Muller v South Shore Med. Care, PC
2012 NY Slip Op 31068(U)
April 16, 2012
Supreme Court, Suffolk County
Docket Number: 08-31917
Judge: Denise F. Molia
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copy
SHORT fORM ORDER
INDEX No. 08-31917
CALNo.
11-00645MM
SUPREME COURT - STATE OF NEW YORK
IAS. PART 39 - SUFFOLK COUNTY
PRESENT:
Hall.
DENISE F. MOLIA
Justice of the Supreme
Court
MOTION DATE 9-6-11
ADJ. DATE
12-9-11
Mot. Seq. # 004 - MD
---------------------------------------------------------------X
KIM MULLER and ERlC MULLER,
Plaintiffs,
O'BRlEN & O'BRlEN, LLP
Attorney for Plaintiffs
168 Smithtovm Boulevard
Nesconset, New York 11767
ROGAK & GIBBONS, LLP
Attorney for Defendants South Shore Medical
Care, Lewandoski, and Schroeder
50 Charles Lindbergh Boulevard, Suite 320
Uniondale, New York 11553
• against -
SOUTH SHORE MEDICAL CARE, PC, MARC
A. LEWANDOSKI, MD, CHERYL
SCHROEDER, PA, NOEL D'SILVA, MD and
GOOD SAMARlTAN HOSPITAL MEDICAL
CENTER,
Defendants.
SHAUB, AHMUTY, CITRlN & SPRATT, LLP
Attorney for Defendant D'Silva
1983 Marcus Avenue
Lake Success, New York 11042
BARTLETT, MCDONOUGH, BASTONE &
MONAGHAN, LLP
Attorney for Defendant Good Samaritan
670 Main Street
Islip, New Yark 1175 I
---------------------------------------------------------------X
Upon the following papers numbered I to -1.2- read on this motion summary judgment ; Notice of Motion! Order
to Show Cause and supporting papers I - 18
; Notice of Cross Motion and supporting papers _;
Answering Affidavits and
supporting papers 19·22; 23·37
; Replying Affidavits and supporting papers 38 - 39 ; Other __ ; (and at1et hearing
counsel in support mtd opposed to the nlOtion) it is,
ORDERED that this motion by defendant Noel D'Silva, M.D., seeking summary judgment
dismissing the complaint is denied.
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Muller v South Shore Medical
Index No. 08·31917
Page 2
Plaintiff Kim Muller commenced this action against defendants South Shore Medical Care, P.C,
Marc A. Lewandoski, M.D., Cheryl Schroeder, P.A.1, Noel D'Silva, M.D., and Good Samaritan Hospital
Medical Center to recover damages for medical malpractice. Plaintiff alleges, among other things, that
defendants failed to timely diagnose her form of hepatitis and that they failed to inform her that she
should permanently discontinue usage of the medication Aldomet. Plaintiff specifically alleges that Dr.
D'Silva failed to obtain a proper history, failed to perform or order the necessary liver function tests or
refer her to a specialist, and failed to provide an alterative medication to treat her hypertension once
there were obvious signs and symptoms ofliver dysfunction. Plaintiff's husband, Eric Muller, instituted
a derivative claim for loss of services.
The following facts are not in dispute. Plaintiff had been a patient of Dr. Lewandoski and his
medical practice, South Shore Medical Center, P.C. ("South Shore"), since 2003. In April 2005,
plaintifl'was diagnosed with anemia, secondary to her 1999 gastric bypass surgery and menstrual
bleeding, hypertension and fatty liver. Dr. Lewandoski prescribed Lotrel to treat her hypertension.
Upon referral by Dr. Lewandoski, plaintiff initially presented to Dr. D'Silva, a gastroenterologist, on
Septernberl6, 2005, complaining of recurrent nausea and anemia. After an examination of plaintiff, Dr.
