Carlin v Naidoo

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Carlin v Naidoo 2012 NY Slip Op 32459(U) September 20, 2012 Supreme Court, Suffolk County Docket Number: 08-30581 Judge: Ralph T. Gazzillo 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] INDEX NO. - 08-30583 CAL NO. - 10-00994MM SUPREME COURT - STATE OF NEW YORK T.A.S. PART 39 - SUFFOLK COUNTY PRESENT: 1-1011. - MOTION DATE 8-10-12 ADJ DATE 8-16-12 Mot. Seq. # 007 - MG RALPH T. GAZZILLO Justicc of the Supreme Court DUFFY & DIJFFY, ESQS. Altorney for Plaintiffs 1370 Rex Corp. Plaza Uniondale, New York 1 1556 - SHAUB, ATIMUTY, CITRTN & SPRATT Attorney for Defendant Naidoo 183 Marcus Avenue Lake Success, New York 1 1042 against - RA.TENDRAN NATDOO, M.D. , BARBARA ROSE, L.P.N.. and I-IIJNTlNGTON HOSPITAL ASSOCIATION, ; Defendants. / FUREY, FLREY, LEVERAGE, P.C. Attorney foi Defendants Rose and Huntington Hospital 600 Front Sixeet, P.O. Box 750 Hempstead, New York 1 1550 X Lipon the following papers iiuinbercd 1 to 1 j c a d on this motion and cross motion for summan, iudgment ;Notice 5 o f Motion/ Order to Show Cause and supporting papers (007) 1 -9 ;Notice o f Cross M3tion and suppoitingpapers-; Answering Affidavits and supporting papers 10-15 ; Replying Affidavits and supporting papers --; Other -: - ( it is. 1 ) ORDERED that niotioii (007) by the plaintiffs, I h i i c l Cal-lin anl3Jeanne Carlin, pursuant to C PLR 2221 (6) for lcave to renew thcir prior motions (004) and (005) which resulted in this court s order dated March 24, 201 1. and to consider plaintiffs opposition papcrs which were not previously before the court. i s granted. and the order dated March 24. 201 I is hereby recalled and vacated; and it i s fu1fhcr ORDERED that upon consideration of tlic prior motion, cross motion and opposition, the motion tlefcndant Iiajcndran Naidoo, M.D. pursuant lo CPLR 3212 for suinniary judgment dismissing thc complaini 2s asserted against him i s grantt-d with prejudice; and it i s further 13) [* 2] Carlin x r Naidoo index $ 0 . 08-30581 Page No 2 ORDERED that the motion by defendants THuntington Hospital and Barbara Rose pursuant to (I'PLR 32 1 2 ~ O Jan ordcr granting suininary judgment dismissing the complaint i s denied. I11 motion (004). dcfcndant Rajendran Naidoo, M.D. moved pursu'3nt io CPLR 321 2 for an order granting summary .judgnicnt dismissing plaintiffs coniplaint. Jn motion (005),del'endant Huntingtoll llospital slhia Huntington Hospital Association, and nurse Barbara Rose, moved for an ordcr granting suliimaiy judgment dismissing plaintiffs complaint. Both applications werc denied by this court's order dated March 23, 201 1. No papers in opposition to defendants' motions Mwe received prior to the issuance of said decision. and the court was unaware that the parties liad agreed to an adjournment of the motions until May 5 , 201 1, aftcr which time the plaintiffs' opposition was received. Thereafter, an appeal w a s filed of the March 24, 201 I order. The plaintiff moved, intcr alia, to hold thc appeal in abcyancc. to strike the rccord on appeal as inadequate, and to enlarge their time to serve and file a brief. By decision and order dated May 23, 2012, the Appellate Division dcniecl the motion. It is noted that in tlic brief submitted lo the Appellate Division Second Department by Huntington Hospital and nurse Rose, counsel for the defendants acknowledgcd that nunierous adjournments werc granted on consent and that they rcceived the plaiiitifTs opposition dated May 13, 2001. The plaintiffs now scck renewal of the prior motions (004) aiid (005) on the basis that the parties consented to an adjournment ofthe inotioiis to May 5 . 201 1, and therefore. their opposition was not considered hy this court in its order of March 24, 201 1. Defendants Huntington Hospital and Barbara Rose oppose this application on the basis, inter alia. that they would be deprived of the opportunity to scrvc a rcply. Flowcver. it is noted that they did not seek to serve a reply after they received the order datcd March 34, 201.1. or upon receiving the plaintiffs' opposition, and do not seek permission to do so at this time. Pursuant to CPLR 2221(e)(2), a motion for leave to renew shall he based upon new facts not offered on the prior motion that would have changed the prior determination or shall dernonstrate that thcre has been a changc in thc law that would change thc prior determination. Pursuant to CPLR 2221 (e) (3), a motion for leave to renew shall contain reasonable justification for the failure to present such Facts on the prior motion. "A motion for renewal. is properly made to the motion cou rt...to draw its aiteiition to material facts which, although extant at the time o f the original motion, were not then lcnown to the party scekiiig renewal and, consequently, wcre not placed before thc court. Renewal is granted sparinglq. and only in cases where there exists a valid excuse for failing subinit the additional ¬acts on the original application: it is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation.'