Congo v Brookhaven Memorial Hosp. Med. Ctr.
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Congo v Brookhaven Memorial Hosp. Med. Ctr. 2012 NY Slip Op 32570(U) October 4, 2012 Supreme Court, Suffolk County Docket Number: 09-3786 Judge: Denise M. Molia 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] SIIORT fORM ClRDf:R COPY INDEX No. CAL No. 09-3786 II·00390MM SUPREME COURT· STATE OF NEW YORK IAS. PART 39 . SUFFOLK COUNTY PRESENT: Hon. DENISE M MOLIA Justice of the Supreme Court MOTION DATE 7-]3-]] AD!. DATE 9-28-12 Mol. Seq. # 005 . MG ...................................................... ·········X CHERYL CONGO, Plaintiff, - against - [lROOKHA VEN MEMORIAL HOSPITAL MEDICAL CENTER, RANDALL PHILLIPS, M.D., ALEXANDER S. FINGER, M.D., and [lROOKHA VEN ORTHOPEDIC ASSOCIATES, M.D., P.c., [lAUMAN & KUNKlS, P.c. Anorney for Plaintiff 14 Penn Plaza, Suite 2208 New York. New York 10122 FUMUSO, KELLY, DEVERNA, SNYDER SWART & FARRELL, LLP Attorney for Defendant Brookhaven Memorial Hospital 110 Marcus Boulevard, Suite 500 Hauppauge, New Yark 11788 KOPFF, NARDELLI & DOPF, ESQS. Attorney for Defendant Doctors Phillips and Finger and Brookhaven Orthopedic Associates 440 Ninth Avenue Defendants . New York, New York 10001 .................. ¢ ¢ ¢ ¢ ¢ ¢.............................. ·········X Upon the following papers numbered I to 20 read on this motion for summary judgment; Noliee of Motion! Order to Show Cause and supporting papers (005) 1 - 20 ; Notice of Cross Motion and supporting papers _; Answering Affidavits and supporting papers _; Replying 1\ ffidavits and supporting papers _, Other _; (,lIId llnel lielll ill!!, COUll-lei ill support tlIId ~pp()sed to lilt IlIoli()lt) it is, ORDERED that this motion (005) by defendant Brookhaven Memorial Hospital Medical Center for an order pursuant to CPLR 3212 granting summary judgment dismissing plaintiffs complaint is granted. [n this medical malpractice action, the plaintiff Cheryl Congo's claims are prcmised upon the alleged negligence of defendants and their failure to provide her with informed consent. The plaintiff was seen and treated in the emcrgcney room at Brookhaven Hospital Medical Centcr (Brookhavcn Hospital) on or about September 5, 2006. and was subsequently admitted to Brookhaven Ilospital due to injuries she sustained as a pedestrian 'when she was struck by a car while crossing the strcet. She came under the care and trcatment of Alexander S. Finger, M.D. and Brookhaven Orthopedic Associates, M.D., r.c. on or about September 5, 2006. It is alleged that the defendants negligently departed from good and accepted standards of care and treatment when Dr. Phillips, on September 7, 2006. intcrpreted an x~ray of her left foot as [* 2] Congo v Brookhaven Hospital fvledical Center Index No. 09-3786 Page No.2 indicating that there was no iJ·acture or dislocation appreciated_ She further alleges that, thereafter, Dr. Finger and Brookhaven Orthopedic Associates failed to properly treat her condition. The pla1l1tiffasserts that due to the negligent departures by the defendants in failing to diagnose the fracture in her left:foot, she was caused to undergo debridement, calcancocuboidjoint/exostomy with neurolysis of the sural nerve, intcrtarsal arthrodesis with internal fixation of the left foot, and application ofa fiberglass east due to a LIS Fran injury and post-traumatic arthritis on or about April 11,2008 DeCcndant Brookhaven Memorial Hospital seeks summary judgment dismissing the complaint as asserted against it on the bases that Brookhaven Memorial Hospital. through its medical and nursing stall did not depart from good and accepted medical and nursing practice in the care and treatment of the plaintiff, and thallhere is nothing that they did or did not do \vhich proximately caused the accident. The proponent of a summary judgment motion must make a prima facie showll1g of entitlement to judgment as a mailer oflaw, tendering sutlicient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Friends of Animals v Associated Fur .Mfrs., 46 NY2d 1065,416 NYS2d 790 [1979],' Sillman v Twentieth Century-fox Film Corporation, 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of provmg entitlement to summary judgment (Winegrad v N. Y.U. Medical Center, 64 NY2d 851, 487 NYS2d 316 [1985]). Fmlure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v N. Y.U. Medical Center, .'illpra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order 10 defeat the motion for summary judgment, must proffer evidence in admissible fonn ...and must "show facts sufficient to require a trial of any issue o1'facf' (CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). The opposmg party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are rea] and capable of being established (Castro v Liberty Bus Co., 79 AD2d 1014,435 NYS2d 340 [2d DC]Jt 1981]). The reqUIsite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted practice, and (2) evidence that such