D'Silva found no positive findings and recommended that plaintiff undergo a colonoscopy and an
esophagogastroduodenoscopy ("EGD"). The results of the colonoscopy and EGD were negative, but the
EGD showed a small gastric pouch. When plaintiff returned to Dr. Lewandoski on April 18, 2006, she
underwent a computer tomography ("CT") scan of her abdomen and pelvis, which revealed that she had
a fatty liver, and her liver functions tests ("LFTs") were mildly elevated. On April 27, 2006, plaintiff
presented to Dr. D'Silva for elevated LFTs. Although noting that she was obese, Dr. D'Silva determined
plaintiff otherwise was tine on examination. Plaintiff was instructed to follow-up in one month's time,
at which time her antinuclear antibody ("ANA") panel would be checked to rule out autoimmune
hepatitis. Plaintiff's LFTs continued to be elevated at her May 15th visit with Dr. D'Silva.
Plaintiff then returned to Dr. Lewandoski on July 1,2006, and she informed him that she was
contemplating becoming pregnant. As a result of this discussion, Dr. Lewandoski changed her blood
pressure medication to Aldomet 250 milligrams, twice-a-day. On July 18,2006, Dr. Faizur Chowdhury
diagnosed plaintiff with diabetes and Dr. Lewandoski prescribed Byetta to help treat it. On October 31,
2006, plaintiff presented to Dr. Lewandoski's office complaining of nausea, chills, weakness, dark urine,
and "yellowish discoloration," and was examined by P.A. Schroeder. After examining plaintift~ P.A.
Schroeder immediately referred her to Dr. D'Silva to rule out "acute viral hepatitis versus liver failure."
Later that day, when plaintiff sought treatment from Dr. D'Silva for an acute onset of jaundice, she
informed him that she was taking Protonix, Metformin, Byetta and Aldornet. Dr. D'Silva diagnosed
plaintiff with acute hepatitis. Dr. D'Silva recommended that plaintiff undergo an abdominal sonogram
IBy order of this Court, dated October 3, 2011, the action against Cheryl Schroeder wa<;
discontinued.
By order of this Court, dated September 9, 201 I, the action against Good Samaritan
Hospital was discontinued.
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Index No. 08-31917
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and a hepatitis panel. Plaintiff's hepatitis panel was negative, but her amlyase/lipasc levels were
elevated.
Plaintiffretumed to Dr. Lewandoski on November 1,2006, and he advised her to follow-up with
Dr. D'Silva for continued evaluation and treatment. Subsequently, plaintiff underwent an abdominal
sonogram at Good Samaritan Hospital Medical Center, which revealed hepatosplenomegaly, an enlarged
liver and spleen. Plaintiff still was jaundiced and feeling tired when she returned to Dr. D'Silva on
Novcmber 2nd, and her LFTs were still elevated, but test results were negative for Hepatitis A. As a
result of the abdominal sonogram, Dr. D'Silva consulted with Dr. Lewandoski and the plan was to stop
all of plaintiff's medications "unless absolutely necessary." When plaintiff saw Dr. Lewandoski on
Novcmber 41h and Dr. D'Silva on November 6th, she still was on Aldomet. On November 7, 2006,
plaintiff underwent a CT scan of her abdomen, which revealed evidence of periportal edema,
inflammation of the liver, and a smallS millimeter lesion in the right lobe of her liver. On November
10, 2006, plaintiff returned to Dr. D'Silva, and he noted that she had discontinued use of all her
medication and that her hepatitis was improving. On November 13'" and 14th, plaintiff presented to Dr.
Lewandoski, who notcd under current medications that she was taking Aldomet. After plaintiffs
November 19th visit to Dr. Lewandoski, she was not seen again by him until January 20, 2007, after she
had been diagnosed with "drug-induced hepatitis."