. ( B e i q )v Xrustees oftlze Trust Created by EZizabeflt A! F. Wcinherg, (IS Gwaizfur, 132 AD2d 190, 522 NYS2d 5 11 [l st Dept 19871). Here, a basis for I-enema1 has been demonstrated by thc plaintiffs, as the parties had agreed to an adjournment of the motions. and on thc ground that this court rendered a decision without considering the opposition papers subini tted by thc plaintiff aiid received by the defendants. 1.0 ,4ccordingly, the plaintiffs application for renewal of motions (004) and (005) is granted, and this court's order datcd March 24, 201 1 is hereby recalled and vacated. Upon consideration of the plaintiffs' opposing papcrs. it is noted that the plaintiffs did not oppose clefendant Rajendran Naidoo's motion (004) for suininary judgment, and, in fact, submitted a stipulatioii of discontinuance datcd April [* 3] C arlin Y Naidoo index No. 08-3058 1 Page No 3 18. 201 1 .wherein they agrced to discontinue the action against him. This stipulation was signed by counscl for- defendant Naidoo and counsel for ihe plaintiffs. Said stipulation was not signed by counsel Cor dcfeiidants IIuntington Hospital and Barbara Rose. as required pursuant to CPLR 321 7. However, IHuntington FJospital and nurse Rose did not object to such stipulation of chcontinuance; they did not assert a cross claim against defendant Naidoo in their answer: and further. they did not submit any c\ ideiitiary submissions establishing any liability againsl defendant Naidoo. Accordingly, up011 consideration of the plaintiffs opposition papers and tlie stipulation of discontinuancc, that part of the prior order datcd March 24. 201 1, which denied sumniary judgment in motion (004) to del-endant Naidoo is vacated, and sunirnary judgment dismissing the complaint as asserted against hiiii is granted. with pre-judice. This medical malpractice action is premised upon tlic aIIeged neg igence of defendants, lack 01 informcd consent, iiegligcnt hiring by the defendant Huntington FIospital. and a derivative claim on belial r of the plaintiffs spouse, relating to the care and treatment rendered to the plaintiff, Daniel Carlin, beginning on or about November 17,2006 through about November 30, 2006. It i s claimed that the defendants negligently performed knee surgery, failed to properly treat a hematoma, and otherwise departed from accepted standards of care causing the plaintiff to sustain a dislocation and permanent injurj in his left knee after surgery. The proponent o f a summary judgment motion must make a prima facie showing of entitlement to judgment ar a matter of law% tendering sufficient evidence to eliminate any material issues of fact from thc case To grant summary judgment it must clearly appear that no material and triable issue of fact is presented ( F r i e n h ofArzinza1.y v Associated Fur Mfrs., 46 NY2d 1065, 416 NYS2d 790 [1979]; Sillr?inn 1) Twentieth Century-Fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [19571). The movant has the initial burden of proving entitlement to suminaiy judgment (Whegmd 11 N. Y. U. Medico/ Center, 64 NV2d 85 1 . 487 NYS2d 3 16 [ 19851). Failure to inakc such a showing requires denial of the motion. regardlcss of the sufficiency of the opposing papers (Winegrad v N . Y.U. Medical Center, c7ip1.0). Oncc such proof has been offered, the burden then sliilis to the I3pposing party, who. in order to defeat the motion for suinmaiy judgment, niust proffer evidence in admissible form...and must show fjcts sufficient to require a trial of any issuc of fact (CPLR 321 2[b]; Zuckermniz I City ofNew York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposing party must asseinble. lay bare and reveal his proof i n order to establish that thc matters set foi-th in his pleadings are real and capable of being cstabiislicd (Crrstro liberty Bus Co., 79 AD2d 1014. 