departure was a proximate cause of injury or damage (Holtoll v Sprain Brook JWdl10rNursing /lome, 253 AD2d 852, 678 NYS2d 503[2d Dept 1998], app denied 92 NY2d 818, 685 NYS2d 420). To prove a prima facie case of medical malpractice, a plaintiff must establish that defendant's negligence \',,-asa substantial factor in producing the alleged injury (see. Derdiariall v Felix COlltracting Corp., 51 NY2d 308, 434 NYS2d 166 [1980); Prete v R{~fla-Demetriolls, 221 AD2d 674, 638 NYS2d 700 [2d Dept 1996J). Except as to matters within the ordinary experience and knc)'wledge of laymen, expert medical opinion is necessary to prove a deviation or departure 1'1'0111 ::lccepted standards of medical care and that such departure \vas a proximate cause ofthc plaintrlTs injUl)' (see. Fiore v Galallg, 64 NY2d 999.489 NYS2d 47 [1985]; Lyous v McCauley, 252 !\D2d 516, 517, 675 NYS2d 375 [1d Dcpt 1998], (lei) denied 92 NY2d 814, 681 NYS2d 475: Bl0011l 11 City (~fJVew York, 202 AD2d 465. 465. 609 NYS2d 45 [2d Dep! 1994]). Although a hospital or other Illedlcal facility is liable for the neglJgencc or malpractice or its cmployccs, that rule docs 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 una"vare orthe dangers and novelty of the medical procedure proposed to be performed (Birdell Hill v St, Clare's HO.lpitll/, 67 NY2d 499 NYS2d 904 [1986]). n [* 3] Congo v Brookhaven Hospitall\·'fedical Center Index No. 09-3786 Page NO.3 In support of motion (005). Brookhaven Hospital has submitted, inter alia, an attorney's affidavit; the expert affirmation of Anthony Mustallsh, M.D.: copies of the summons and complaint, its answer and amended verified answer, and the plaintiffs verified bill of particulars; plaintitJ's certiflcd Brookhaven Hospital records, 111cludingthe x-ray report oCthe plaintiffs let! foot, dated September 7, 2006; the signed transcript of the examination before trial of Claudia Fernandez dated December 7, 1010; and the unsigned transcripts of the examinations before trial of Alexander Finger dated April 13, 2010 I, and Randall Phillips, M.D. dated March 24, 2010, with proof of mailing pursuant to CPLR 3116. Anthony Mustalish, M D. affirmed that he is a physician licensed to practice medicine in New York State and is board certified in emergency medicine. He set forth that he reviewed the bill of particulars, relevant medical records and deposition testimony and opined with a reasonable degree of medical certainty that Brookhaven Memorial Hospital, by its medical and nursing staft~ acted appropriately and did not depart from the accepted standards of medical and nursing practice in their care and treatment orCheryl Congo. Dr. Mustalish stated that when the plaintiiTpresented to the emergency room at Brookhaven Hospital on September 5,2006, after having been struck by a motor vehicle while she was crossing a street, she was awake and oriented to person, time and place, and complained of pain in her left hand, arm, hip, and leg. She was seen and examined by the emergency department physician, Claudia Fernandez, M.D., who noted those injuries in the plaintiff's hospital record. Upon examination of the plaintilf, Dr. Fernandez found, inter alia, that her lell hip \vas Ilexed and unable to extend, with slight internal rotation_ She testified that her examination involved the entire left leg and foot to the toes with visual inspection, palpation, range of motion, and check of pulses, and that the plaintiff wiggled the toes on her left foot and did not complain of pain in her left foot. Thereafter, x-rays were positive for fracture of the plaintiffs left clavicle, left proximal tibia and fibula, and left fifth digit. No x-ray of the plaintiff's left foot was ordered as the plaintiff did not complain of pain in her left foot. Dr. Mustalish continued that Alexander tinger, M.D., an 011hopedic surgeon, and Dr. Saad Shukri, a trauma surgeon, examined the p1amtiffin the emergency room on September 5, 2006. Dr Finger set forth in hlS consultation note that there was some mild tenderness in the plaintiff's left foot, which was neurovascularly intact distally. Dr. Mustalish set forth the care and treatment rendered to the plaintiff during her subsequent admission to the hospital from the emergency room. Dr. Shukri's note indicated that she had knee and ankle pain. On September 7, 2006, the plaintiff was seen by Dr. Finger's orthopedic aSSIstant, ROll Alms, who mdicated that the plaintiff was still with sig11ll1cantpain and had tenderness in her len foot. lie found that the left lovver extremity was neurovascularly intact. 1\ left foot x-ray was therefore done and interpreted by defendant radiologist Randall Phillips, M.D., who determined there \vas no fracture or dislocation. On September 8. 