Dr. D'Silva continued to treat plaintiff during the months of November, December and January
in 2006. During those months, plaintiffs LFTs remained elevated and she remained jaundiced. On
November 15t\ Dr. D'Silva diagnosed plaintiff with acute hepatitis and cholestasis. On plaintiffs
November 28th visit to Dr. D'Silva, he noted that she was taking Aldomet and Metformin, and diagnosed
her as suffering from acute hepatitis, unknown etiology, with the possibility of Epstein Bar Virus. On
plaintiffs visits to Dr. D'Silva on December 51h and 6th, she still was jaundiced and her LFTs had
worsened. Dr. D'Silva recommended that plaintiff obtain a liver biopsy to rule out autoimmune
hepatitis. The liver biopsy concluded that plaintiff suffered from acute and chronic inflammation, active
hepatocytic necrosis, and protal bridging. As a result of the liver biopsy, Dr. D'Silva recommended that
plainti lIobtain a second opinion from Dr. Min, a hepatologist at the Bodenhiemer Group at New York
University Medical Center ("NYU"). On December 14, 2006, plaintiff was admitted into NYU. As a
result ora liver biopsy performed at NYU, Dr. Min diagnosed plaintiff with drug-induced hepatitis,
secondary to Aldomet. Plaintiff's use of Aldomet was permanently discontinued, although she
continued to take Metforrnin. Plaintiff was discharged from NYU on December 22, 2006.
On January 4, 2007, plaintiffretumed to Dr. D'Silva. After conducting an examination and
consulting with Dr. Min, Dr. D'Silva decided against giving plaintiff steroids and, instead,
recommended that she obtain an evaluation from NYU's transplant center. NYU's transplant center
indicated that plaintiff did not require any further treatment. On January 24, 2007, Dr. D'Silva noted
that plaintiff's LFTs were taking a downward trend. On February 1,2007, Dr. Min indicatcd that
plaintiff was "okay," and that hcr jaundice was "much improved," and Dr. D'Silva informed her that she
could return to work. On March pt and 15111, Dr. D'Silva noted that plaintiff's LETs were improved and
that her overall "drug induced hepatitis" was improving. On April 25, 2007, Dr. D'Silva noted that
plaintiffs LFTs had returned to nonnal, and that her status was post drug-induced hepatitis. He restarted
her on iron supplements for her anemia, and scheduled her for an EGO and repeat lab work. The EGO,
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preformed on June 29, 2007, revealed a small gastric pouch and a normal anastomosis. On August 22,
2007, plaintiff was asymptomatic and her status was '''anemia post drug-induced hepatitis." On October
25,2007, plaintiffs last date oftreatment with Dr. D'Silva, her LFTs were normal.
Dr. D'Silva now moves for summary judgment in his favor, arguing that he did not deviate from
good and acceptable medical standards in rendering medical care to plaintiff, and that his medical
treatment of plaintiff was not the proximate cause of plaintiff's alleged injuries. Dr. D'Silva, in support
of his motion, submits-copics of the pleadings, the parties' deposition transcripts, uncertificd copies of
plaintiff's medical records, and the affidavit of his expert, Sanford Goldberg, M.D. Dr. D'Silva also
submits a copy of a medical journal kept by plaintiff. Plaintiff opposes the motion on the bases that
there arc triable issue of fact as to which physician informed her to stop her medications, and as to when
those instructions were given. Plaintiff, in opposition to the motion, submits the affidavit of her expert,
Maxwell Chait, M.D. Defendants South Shore and Dr. Lewandoski (hereinafter referred to collectively
as "South Shore Medical") also oppose the motion on the ground that there are triable issues of fact as to
who, if anyone, authorized plaintiff to recommence taking her medications. South Shore Medical, in
opposition to the motion, submits copies of the pleadings, uncertificd copies of plaintiff's medical
records, and the deposition transcripts of Dr. Lewandoski and plaintiff.