435 NYS2d 340 [2d Dept 19811). The rcquisite clcments of proof in a medical malpractice action are (1) a deviation or departure a from acccptctl practice, and (2) evidence that such depai-ture \& as proximate cause of injury or damage iHnlfort Spr(iiit Rrnnk Manor Nursing Home, 253 AD2d 852, 678 N u S2d 503[2d Dept 19981, app denjcd 92 NY2d 8 18, 685 NYS2d 420). To prove a prima facie case of iiedical malpractice, a plaintiff must establish that defendant s negligence was a substantial factor in producing tlic alleged injuiy (see Derrlirrriari 19 Felix CorzfracfingCory., 5 1 NY2d 308. 434 NYS2d 166 [ 19801; Prefe I) RqfluDemetriorrs, 521 AD2d 674, 638 NYS2d 700 2d Dept 19961). Except as to matters within the ordinary cspericnce and knowledge of laymen. expert medical opinion is necessary to prove a deviation or depai-turc from accepted standards of medical care and that such departure was a proximate cause of the 11 [* 4] C ai-lins Naidoo Index No. 08-39581 Page No. 4 plaintiff 5 injury (,see Fiove v Grilang. 64 NY2d 999, 489 NYS2d 47 [ 1 98 51;L ~ O I v McCnulej), 252 ZS AL32d 5 1 6.5 1 7.675 NYS2d 375 [2d Dept 19981, app denied 92 NY2d 8 14,681 NYS2d 475; Bloom v Ci@ New J ork, 202 AD2d 465,465,609 NUS2d 45 [2d Dept 19941). In motion (005 ), defendants Huntington Hospital and Barbara Rose sought summary judgmelit disniissing the complaint on the bases that they bear no liability in this aciion in that nurse Barbara Rose did not depart from the standard of care in carrying out the verbal order of the physician; that although nurse Rosc lifted the plaintiffs leg without tlic imiimbilizer in place, it was not a departure from the standard of care and did not cause or contribute to any injury to the plaintiff; that because a private physician managed tlic plaintifr s care and treatment, the hospital was not responsible for providing informed consent to the plaintiff , that no cause of action is stated with regard to the physical therapist Rosc for whom the plaintiff claims tlie hospital is vicariously liasle: and that the plaintiff has and M s ~ lailed to cstablisli any evidence to support a claim against tlie hospital wi tli regard to Dr. Naidoo s privileges. In support of said niotioii (005). Huntington I-Iospital and Barbara Rose submitted, inter alia, an attorney s affiiriiiation; the moving defendants answcrs, plaintiffs verified bill of particulars aiid supplcmental bill of particulars; an uncertified copy of the plaintiffs hospital record; the affidavit of Barbara Rosc: and tlie affirmation of Pliilip A. Robins, M.D. Ralh:ua Rose sct forth in her supporting aftjdavit datcd September 9, 201 0, that she is a certified nursing assistant eiiiployed at Huntington Hospital. She stated that on the momiiig of November 24, 2006. she was asked by the orthopedic resident to place a pillow under MI-, Carlin s left leg. and that she did so by placing her hand under his ankle, gently raising his ankle and positioning a pillow so that Mi-. Carlin s heel u.as resting on the pillow. She further stated that it is comnon to keep post-operative knee patients positioned in bed with the operative leg elevated on a pillow, as she had done on numerous patients prior to her care of Mr. Carlin. It is noted, however, that Ms. Rose did not set forth the accepted procedure for raising a patient s knee postoperatively after the knee surgery for tlie purpose of placing the patient s leg on a pillow, whether or nct she followed the proper protocol, and whether she properly supported the joints of the extremity shc was lifting. thus creating a factual issue in her affidavit. These factual issues were not by r c s n l \ ~ d 1he affirmatioii of Philip A. Robins, M.D.. submitted in further support of motion (005). Philip A Robins, M.D. sct forth in his affirmation that he is board certificd in orthopcdic s;ui-gciy l-lc set forth his opinions with a reasonable degree of medical certainty, as well as the plaintiffs status during his admission to IIuntington Hospital. He noted that on November 19, 2006, an order was placed for an iinniohilizcr which was to be applied to Mr. Carlin s left leg. On November 20,2006, wlien tlie neurology consult was called, the neurologist s impression was that Mr. Carlin had a proximal inability to dorsiflex toes 2 to 5. Dr. Robins stated Lhat Dr. Naidoo, noted in a peroneal palsy 1~i1l1 cubsequciit notc that there was an expanding hematoma with possible peroneal iicrve compression for which hc plmied an incision and drainage which was