Colbert v Lustberg

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Colbert v Lustberg 2017 NY Slip Op 31656(U) August 1, 2017 Supreme Court, Suffolk County Docket Number: 11-24914 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] con SHORT l'OR.1\1 ORDER INDEX No. 11-24914 CAL. 16-0J908MM o. SUPREME COURT - STATE OF NEW YORK I.A.S. PART 37 - SUFPOLK COUNTY PRESENT: Hon. JOSEPH FARNETI Acting Justice Supreme Court MOTION DATE 3-1 6-1 7 6-8-1 7 ADJ . DATE Mot. Seq.# 004 - MD # 005 - MD # 006-MG ---------------------------------------------------------------)( JENNIFER COLBERT and LEE COLBERT, LEVINE & GROSSMAN Attorney for Plaintiffs l 14 Old Country Road Mineola, New York 1150 l Plaintiffs, WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Attorney for Defendants Lustberg and Huntington Bay Obstetrics & Gynecology, P.C. l 50 East 42nd Street New York, New York 11017 - against - STUART LUSTBERG, M.D., LAWRENCE LIPPERT, M.D., HUNTINGTON BAY OBSTETRICS & GYNECOLOGY, P.C., and HUNTINGTON HOSPJT AL, Defendants. FUREY, FUREY, LEVERAGE, MANZIONE, WILLIAMS & DARLINGTON, P .C. Attorney for Defendant Huntington Hospital 600 Front Street Hempstead, New York 11550 BENVENUTO & SLATIERY Attorney for Defendant Lippert 1800 Northern Blvd. Roslyn, New York 11576 ---------------------------------------------------------------)( Upon the following papers numbered l to _2L read on these motions for summary judgment: otice of Motion/ Order to Show Cause and supporting papers I - 13; 17 - 38; 43 - 55 ; Notice of Cross Motion and supporting papers _ ; Answering Affidavits and supporting papers 14 - 16 : Replying Affidavits and supporting papers 39 - 40: 4 1 -42 ; Other_; it is, [* 2] Colbert' Lustberg. lnJe:-. l'\u. I l - ~..J.9 1..J. Page 2 ORDERED that the mot ion (seq. 00..J.) by dekndant l.av;rence .I . Lippert. M.D .. the motion (seq. h) Jckndants Swart Lustberg. :vl.D. an<l l lumington l~ay Obsh:trics & Ciynernlogy. P.C.. and the motion (seq. 006) h~ dcfen<lant I lumington I lospital an.: <.:nnsolidated for purposes or lhis determination: and it is 00)) ORDERED that the motion by defendant Lawrence J. Lippert, M.D .. and the motion hy de!endants Stuart Lustberg. M.D. and I luntinglon Bay Ohstetrics & <i) necolog). P.C.. for summary judgment in their favor dismissing the wmplaint and all cross claims asserted against them are denied: and it is further ORDERED that the motion by dcl'endant I lunlinglon I lospi tal for summary judgment in ils favo r dismissing the complaint and all cross claims asserted against it is granted. Plaintiff Jenni for Colbert commenced thi s action to recover for personal injuries allegedl y caused by defendants· medical malpractice. inter alio. in improperly performing a (-section and in failing to obtain informed consent before performing the procedure. Plaintiff I ,cc Colbert alleges loss of companionship and consortium of his spouse. Issue has been joined. discovery is complete. and a note of issue has been filed. Lawrence J. Lippert. M.D .. now moves for summary judgment in his favor dismissing the complaint and all cross claims asserted against him. In support the motion. Dr. I,ippert submits, among other things. copies of the pleadings: his own deposition transcript and the deposition transcripts or Stuart Lustberg. M.D.. Jennifer Colbert and Lee Colbert: plaintiffs medical records: and the expert affirmation of Leonard Benedict. M.D. or Stuart Lustberg, M.D. and Huntington Bay Obstetrics & Gynecology. P.C. (hereinafter colkctively referred to as .. Dr. Lustberg"). move for