Weiss v Finkelstein

[*1] Weiss v Finkelstein 2006 NY Slip Op 52088(U) [13 Misc 3d 1232(A)] Decided on November 2, 2006 Supreme Court, Nassau County Phelan, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 2, 2006
Supreme Court, Nassau County

Florence Weiss and Philip Weiss, Plaintiff(s),

against

Harvey S. Finkelstein, M.D., Pain Care of Long Island, Ira Weg, M.D., and South Shore Internal Medicine Associates, P.C., Defendant(s).



14989/04



Oshman & Mirisola, LLP

Attorneys for Plaintiffs

90 William Street

New York, NY 10038

Geisler & Gabriele, LLP

Attorneys for Defendants Finkelstein and

Pain Care of Long Island

100 Quentin Roosevelt Blvd.

P. O. Box 8022

Garden City, NY 11530

Keller, O'Reilly & Watson, P.C.

Attorneys for Defendants Weg and South Shore

Internal Medicine

242 Crossways Park West

Woodbury, NY 11797

Thomas P. Phelan, J.

Motion [sequence #2] by defendants Harvey S. Finkelstein, M.D. and Pain Care of Long Island (Pain Care) and motion [sequence #3] by defendants Ira Weg, M.D. and South Shore Internal Medicine Associates, P.C. (South Shore), each seeking an order pursuant to CPLR §3212 awarding them summary judgment dismissing plaintiffs' complaint are granted.

Plaintiff, Florence Weiss, commenced the within personal injury action sounding in medical malpractice on or about October 25, 2004. Plaintiff, Philip Weiss, has interposed a claim for loss of services. Issue was thereafter joined upon the interposition of verified answers from each defendant in or about November and December 21, 2004.

Plaintiff, Florence Weiss, suffered from a history of atrial fibrillation for which she was being treated by her internist/cardiologist, defendant Weg, who had prescribed the blood thinner Coumadin. Plaintiff's medical history additionally reveals the presence of scoliosis and significant degenerative arthritis. As a result of pain both with respect to plaintiff's back and right ankle, plaintiff's orthopedist, non-party Ralph Parisi, referred plaintiff to defendant Finkelstein [*2]an anesthesiologist and pain management specialist.

On May 14, 2002 plaintiff consulted with defendant Finkelstein who recommended epidural steroid injections. As plaintiff was taking Coumadin and as such injections cannot be administered while such a drug is being taken, defendant Finkelstein telephoned defendant Weg who provided clearance for plaintiff to temporarily stop the Coumadin so that the injections could proceed. The injections were scheduled to take place on May 28, 2002. On that date plaintiff was admitted to Long Island Jewish Hospital having suffered a cerebrovascular incident. The scheduled injections were never effected.

As amplified in plaintiffs' verified bill and supplemental bill of particulars, plaintiffs allege the following with respect to defendants Finkelstein and Pain Care: [1] defendants were negligent in failing to independently ascertain the propriety of plaintiff Florence Weiss discontinuing Coumadin; [2] defendants failed to inform plaintiff of the reasonable risks involved in discontinuing Coumadin therapy; [3] defendant Finkelstein discontinued Coumadin for an excessive length of time in contravention of the instructions of defendant Weg; [4] and defendant Finkelstein failed to substitute another drug during the time in which plaintiff was not taking Coumadin.

With regard to defendants Weg and South Shore, plaintiffs allege the following: [1] defendant Weg was negligent in authorizing plaintiff to discontinue Coumadin; [2] the length of the Coumadin cessation was excessive and an alternative anticoagulant should have been prescribed in place of thereof; [3] defendant Weg failed to discuss the cessation of Coumadin directly with plaintiff; [4] and defendant Weg failed to advise defendant Finkelstein of the risks attendant with cessation of Coumadin.

In support of their application, defendants Finkelstein and Pain Care contend they did not depart from good and accepted medical practice and were not negligent in the care of plaintiff. Additionally, these defendants contend that any action predicated upon lack of informed consent must necessarily fail inasmuch as same is unsupport by the record and the complaint does not allege an affirmative violation of plaintiff's physical integrity.