performed later tl-,at day at which time a massive hcmatoma was found. Postoperatively. Mr. Carlin was permitted full. weight bearing with tlic iimniohili7cr i n place. aiid he was to have a pillow under his ankle, and il:e to his knee. [* 5] Carlin \ Naidoo JndeX NO. 08-30581 PageNo 5 Dr Robins stared that 011 November 22,2006. a vena cava filter w,1s placed, physical therapy and Ncpal-in were to be held until the next day, and Mr. Carlin s licels were to be kept off tlie bed. The neurology consultation note indicated - probable left peroneal. neuropraxia with weakness mostly in ankle dorsiflexion. On November 23, 2006, Mr. Carlin was seen by the physical therapist who noted that weight hearing could be resumed as tolerated with the immobilizer, however, it was noted that Mr. ( arlin was having great difficulty advancing his right lower extremity and maintaining an erect posturc. The physician was contacted regarding resuming range of inotio 1 and CPM, and oil November 23, 2006, Dr. Naidoo saw Mr. Carlin, held tlie CPM and permitted weight bearing with the immobilizer. Dr. Robins continued that on November 24. 2006, Dr. Naidoo wrote in his note that Mr. Carlin \vas coii~plaining severe pain and reported that a nurse s aide forcibly manipulated his knee, of resulting in sharp pain and deformity. Dr. Naidoo s initial impression included a rupture of tlic lateral collateral ligament and dislocation of tlie tibia or the fibula for which lie ihereafter performed a closed rcduction under anesthesia reducing the dislocation. Post-operatively, he noted that there was extreme instability to posterior stress and also in the posterior capsule. Therefore. stated Dr. Robins, Dr. Naidoo performed a further left total knee revision and used a rotating hinged prosthesis. He stated Dr. Naidoo s operative repoi? indicated extrcrne instability of the knee in the anteroposterior plane. Dr. Robins opined that FIuntington Hospital and Ms. Rose did not depart from accepted standards of care in that the doctor s orders only rcquired the immobilizer with weight bearing and there was no order requiring that the immobilizer be kept in place at all times. Dr. Robins continued that tlie oi-thopcdic resident did not deviate from the standard o f care in ordering the placeincnt of the pillow under Mr. Carlin s leg, heel or ankle as it is routine practice for patients .#ho have undergone knee surgery. Dr. J<obins further stated that Ms. Rose appropriately lifted Mr. Carlin s leg and properly follou.cd the resident s instruction to place the foot on a pillow. Although a hospital or other inedical facility is liablc for the negligence or inalpractice o f its cmployecs, that rule does not apply when the treatment is provided by an independent physician, as when the physician is retained by the patient himself, unless the hospital knows that the patient is unawarc o t the dangers and novelty of the inedical procedure proposed to be performed (Birdell Hill 1 S . Clare s Hospitnl, 67 NY2d 72. 499 NYS2d 904 [ 19863). It i s determined that Ms. Rose s alleged f actions were pcr ¬ormed by her as an employee of the defendant hospital. acting within the scope of her enipioyiiicnl. Therefore, Huntington Hospital would be liable for the acl of its employee, if liability is found, In turning to tlie issue of liability, it is dcterniined that Dr. Robins opinion that Ms. Rose propcrlj lificd MY Carlin s leg is conclusory, as he did not set forth the proper procedure or protocol for lifting a leg after laice surgery and providing support to the joints and extremity. Likewise. no hospital procedure or policy has been submitted relative thereto, leaving it to this court to speculate as to the proper procedure to he followed, and the basis for Dr. Robins opinion. Tlius, Dr. Robin s affirmation does not remlve this factual issue. There was also no expert testimony submitted by any of the defendants opining that Ms. Rose s actions did not proximately cause the injury. Nor is there proof as to whcther tlie instability in the knee referred to by Dr. Seideman and by Dr. Naidoo contributed to the dislocation of the plaintiffs knee when Ms. Rose lifted Mr Carlin s leg to place the pillow. [* 6] Carliii v Naidoo Index NO. 011-30581 Page No. 6 Accordingly. tlie movants failed to set forth the cause of the plaintiffs knee dislocation sufficient to establish that the defendant hospital and nurse Rose did not prouimately cause the plaintiffs injuly. Tlius, it