summary judgment in their favor dismissing the complaint and all cross claims against them. In support o r the motion. Dr. Lustberg submits an afli rmation of expert v.itness J. Gerald Quirk. M.D.: copies of the pleadings: his own deposition transcript and the deposition transcripts of Dr. Lippert .Jennifer Colbert and Lee Colbert: and plaintiff's medical records. I luntington I lospital moves for summary judgment in its favor dismissing the complaint and all cross claims against it. In support of the motion. Huntington Hospi tal submits copies of the pleadings: the deposition transcripts or Dr. I,ippert and Dr. Lustberg; plainti tr s medical records: an affidavit of Kri stina Jeffrey and un anirmation of expert witness Michae l /\rato. M.D. Tn opposition. plaintiffs submit an affirmation of counsel and an expert physician· s affirmation . .lcnnifor C'olhcrt testified that she hecame pregnant in :'v1ay 2009 and her estimated date of deli very was January 11, 20 10. She testified that she treated prenatall y with her obstetrician, Dr. Elisa Fclsen-Singcr. and her prenatal care was un<.:omplicatcd until November 2009 when she was found to have elevated blood pressure. Medical records indicate that on 'ovembcr 24. 2009. plaintiff was admitted to I luntington I lospital to rule out pregnancy induced hypertension. prcedarnpsia. Plaintiff [* 3] Colbert ,. I.ustherg index l\o. i 1-2.+91.f Pag1: 3 \\as prcscrihecJ I .abctolol. an anti-hypcrtcnsi' 1: medication. ancJ rch.:asc<l from I luntingwn I lospital on J\0\1.:mber 26. 2009. In December l)f2009. pluin1iff\vas 16 years ol<l. and \\cighed 208 lhs. I kr medical rewn.!s inc.Jicutcd she \\US an acti\ c smoker. and suffi.:n.:d from chronic hypertension ancJ asthma. Plaintiff testilie<l thut on January 5. 2010. during a schc<lukd onice visit with Dr. Elisa Fcls1.:nSingcr. her bloo<l pressure ''as cl1.:,·ate<l. Pl ainti IT aJmiued that she had not taken her blood pressure medication and \Vanlcd lo go homc to takt: it. Later that alkrnoon. plainti rr s hloo<l pressure remained elevated and Dr. Fclsen-Singcr<lirectcd plaintiff to go lo ll unlington Hospital. Plaintiff testified she v.as to be monitored at I luntington I lospital and a C-scction \Vas scheduled for January 6. 2010. Medical records indicate that on .January 5. 20 I0. Dr. Stuart Lustberg. an on-call covering obstetrician. performed a <:-section at approximately 8: 10 p.m. Dr. f ,ustbcrg testi ficd that because of plaintiffs chronic hypertension and superimposed prccclampsia and the risk to both plain ti ff and the lCtU5 he decided to perform a C-seetion artcr his physical examination of plaintiff revealed a blood pressure or 170 over I 00. Records indicate that at 6: I 0 p.m. plaintiff signed an informed consent form alter discussing the risks with Dr. Lustberg. Dr. Lustberg testified he was assisted by Dr. Lippert. Dr. Lustberg testified he used a Pfanncnstielin incision. Dr. Lippert testified that his role as an assistant surgeon was to hold retractors. help control minor bleeding. press on the uterus to assist delivery and to suture the right half of the facial incision at the direction or the lead surgeon. Dr. Lippert cestilied that he did not suture any portion of plaintiffs peritoneum, rcctus muscles, subcutaneous tissue or closi.: her skin. He testified that the Cesarean section was concluded at 9:45 p.m. and he was not otherwise involved in plaintiff's care and treatment. Medical records indicate that there were no complications or difficulties noted during the Cesarean section. Following delivery plaintiff complained of abdominal pain. nausea. and vomiting. Dr. Lustberg was not invo lved in plaintifrs post-Cesarean section care. Medic.:al records indicate that on .January 9, 20 10. plaintiff was diagnosed with an incisional hernia and Dr. Vera Freeman performed an exploratory laparotomy. Dr. Freeman reported that ··a knuckle of small bowel was noted herniated through the lower midline fascia layer. but it vvas herniated through a layer of peritoneum and musc le that had been sutured together.