Defendants Finkelstein and Pain Care provide the affirmation of Dr. Malcolm Charles Phillips who states that he is a Diplomate of the American Board of Internal Medicine, with a Cardiovascular Subspecialty, and a Diplomate of the American Board of Internal Medicine. Dr. Phillips reviewed plaintiffs medical records and, predicated upon that review, avers that to a reasonable degree of medical certainty, the care afforded plaintiff by defendant Finkelstein was in accord with accepted medical standards (Randazzo Aff. Exhibit C). Dr. Phillips further states that defendant Finkelstein appropriately relied upon the decision of defendant Weg with regard to plaintiff's temporary cessation of Coumadin and whether any substitute medications should be administered in place thereof (Id.).

Defendants additionally reference various portions of the deposition testimony of defendants [*3]Finkelstein and Weg, as well as that of plaintiff, Florence Weiss.

Defendant Finkelstein, when asked what conversation he had with plaintiff with regard to her Coumadin therapy, testified to the following: ". . . we had a discussion to the fact that she was on blood thinners and she would need to stop that. I remember that the patient said that this medicine was prescribed by her physician and we had to call him to get authorization. I asked her, was she aware of the fact that she's on this medication for a reason and that, you know stopping it is a part of this risk of having the procedure. And she said if we called up her doctor and he said it was safe to stop, she felt the pain was severe enough to take that risk" (see Randazzo Aff. Exhibit E).

Defendant Weg testified that based upon a review of a note dated May 14, 2002 contained in plaintiff's chart he had a telephone conversation with defendant Finkelstein on May 14, 2002 wherein he informed defendant Finkelstein that plaintiff could "stop Coumadin for a few days for injection therapy." (see Randazzo Aff. Exhibit E).

Defendant Weg further testified that which constituted a "few days" is usually three days although it could be as many as four (Id).

Plaintiff, Florence Weiss, testified that she informed defendant Finkelstein that she was undergoing Coumadin therapy and that in anticipation of the proposed epidural injections, Finkelstein telephoned Weg (see Randazzo Aff. Exhibit E). Plaintiff was unable to recall any specific details about her conversation with defendant Finkelstein and stated that "he might have told me what to expect."(Id.). Plaintiff testified that she had ceased her Coumadin therapy for a period of two and a half days prior to suffering a stroke ( Id.).

Within the particular context of a medical malpractice action, a plaintiff opposing a defendant doctor's motion for summary judgment is required to proffer evidentiary facts sufficient to rebut the doctor's prima facie showing that he or she was not negligent when rendering medical care to plaintiff (Pierson v Good Samaritan Hosp., 208 AD2d 513 [2d Dept 1994]). Allegations of a general and conclusory nature which are not supported by competent and admissible evidence and which do not demonstrate the essential elements of a medical malpractice action are not sufficient to defeat a motion for summary judgment (Alvarez v Prospect Hosp., supra). The essential elements of a medical malpractice action are comprised of the following: [1] a deviation or departure from accepted medical practice and [2] evidence that such departure was a proximate cause of plaintiff's injury (Holbrook v United Hosp. Med. Ctr., 248 AD2d 358 [2d Dept 1998]).

With regard to the scope of a physician's duty, the general duty of care owed by physicians to their patients may be limited to those medical functions undertaken by the physician and relied upon by the patient.(Boone v North Shore University Hospital at Forest Hills, 12 AD3d 338 [2d Dept 2004] quoting Wasserman v Staten Island Radiological Associates, 2 AD3d 713 [2d Dept [*4]2003]).

The affirmation of defendants' expert Phillips is competent evidence that defendant Finkelstein did not depart from good and accepted medical practice when he relied upon and deferred to the directions given to him by plaintiff's cardiologist with respect to the cessation of Coumadin. Moreover, the medical function undertaken by defendant Finkelstein was that of interventional pain management and not plaintiff's cardiac care and thus defendant Finkelstein's duty of care did not extend to the treatment rendered to plaintiff by her cardiologist (Boone v North Shore University Hospital at Forest Hills, supra; Wasserman v Staten Island Radiological Associates, supra).