is delel-mined that Huntington Hospital and Ms. Rose have not establish prima facie entitlement to summaiy ,judgnient dismissing the complaint against them, and their rnotion for summary judgment dismissing the complaint as interposed against them is denied. If ciititlemcnt to summary judgment had been demonstrated by the defendant hospital and Ms. Rose, to rebut the prima facie showing of entitlement to an order granting summary judgment by the defendants. the plaintiffs must deinonstrate the existence of a triable issue o r fact by submitting an ewpel-1 ~ affidavit of nicrit attesting to a deviation or departure from accepted practice, and containing an cause of thc injuries of the opinion that the defendant s acts or omissions were a competei.lt-produci~~g plainliff ( YC(> Lifshitz IFRet11 Israel Men. Cfr-Kings Highivny Div., 7 AD3d 759, 776 NYS2d 907 [2d J k p t 2004); Dovlinrntlzki I Glen Cove OB/GYNAssocs., 242 AD2d 282,660 NYS2d 739 [2d Dept 1 9971). Summary.judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical cxpei-t opinions. Such credibility issucs can only be resolved by a.iury (Bengston v W m g , 41 AD3d 525.839 NYS2d 159 [2d Dept 20071). It \vas noted that Dr. Seideman, Dr. Naidoo s expert, set forth that on Novernbcr 24, 2006, Dr. Xaidoo noted that Mr. Carlin complained of severe pain following forcible inanipulation of his knee by a 1iurse.s aide a t which time MI-.Carlin felt like something was pulled out from under his leg, there was a snap which he could hear, and tlicn there was a horrifying pain. He stated that consequently, Mr. Carlin was re!.urned lo the operating rooin by Dr. Naidoo for a closed reduction under anesthesia due to a posterior dislocation and internal tibial rotation o f his knee status post a traumatic rupture o f the lateral collateral ligament and dislocation of the tibia or femur. Plaintiffs expert, a physician is licensed to practice mediciiie in New York, New Jersey, Pennsylvania and Florida, and is also board certified in orthopedic surgery. He set forth the inaterials and rccords revicwed and opined with a reasonable degree oC medical certainty. He continued that the affidavit o f Barbara Rose indicated that she visited Mr. Carlin on the morning of November 24, 2006 to placc a pillolv under his ankle, and that Mr. Carliii remembered somebody trying to move his leg, that h i s Icg was pulled or yaiiked , and that he inimediately heard a snap and felt a sharp pain. It is the plaintiffs expert s opinion that moving Mr. Carlin s leg without the use of an immobilizer permitted his joint to niovc as the necessary support was not provided. Such manipulation by Barbara Rose, lie stated. u as a dcparture from the standard of care. He continued that a posterior dislocation such as the type cxpcncnccd 1.: the plaintiff, did not happen spontaneously. and required a force for the knee to dislocate. 3 Tle further stated that the order requiring thc use of a 20 inch knee immobilizer was never discontinued, and 3s such, it should have never been removed from Mr. Carlin s left knee. especially when his leg was being nioved. Failure to have the immobilizer in place when moving tEe leg permitted the joint to bend without thc wplioit fi-om tlie immobilizer or necessary support. Thus, he concluded, the manipulation by Barbara Rose was a departure from the standard of care. As to proximate cause, the plaintiffs expert stated that the forcible manipulation of Mr. Carlin s leg by Barbara Rose was the cause for the dislocation Thus, even i f defendants I-Iuntington I-Iospital and Barbara Rose had establishcd prima facie entitlement to suniniary judgment. factual issues were raised by the plaintiffs precluding summary judgnient . [* 7] Based upon the foregoing, it is determined that tlie defendants Huntington IHospital and Barbara Rose failed to establisl? prima facie entitlement to suinmary judgment dismissing the complaint and that tlie plaintiffs have raised factual issues to preclude surnmaiy judgincnt on both tlie issuc of departure from the standard of care by nurse Rose, and wlietlier such departure from the standard of care was the prouiiiiate cause of the injury, dislocation oftlie plaintiffs knee, and scquzlla related thereto. Accordinglq . the motion by Huntington Hospital and Barbara Rosc: for summary judgment dismissing the complaint as asserted against them is denied. FINAL nrsrosiTim x NON-F

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