·· To make a prinwf(1cie showing of entitlement to sutnm(lry judgment in an action to recover damages for medical malpractice. a defendant must establish through medical records and competent expert affidavits that it did not deviate or depart from accepted medical practice in the treatment or the plaintiff or that it was not the proximate cause or plaintiffs injuries (see Castro v New York Ci(~' Health & flosps. Corp .. 74 /\D3d 1005, 903 'YS2d 152 l2d Dept 2010]: Deutsch v Cltaglassia11. 71 AD3d 718, 896 . YS2d 43 l 12d Dept 201 OJ: Plato v G1111erat11e, 54 ADJd 741. 863 YS2d 72612d Dept 20081: Jones 11 Ricciardelli. 40 /\03d 935. 836 YS2d 879 j1d Dept 2007]: Mendez v Ci(}' of New York, 195 /\D2d 487. 744 YS2d 847 [2d Oept 20021). To satisfy this burden. the defendant must present c~pert opinion testimony that is supported by facts in the record and addresses the essential allegations in the bi 11 or particulars (see Roques v Noble. 73 /\D3d 204. 899 YS2d 193 l 1st Dept 20101: Ward v Engel, 31 ADJd 790. 822 YS2d 608 l2d Dept 20061). Conclusory statements that do not address the allegations in the pleadings arc insuflicicnt to establish cntitlcment to summary judgment [* 4] Colbl.'rt Y Lustberg imh.:'\ '\o. i i -2-+9 l 4 Pagl' .f 1• llud.wm I 'al. llosp. Ctr. . 8) 1 J) 3d 71.f. 92~ NYS2d 12d lkpt 20 11 j). /I.. physician \ a dul~ or n.:as~1nabk cure to hi:-i lH. her pa tknts and\\ ill general I) be insu l<Ited from liability \\hl.'n: thcr1.· is c\·idt:ncc that he or she conl(innc<l to the acccptabk stun<lard or can.: and practice (see Spe11sieri 1• Lasky. 9.f :-.JY2d 23 1. 70 I ·ys2d 689 11999 j: Barrell 1• l/11dso11 Valley Cardiow1sc11/ar A.Hoc. , P. C. <)J AD3<l 691. 936 NYS2d 10.f l2d lkpt 20121: Ge.fi er 1 n ·North Sltore ll11h•. l/o.\p.. ':17 J\DJtl 8~9. 871 , YS2d 61 7 [2d Dl.'pt 2008 j). (see Garlwwski U\'-CS Failure to demonstrate a 1>rimaJi1cie casl.' n.:quires denial or the summary judgment motion. regard less of the sufficiency ol'the opposing papl.'rs (see A l varez v Prmpect Hosp.. 68 NY2d 320. 5088 YS2d 923 [ 19861). Once the dercndant makes a primu.fi.tcie showing. the huruen shi Its to the pluin ti ff to produce evidentiary proof in admissible form sunicient to establish the ex istence or triable issues of fact which require a trial or the action (see A fi.arez I ' Prospect Hosp.. Sll/)fll: Kelley v Kingshrook J ewislt M ed. Ctr. . 100 /\DJd 600, 9:3 YS2d '276 j2d Dept 20 121; F iore11ti110 1• TEC H oldi111:s. LLC. 78 /l..D3d 766. 91 I YS2d l.f6 !}d Dept 20101). In a medical malpractice action. a plaintiff opposing a motion for summary judgment need only raise a triahlc issue of foct with respect to the clement or the cause of action or theory or nonliability that is the subject or the moving party's primu.fhcie showing (see Bhim v D011rmas'1ki11 . 123 AD3d 862. 999 YS2d 471 [2d Dept 2014 1 Hayden 11Gordon .91 : /l..DJd 819. 937 NYS2d 299 j2d Dept 20121: Stukas 11Streiter. 8 3 /\ D3d 18. 9 18 NYS2d 176 f2d Dept 20 11I: S c/tic/mum 11 Yasm er . 