To make a prima facie showing of entitlement to summary judgment in an action to recover
damages for medical malpractice, a physician must establish through medical records and competent
expert affidavits that the defendant did not deviate or depart from accepted medical practice in
defendant's treatment of the patient and that defendant was not the proximate cause of plaintiff's injuries
(see Castro v New York City Health & Hosps. Corp., 74 AD3d 1005,903 NYS2d 152 [2d Dept 2010];
Deutsch v Chug/assian, 71 AD3d 718,896 NYS2d 431 [2d Dept 201 0]; Plato v Guneratne, 54 AD3d
741,863 NYS2d 726 [2d Dept 2008]; Jones v Ricciardelli, 40 AD3d 935, 836 NYS2d 879 [2d Dept
2007]; Mendez v City of New York, 295 AD2d 487, 744 NYS2d 847 [2d Dept 2002]). A physician
owes a duty of reasonable care to his patients and will generally be insulated from liability where there is
evidence that he conformed to the acceptable standard of care and practice (see Spensieri v Lasky, 94
NY2d 231, 701 NYS2d 689 [1999]; Barrett v Hudson VI/lley Cardiovascular Assoc., P.c., 91 AD3d
691,936 NYS2d 304 [2d Dept 2012]; Geffner v Nortil Shore Univ, Hosp., 57 AD3d 839, 871 NYS2d
617 [2d Oept 2008]). A doctor is not a guarantor of a correct diagnosis or a successful treatment, nor is
a doctor liable for a mere error in judgment ifhe or she has considered the patient's best interest after
careful evaluation (see Ne.'ltorowich v Ricotta, 97 NY2d 393, 740 NYS2d 668 [2002]; De/sner v State
of New York, 66 NY2d 636, 495 NYS2d 359 [1985]; Bernard v Block, 176 AD2d 843, 575 NYS2d 506
[2d Dept 1991D. Where the defendant has met that burden, the plaintiff, in opposition, must submit a
physician's affidavit of merit attesting to a departure or deviation from acceptable medical practice and
attesting to the fact that the departure or deviation was a competent cause of the injuries sustained by the
plaintiff (see Stnkas v Streiter, 83 AD3d 18, 918 NYS2d 176 [2d Dept 2011]; Arkin v Resnick, 68
AD3d 692, 890 NYS2d 95 [2d Dept 2009]; Rebozo v Wilen, 41 AD3d 457, 838 NYS2d 121 [2d Dept
2007]; Joilnson v Qneens-Long Is. Group, 23 AD3d 525, 806 NYS2d 614 [2d Dcpt 2005]; Dellacone v
DorJ, 5 AD3d 625, 774 NYS2d 776 [2d Dept 2005]; Domaradzki v Glen Cove Ob/Gyn Assoc., 242
AD2d 282, 660 NYS2d 739 [2d Dept 1997]). However, general allegations of medical malpractice,
merely conclusory in nature and unsupported by competent evidence establishing the essential elements
of the claim, arc insufficient to defeat a motion for summary judgment (see Arkin v Resnick, supra;
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Dolall v Halperll, 73 AD3d 1117,902 NYS2d 585 [2d Dept 2010J; Holbrook v Vllited Hasp. Med.
Ctr., 248 A02d 358, 669 NYS2d 631 [2d Dept 1998]).