2006. the plaintiff had an open reduction, internal fixation of her !en knee tibial plateau fracture by Dr. Finger. Thcreafter, she \vas discharged to Island Rehabilitation, where, on September 20, 1006, a portable x-ray of her left foot revcaled no evidence of acute fracture or dislocation. Oil January 15.2007. the plainutTwas complal11mg oJ" left ankle pain. Swelling and tenderness at the lateral aspect of her left foot and ankle was noted. but an x-ray oCher lea f()ot and ankle showed no acute bony I with the unslgned signature page for Cheryl Congo annexed thereto [* 4] Congo v Brookhaven Hospital Medical Center Index No. 09-3786 Page No.4 injury. Her left foot was placed in an air cast. Dr. Mustalish continued that on March 2. 2007. Dr. Finger's note indicated that the plaintiffs main complaints were of pain in her left foot and ankle on the medial side. There was some tenderness of the posterior tibial tendon on the left with some Hat foot. An MRI was therefore ordered. however. it could not be done due to aneurysm clips in the plaintiffs brain_ She continued to complain of pain in her left fool. On October 9. 2007. the plainti ITwas then seen by Dr. Boccio. a root and ankle specialisl. An x-ray revealed no acute fracture pathology evidence, but there was a healed medial cuneiform fracture. Dr. 80ccio's impression was that of status post LIS Fran injUry with medial cuneiform fracture. possible articulate injury calcaneal cuboid joint or the left foot. Dr. Boccio indicated that there was no indication for surgical intervention a1 that time. Dr. Mustalish continued that the plaintiff saw Dr. Boccio on February 12,2008 with complaints of persistent left foot pain. On April 11, 2008, at St. Catherine of Sienna Medical Center, Dr. Boccio performed surgery consisting of debridement, <.:a1cancal uboid joint ex ostectomy with neurolysis sural nerve, internal fixation orthe leCtfoot with c application of a fiber glass cast. Dr. Mustalish opined that Dr. Fernandez, the emergency room physician who initially saw the plaintin~ appropriately evaluated and treated the plaintiffill the emergency room, and ordered appropriate radiological exams on September 5, 2006, since the patient had no complaints of left foot pain at the time. The physical examination, assessment and evaluation was properly conducted prior to administration of pain medication to the plaintiff, and docwnentation of findings was appropriate. He continued that Dr. Fernandez timely requested appropriate consultations with the orthopedic and trauma services and did not depart from accepted medical care and treatment. It was not until two days later that the plaintiff complained of left foot pain to her orthopedic physician. He stated that it was appropriate for the hospital staff to rely upon Dr. Phillips' interpretation of the left foot x-ray which was subsequently ordered, and that the hospital staff did not depart from the standards of nursing care in their repo11ing, documenting, and care and treatment of the plaintiff, and that they correctly and appropriately followed all the physician's orders. There were no negligent acts or omissions by any of the medical or nursing staff at Brookhaven Hospital, he opined, and there was nothing that they did or did not do which proximately caused the plaintiffs injuries. Based upon review and consideration of the cvidentiary submissions and thc anirmation of Dr. Mustalish, it is determined that Brookhaven Memorial Hospital has established prima facie entitlement to summary judgment dismissing the complaint on the basis that they did not depart from accepted standards of medical and nursing care and treatment and that there is nothing \"lhich they did or railed to do which proximately caused the injuries claimed by the plaintiff. To rebut a prima facie showing of entitlement 10 an order granting summa!)' judgment by the defendant, the plaintilT must demonstrate the existence of a triable issue of fact by submitting an expert· s nnidavit ofmcrit attesting to a deviation or departure from accepted practice, and containing an opinion that the defendant" s acts or omissions were a competent-producing cause of the injuries of the plaintiff (see. Lif,·llitz v Beth l~nlel Med. Ctr-Killgs Highway Viv .. 7 I\D3d 759, 776 NYS2d 907 f1d Depi 2004]: Domonulzki v Glen COile OBIGYI\' Assocs .. 2421\D2d 282. 660 NYS2d 739 [2d Dept 1997]). ··Summary judgment is not appropriate in a medical malpractice action where the parties adduce conflicting medical expert opinions. Such credibility issues can only be resolved by ajury·· (Beugstou v Wang, 41 AD3d 625. 839 NYS2d 159 [2d Dept 20071). Here. the pJaintilThas not opposed this motion and has thus failed to raise a !~lctua]issue to preclude summary judgment from being granted to the defendant Brookhaven Memol·ialllospitai. [* 5] Congo v Brookhaven Ilospital Medical Center Index No. 09-3786 Page No. :5 Accordingly. motion (005) is granted and the complaint as assel1ed against Brookhaven Memorial Hospital Medical Center is dismissed. o Dated (/':.t-.,be V , ; 7/' oZ rJ I k FINAL DISPOSITION X NON-FINAL DISPOSITION
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