74 J\ D3d 13 16, 904 ]\ YS2d 21 8 j2d Dept 20101). I Iere, Dr. Lippert and Dr. J,ustberg have failed to established a prinw/(1cie case of entitlement to judgment as a matter of law that they did not depart from good and accepted medical practice (see Muniz 11 Mount Sinai Hosp. of Queens. 91 J\D3d 612. 937; YS2d 244 [2d Dept 20121; Belak-Red/ v Bolle11gier. 74 J\D3d 1110. 903 NYS2d 50812d Dept 20 101: Tuorto vJadali. 62 AD3d 784, 878 NYS2d 457 [2d Dept 20091). While both defendants present expert anirmations from Dr. Benedict and Dr. Quirk. respectively. that they did not depart from accepted standards of care. did not contri bute to plaintitrs alleged injuries, and that incisiona l hernias .. arc remarkably comrnon and occur in approxi mately 12 to 15% ubdom ina l operations:· the experts opinions arc directly contrad icted by Dr. l.ustberg·s own deposition testimony. When asked at his deposition, based upon a reasonable degree n1edical certainty. as to •.vhether a patient who has been closed in the manner he described. that is. peritoneum. followed by rcctus muscle. followed by fascia. followed by the subcutaneous tissue. followed by the skin closure. the bowe! can make its way into the suture line after the closure. Dr. I .ustberg opined .. that it cannot.·· He explained ... , i If the suture line is placed properly. its tight and there is no space fo r that:· While Dr. Quirk references plaintitrs advanced maternal age. obesity. smoking. hypertension, and asthma as risk facto rs following a C-section. Dr. Lustberg has raised triable issues of fac t by contrad ict ing his own ml!dical expcrt ( Walle11q11est v Brookltave11 Mem. l/osp. Med. Ctr. . 28 /\D3<l 538. 813 YS2<l 484 [ 2d Dept 2006 I). or or Morcon:r. Dr. 1.usthc:rg testilied that he has no independent recollection or the surgery he performed on plaintiff and his operative report. relied upon by his cxpcrt. is not in admissible form (see CPl.R .+518). /\n expert opinion that is unsupported by an c\'idcntiary foundation has no probative value ( Diaz 1• N Y Dow11tow11 lfo5p .. 99 1Y2d 5.+2. 754 NYS2d I95 p002j). Accordingly. those branches of Dr. Lippert's and Dr. Lustbl.'rg·s motion to dismiss the first eausc- or action arc denied. [* 5] ( 'olhert ' I u-;therg indc.\ :-.it>. l l -~-t9 i -IPage 5 .\s to plaintiffs sec1rnJ cause of action alle!!ill!.! lack ol'infonned co11-;c111. Jd~11Junts h~l\e cslabli-;hcd .1 pri11w /C1cie ea:-.\.' Ill' cntitkmcnt to judgm\.'1ll a!'\ a matter nf kt\\ . Io i:stahlish a claim for medical 1111.tlpractice hased tHl lad~ nl'infonn\.'d con~enl. a plaintiff must pro\·c: (I l that the person providing the prnkssional tn.:aunenl failed to disclose altcrnatin:s tt) such tn.:atment, and the alh::rnatives. and foiled tn inform the plaintiff of the reasonahl) f'mcseeahk risJ..s or such tn:atmc111 that a n:asonahk medieal practitioner \\'OUld have disclosed in the same circumstances: ('.2) that a reasonably prudent patient in the same ~ituation '' ould not ha\'c undergone the treatment had he or she hccn full) informed or the risks: and (3) that the lack or informed eonsent v.:as a pro:-;imatc cu use or the plainti ws injuries (see Puhlic I lcalth I .aw* 2805-d 111: Schmsh eim 1• Bar au 111i. 136 /\D3d 787. 24 NYS3d 756 l2d Dept 20 l 6 I: Lavi v NYU Hosps. Ctr. . l 33 /\D3d 830. 21 NYS3d 143 I2<l Dept 20 l 51: Zapata 1 Buitriago. l 07 /\D3d 977. %9 YS2d 79 12d Dept 2013 j). However, where a private physician attends his or her patient al the faeil ities or a hospital. it is the duty or thl! physician. not the hospital. to obtain the paLicnt·s informed consent. and u hospital employee's undertaking the ministerial task or recording that consent docs not transfer that duty to the hospital (see Dorin,. Be11isclt. 