With regard to the issue of informed consent, to state a cause of action sounding in same plaintiff must allege that the wrong upon which the claim is based resulted from some affirmative violation of plaintiff's physical integrity (Martin v Hudson Valley Associates, 13 Ad3d 419; Smith v Fields, 268 AD2d 579). Upon a review of the pleadings plaintiff has failed to set forth any such allegations.

In the matter sub judice, based upon the heretofore referenced deposition testimony coupled with the Phillips Affirmation and the averments therein contained, defendants Finkelstein and Pain Care have demonstrated their prima facie entitlement to judgment as a matter of law thereby shifting the burden to plaintiffs to submit competent evidence showing a departure from accepted medical practice and a nexus between the alleged medical malpractice and plaintiff's injury (Alvarez v Prospect Hosp., supra).

In opposition to defendants' application, plaintiffs submit the affirmation of a medical doctor who avers that he has personally performed epidural injections and managed patients who are on anticoagulation therapy for atrial fibrillation (see Langell Aff. Exhibit C). Plaintiffs' expert opines that defendant Finkelstein departed from accepted standards of medical practice by failing to advise plaintiff of the risks in stopping Coumadin, by failing to provide defendant Weg with sufficient information regarding the procedure that was to be performed and by failing to advise plaintiff as to symptoms which accompany a stroke (Id.).

"It is well settled that an expert's opinion must be based upon facts in the record or personally known to the witness, and that the expert may not assume facts not supported by the evidence in order to reach his or her conclusions." (Erbstein v Savasatit,, 274 AD2d 445). The judgment espoused by the particular expert must, considered in totality, indicate a particular level of certitude so as to be admissible. (Gross v Friedman, 138 AD2d 571, affd 73 NY2d 721).

As to the first of the contentions espoused by plaintiffs' expert, same is unsupported by the record. As adduced from the deposition testimony referenced above, defendant Finkelstein specifically stated that he discussed with plaintiff the risks of temporarily stopping her Coumadin therapy (see Randazzo Aff. Exhibit E). Plaintiff testified that she was unable to recall the totality of her conversation with defendant Finkelstein but that he "may have told me what to expect." [*5](see Randazzo Aff. Exhibit E).

With respect to the second contention posited by plaintiffs' expert that Finkelstein failed to provide Weg with sufficient information regarding the procedure to be performed, same is contradicted by the record. Defendant Weg specifically testified that it would have been his custom to discuss with defendant Finkelstein the value of the procedure versus the risk of the cessation of the Coumadin therapy and if he thought the risks outweighed the benefits he would have advised accordingly (Randazzo Aff. Exhibit E). Additionally, defendant Weg testified that when he spoke with defendant Finkelstein on May 14, 2002, based upon plaintiff's INR, he authorized the patient to cease her Coumadin therapy for a period of three days (Id.).

The third and final assertion by plaintiffs' expert is similarly devoid of evidence in the record. Plaintiffs' expert states that defendant Finkelstein departed from good and accepted medical practice in not advising plaintiff of certain signs of a stroke, to wit: confusion, slurred speech, or weakness. Regardless of whether defendant Finkelstein had informed plaintiff as to these signs of a stroke, there is no evidence in the record that plaintiff experienced any of these symptoms. Rather, plaintiff testified that she awoke during the night and didn't know if she "hallucinated" but that she had a "strange feeling". When she awoke on the morning of May 28, 2002 she knew something was wrong (see Randazzo Aff. Exhibit E).

Viewing the evidence in a light most favorable to plaintiff as is required when deciding a motion for summary judgment, the court concludes that the expert affirmation submitted by plaintiff has failed to raise a triable issue of fact.

Defendants Finkelstein and Pain Care are accordingly awarded summary judgment dismissing plaintiffs' claims against them.

Turning to the motion by defendants Weg and South Shore, the court notes preliminarily that the opposition interposed by plaintiffs was apparently untimely served upon counsel for defendants Weg and South Shore. Based upon the affidavit of service, the instant application was served upon plaintiffs' counsel on July 7, 2006, more than 12 days prior to the August 31, 2006 return date (see CPLR§ 2214[b]). However, counsel for defendants avers that the opposition was not received until September 1, 2006 via facsimile. Nevertheless, inasmuch as defendants do not appear to have suffered any prejudice thereby, the Court will afford due consideration to the opposition interposed by plaintiffs.

