.P.L.R. 6 2309 and Real Property Law tj 299-a; because neither Dr. Schenfeld nor the notary actually signed the affidavit; and because there is no notary stamp. The Carni Defendants maintain that these deficiencies render the affidavit inadmissible. Regardless, they argue that Dr. Schenfeld s opinion completely fails to address Dr. Pollock s opinion that plaintiff could not have contracted HCV while treating with Dr. Goldberg or Dr. Goldweber because no patient who had treated with an Dr. Goldberg prior to this period carried the HCV strain that plaintiff had. The C r i Defendants point out that other than generally stating that performing an HCV RNA test on the blood sample from July 2006 would be more reliable, D .Schenfeld fails to explain or specify how plaintiffs r blood tests taken on the other dates were unreliable. The Carni Defendants also assert that plaintiff failed to provide defendants with authorizations for the July 2006 blood samples during the discovery period. They complain that plaintiff is now relying on the July 2006 blood samples as both a sword and a shield; they argue that plaintiff cannot claim that defendants should have tested and Thio, supra note 2, at 576. -8- [* 10] reviewed the July 2006 blood sample when plaintiff denied defendants acce~s than. They argue to that plaintiff failed to meet his burden in rebutting defendants entitlement to summary judgment. As established by the Court of Appeals in Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986) and Winegrad v. New York Univ. Med. Ctr., N.Y.2d 851, 853 (198S), and as has 64 recently been reiterated by the First Department, it is a cornerstone of New Yorkjurisprudence that the proponent of a motion for summaryjudgment must demonstrate that there are no material issues of fact in dispute, and that [he or she] is entitled to judgment as a matter of law. Ostrov v. Rozbruch, 91 A.D.3d 147, 152 (1st Dop t 2012), citing Winegrad, 64 N.Y.2d at 853. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers. Alvarez, 68 N.Y.2d at 324, citing Wineqd, 64 N.Y.2d at 853. Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment 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 at 324, citing Zuckerman v. CiW ofNew York,49 N.Y.2d 557,562 (1980). The parties agree that there is no case if plaintiff did not acquire HCV on March 2 1 or April 6, 2006. The expert opinion testimony submitted by defendants is amply sufficient to demonstrate that plaintiff could not have acquired HCV on either March 21 or April 6, 2006, as evidenced by the negative results fiom HCV antibody tests and the normal results from liver function tests through January 2007. There is no real dispute regarding the incubation period for HCV; even taking into consideration both Dr. Schnall s and Dr. Pollock s statements, the shortest incubation -9- [* 11] period is two weeks and the longest is six months,and plaintiffs expert says nothing to the contrary. Plaintiff failed to rebut defendants showing and establish that a material fact does exist as to whether plaintiff acquired HCV on either March 21 or April 6,2006. Dr. Schenfeld s opinion that defendants experts affirmations are incomplete because an HCV RNA test of plaintiffs July 2006 blood sample could show that plaintiff contract HCV i April 2006 is speculative and fails to rebut n defendants prima facie showing. Additionally, Dr. Schenfeld fails to address the other marker for HCV in this case, the liver function tests, which defendants experts opined yielded normal results until April 19, 2007, when plaintiffs liver function levels were elevated, indicating an acute infection of HCV during April and May 2007. Defendants are entitled to summary judgment because, when confronted with defendants prima facie showing, plaintiff failed to proffer medical evidence or expert opinion testimony raising the true existence of a material issue of fact as to whether plaintiff acquired HCV on March 21 or April 6,2006. Given the disposition of the issue above, there is no need to address defendants remainingcontentions, except to note that defendants raise additional substantive and comprehensive arguments in support of their motion for summary judgment. The Goldberg Defendants argue that no claim for lack of informed consent is available under these circumstances; that the elements required for a claim of negligent hiring and retention against the Goldberg Defendants are not present; and that there is no legal basis fo plaintiff s claim for punitive damages. The Carni Defendants argue that neither Dr. Carni nor his professional corporation are vicariously liable for the acta of Dr. Goldweber under theories of actual or apparent agency; that the elements required for a claim of negligent hiring and retention against the Goldberg Defendants are not present; and that -10- [* 12] there is no legal basis fo plaintiffs claim for punitive damages. Plaintiff utterly fails to addrcss any of these issues except to argue that the outcome of this decision gs to vicarious liability should be the same BS other cases involving Dr. Goldweber. Even if defendants had not prevailed on the issue discussed above, plaintiffs opposition would not have been sufffcient to rebut defendants showing that they are entitled to summary judgment on plaintiffs remaining claims. Accordingly, it is hereby , ORDERED that defendants motions for summary judgment in Motion Sequence Numbers 003 and 004are granted, and the complaint is dismissed against Abbe J. Cami,M.D.; Abbe J. Carni, M.D., P.C.; Edward S.Goldberg, M.D.; and Edward S. Goldberg, M.D., P.C.; it is and further I ORDERED that the clerk is directed to enter judgment accordingly. I Dated: April / 7 , 2 0 1 2 ENTER: -11- .

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