130 /\D3d 777. 14 YS3d 95 [2d Dept 20151: S ela ,, Kat;:,, 78 /\D3d 681. 91 l NYS2d 112 pd Dept 201 OI: S alandy v Bry k. 55 /\D3d 14 7. 152. 864 NYS1d 46 [2d Dept 2008 j). Here, Dr. Lustberg testi lied and medical records indicate that he explained the the risks of delivery by C-section to plaintiff and her spouse and all questions were encouraged and answered. An informed consent form was signed by plaintiff on January 5. 2009. at 6: I0 p.m. In opposition. plaintiff.-; have not raised any issue of fact. /\ccordingly. the cause or action is dismissed as to all defendants. ~ ~ 1 Turning to the motion by I luntington Hospital. a hospital generally may not be held liable !Or malpractice committed by a private attending physician not in its employment (see Hill v St. Clare's flojp .. 6 7 Y2d 72. 499 NYS2d 904 I l 986 J: S m olia11 v Port A utlt. of N . Y. & N .J.. 128 AD3d 796. 801. 9 •YS3d 329. D4 12d Dept 20151: Zltuz/1ingo v Milligan, 121 AD3d 1103. 995 NYS2d 588 r1d Dept 2014 I). an exception exists when a patient presents at an emergency department seeking treatment from the hospital and not from a particular physician or the patient's own choosing (see S molia11 v Port A ut/1. of N. Y. & N.J.. supra: M uslim v Horiw 11 Med. Group, P. C.. 118 AD3d 68 l. 988. YS2d 628 12d Dept 2014 J: Giambmw v Hill es, I 04 /\D3d 807. 961 NYS2d 519 12d Dept 20131). Under this exception. liahility is predicated on the hospital's apparent or ostensible agency over the independent physician (see Hill v St. Clare's Hosp. , supra, at 80: M uslim v llorizon Med. (i roup, P. C., supra: Loaiza v lam. I 07 /\D3d 95!. %8 NYS2d 54812d Dept 20131). :vtoreovcr. a ho ·pital may he held concurrently liahlc with a private physician ir its employees commit independent acts of negligence or fail to inqu ire about the correctness of a private physician's orders that arc contrary to normul pradice (see Doria v Be11isclt. supra: Aronov v S nukkary. l 04 f\[)3d 623. 960 YS2d 462 12d Dept 20131: Carletta v Fischer. I 0 l /\ D3d 929. 956 t\YS2<l 163 I2<l Dept 2012 j). Herc. I luntington I lospital has established a prima lw.:ie case of entitlement to judgment as a matter or law dismissing the complaint asserted against it. Kristina kfTrey. an executive assistant in the hospital" s human resource department. mws that she searched the hospital" s employment records and that such search showed Dr. I.ustherg \\as not an employee or the hospital in 20 I 0. I.ikcwisc. Dr. Lippert tcstitied that in 2010 he was self-employed. /\dditionally. the hospital's expert. Dr. Michael Arato, opines that the care and treatment rendered to plaintiff hy the staff or Huntington I lospital was in [* 6] Colbert,. l.ustbt:rg. Index No. i i- ~·F>J4 Page 6 act:orJance " ·ith good and accepted medical pract ice and not the pro:-: imatc cause or any or plainti IF s claiine<l injuries. Plaimiffs do not opposl..' the hnspital"s nwtion .and ha\L' foikJ lo rai:-.ed ai1 issul..' ill. foci regarding. the del~ndant rluntington I Jospital. . \ccordingl~. I luntington I lospital" s motion to dismiss the complaint asserted against it is granted. The Court din.:cls that the claims as to which sum mary j udgment was granted an: hereby severed and that the remain inµ claims shall continue (see CPl.R Y212 Ic 111 j). Dated: t\ug.ust I. 2017 f'IN.'\ L D ISPOS IT ION X ~O:'l - fl'I A L Dl.' POS!TIO "I

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