In support of their motion for summary judgment, counsel for defendants Weg and South Shore posits that defendant Weg was not negligent in authorizing plaintiff to temporarily cease her Coumadin therapy, that the period of cessation was not excessive and the administration of an alternative drug was not indicated.

Defendants Weg and South Shore proffer the affidavit of Dr. David Farr, a licensed physician in the State of New York who is Board Certified in internal medicine and cardiovascular disease. [*6]Dr. Farr states he conducted a review of plaintiff's medical records, as well as the bills of particular and depositions transcripts relevant to the within action. Predicated upon said review Dr. Farr states that, "It was entirely appropriate for Dr. Weg to approve Mrs. Weiss' removal from this drug so that her blood could properly clot when she received the injection from Dr. Finkelstein". Dr. Farr further states that, "In atrial fibrillation patients, with no prosthetic valves, prior embolic events, or thrombi, like Mrs. Weiss, the standard in the medical community when undergoing a procedure such as a back injection, is to simply allow the patient's Coumadin to wear out' and not to inject another anti-coagulant such as Heparin or Levonex."(see Pagano Aff. Exhibit M).

Dr. Farr also opined that it was ". . . appropriate, and consistent with the good and accepted practice of medicine, for an atrial fibrillation patient, like Florence Weiss, to be removed from Coumadin anti-coagulation therapy for even five full days" and that " Mrs. Weiss was not at a high risk of stroke when she was temporarily removed from Coumadin"(Id.).

In opposition, plaintiffs offer the affirmation of a physician licensed in the State of New York who states that he has personally performed epidural injections and has managed patients who are on anticoagulation therapy for atrial fibrillation(see Langell Aff. Exhibit C). The expert sets forth numerous deviations whereby defendant Weg fell below the standard of good and accepted medical practice in advising defendant Finkelstein to direct plaintiff to cease her Coumadin therapy prior to the scheduled injections(Id.). Specifically, plaintiffs' expert opines that defendant Weg failed to consider plaintiff Florence Weiss' INR level, her age and that plaintiff suffered from left ventricular dysfunction as had been diagnosed in an echocardiogram done in June of 2002 (Id.).

It has been held that while an expert need not be a specialist in the precise area of medicine at issue in order proffer an opinion, the expert must sufficiently establish his familiarity and knowledge with the standard of care relevant to the case before the court. Any deficiencies with regard to the expert's skill or expertise would bear upon the weight of the opinion evidence and not to the admissibility thereof. (Erbstein v Savasatit, supra; Texter v Middletown Dialysis Center Inc., 22 AD3d 831). In the instant matter, the applicable standard of care with which plaintiffs' expert would be required to demonstrate sufficient knowledge is that applicable to the field of cardiology.

Applying the aforesaid legal principles to the expert affirmation offered by plaintiffs, the Court finds that such is both insufficient to rebut the affidavit submitted by defendants and to raise a triable issue of fact. Initially, plaintiffs' expert does not, with any degree of specificity, establish his knowledge and familiarity with the standards of cardiology and how defendant Weg departed from same (Erbstein v Savasatit, supra; Texter v Middletown, supra). Additionally, the expert's statements that defendant Weg did not consider plaintiff's age or INR level are belied by the testimony of defendant Weg who testified that both factors were considered (see Randazzo Aff. Exhibit E). [*7]

Moreover, upon a close reading of the expert's affirmation, the conclusion that defendant Weg was negligent in failing to consider the results of an echocardiogram is premised upon an echocardiogram which was taken in June of 2002, a point in time which clearly postdates the events in issue of May 14, 2002.

Defendants Weg and South Shore are accordingly awarded summary judgment as well.

Plaintiffs' complaint is dismissed. Dismissal is without costs.

This decision constitutes the order of the court.

Dated:NOVEMBER 2, 2006 THOMAS P. PHELAN

J.S.C.