Here, Dr. D'Silva has established, prima facie, his entitlement to judgment as a matter of law by
submitting an affidavit from Dr. Sanford Goldberg, a board certified internist and gastroenterologist,
which demonstrated, prima facie, that he did not deviate or depart from acceptable standards of medical
care in his treatment of plaintiff, and that his treatment was not a proximate cause of plaintiff's injuries
(see Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Muniz v Mount Sinai Hosp. of
Queells, 91 A03d 612 [2d Dept 2012]; Ellis v Ellg, 70 AD3d 887, 895 NYS2d 462 [2d Dept 2010];
Adjetey v New York City Health & Hasps. Corp., 63 AD3d 865, 881 NYS2d 472 [2d Oept 2009J;
Myers v Ferrara, 56 A03d 78, 864 NYS2d 517 [2d Dcpt 2008]). Dr. Goldberg states that in his
opinion, within a reasonable degree of medical certainty, that Dr. D'Silva, at all times, acted within the
appropriate standard of care in providing medical care and treattnent to plaintiff, and that no act or
omission on Dr. D'Silva's behalf contributed or proximately caused plaintiff's injuries. Dr. Goldberg
slates that Dr. D'Silva was not managing plaintiff's hypertension and that he did not prescribe Aldomet
to treat her hypertension. Dr. Goldberg opines that Dr. D'Silva timely and appropriately stopped all of
plaintiff's medication after she presented to him with jaundice, appropriately recommended that she have
blood work drawn regularly, and undergo CT scanning and a liver biopsy, and referred her to the
appropriate specialists. Dr. Goldberg further states that Dr. D'Silva did not restart plaintiff on Aldomet;
that as soon as he noticed that her LFTs were worsening, he recommended she have a liver biopsy, and
that upon receipt of the biopsy results and consultation with a pathologist, Dr. D'Silva instructed
plaintiff once again to stop all medications. Dr. Goldberg concludes that Dr. D'Silva's
recommendations that plaintiff obtain a liver biopsy to exclude all other causes of hepatitis, which
resulted in her diagnosis of drug-induced hepatitis, and that he stopped all of her medication were
appropriate, and were within accepted standards of medical care.
However, in opposition, plaintiff, by submitting the affidavit of her expert, has raised triable
issues of fact as to whether Dr. D'Silva departed from good and accepted medical practice and
whether such departures were a proximate cause of her injuries (see Young v Struhl, 87 AD3d 1006,
932 NYS2d [2d Oept 201 1]; Howard v Kenlledy, 60 AD3d 905,875 NYS2d [2d Oept 2009]; Boutin
v Bay Shore Family Health Ctr., 59 AD3d 368, 872 NYS2d 523 [2d Oept 2009J; Borawski v
Huallg, 34 AD3d 409, 824 NYS2d 362 [2d Oept 2006]). Although Dr. Lewandoski was plaintiffs
primary care physician, and he prescribed Aldomet to treat her hypertension, plaintiffs expert, Dr.
Maxwell Chait, a board certified internist and gastroenterologist, states that it is his opinion, within a
reasonable degree of medical certainty, that the care and treatment rendered to plaintiff by Dr. D'Silva
was not in accordance with good and accepted medical practice, and that the acts or omissions by Dr.
D'Silva were contraindicated, and a proximate cause of plaint iff's injuries. Dr. Chait states that Dr.
D'Silva diagnosed plaintiff with acute hepatitis after she presented to him with acute onset jaundice.
Dr. Chait states that despite the fact that plaintiff was taking Aldomet, Dr. D'Silva did not ascertain
when she initially was prescribed Aldomet or what dosage she was taking, that he never considered
any other differential diagnosis other than acute hepatitis, and that he never considered that Aldomet
may have been the cause of her jaundice. Dr. Chait opines that Dr. D'Silva deviated from accepted
medical standards of care in his treatment of plaintiff by failing, among other things, to seek a second
opinion; to timely refer her to a specialist or for a liver biopsy; and by allowing plaintiff's continued
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use of Aldomet despite abnormal LFT readings, and her development of jaundice and hepatic failure;
and that such departure contributed to her injuries. Summary judgment is inappropriate in a medical
malpractice action where the parties present contlicting opinions by medical experts (see Colao v St.
Vincent's Med. Ctr.• 65 AD3d 660.885 NYS2d 306 [2d Dept 2009]; Adjetey v New York City
Health & Hosps. Corp., supra; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 760 NYS2d 199
[2d Dept 2003]; see aiso Espinal v Jamaica Hasp. Med. Ctr.• 71 AD3d 723, 896 NYS2d 429 [2d
Dcpt 2010]). Accordingly, Dr. Noel D'Silva's motion for summary judgment is denied.
~
Dcribe 1'.Mono
Dated:
I.S.C.
FINAL DISPOSITION
_X_
NON-FINAL DISPOSITION
