Medina v New York City Health & Hosps. Corp. (Woodhull Med. & Mental Health Ctr.)

[*1] Medina v New York City Health & Hosps. Corp. (Woodhull Med. & Mental Health Ctr.) 2007 NY Slip Op 52382(U) [18 Misc 3d 1102(A)] Decided on December 4, 2007 Supreme Court, Kings County Hinds-Radix, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 4, 2007
Supreme Court, Kings County

Angel Medina, et. al., Plaintiffs,

against

New York City Health and Hospitals Corporation (Woodhull Medical and Mental Health Center), et. al., Defendants.



31938/02

Sylvia Hinds-Radix, J.

Upon the foregoing papers, defendant Dr. John Hyun moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint insofar as asserted against him.

In this action sounding in negligence and medical malpractice, plaintiffs Andrew Medina (Andrew) and Angel Brita (Angel), infants by their mother and natural guardian, Marisol Medina (Medina), and Marisol Medina, individually, allege, inter alia, that defendants New York City Health and Hospitals Corporation (Woodhull Medical and Mental Health Center) [Woodhull] and Dr. Hyun failed to timely test the infant plaintiffs for the presence of elevated lead levels in their blood and, further, failed to provide guidance to their mother as to the prevention of lead poisoning in her children.[FN1] Plaintiffs allege that these failures were the proximate cause of the injuries suffered by the infant plaintiffs as a result of their exposure to lead in their home. Dr. Hyun now makes this motion for summary judgment.

The requisite elements of proof in a medical malpractice action are a deviation or departure from accepted medical practice and evidence that such departure was a proximate [*2]cause of injury or damage (see Holbrook v United Hospital Medical Center, 248 AD2d 358, 358-359 [1998]; Bloom v City of New York, 202 AD2d 465 [1994]). As in any other action, the proponent of a summary judgment motion in a medical malpractice case must make a prima facie showing of entitlement to judgment as a matter of law through the submission of admissible evidence sufficient to show the absence of any material issue of fact on any

relevant issue raised by the pleadings (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Stone v Continental Insurance Co., 234 AD2d 282, 284 [1996]).

Moreover, in order to grant the drastic remedy of summary judgment "it must clearly appear that no material and triable issue of fact is presented .. issue finding rather than issue-determination is the key to [a motion for summary judgment]'" (Strychalski v Mekus, 54 AD2d 1068, 1069 [1976], quoting, Sillman v Twentieth Century - Fox Film Corp., 3 NY2d 395, 404 [1957]). Finally, the evidence presented by the nonmoving party must be accepted as true and a decision on the motion must be made on the version of the facts most favorable to him or her (id). "Where there is any significant doubt whether there is a material triable issue of fact or where the material issue of fact is arguable' summary judgment must be denied" (Strychalski v Mekus, 54 AD2d at 1069, quoting, Moyer v Briggs, 47 AD2d 64, 66-67 [1975]).

Applying the aforementioned principles to the case at bar, the court concludes that Dr. Hyun's motion must be denied.

It is beyond dispute that the infant plaintiffs, Andrew Medina and Angel Brito, tested with elevated blood lead levels when they were under the care of Dr. Hyun. Nor, at least for the purposes of this motion, does Dr. Hyun challenge the conclusion of Dr. Theodore Litsky that the infant plaintiffs suffered brain injury and resultant cognitive deficits as a result of their exposure to lead paint. Instead, it is Dr. Hyun's contention that his treatment of the infant plaintiffs was at all times appropriate and that, in any event, even if his negligence, as alleged by plaintiffs was accepted as true for the purposes of the motion, it was not the proximate cause of plaintiffs' injuries. For ease of discussion, the court will separately examine that claim as to each of the infant plaintiffs.

ANDREW MEDINA

Andrew was born on December 8, 1993 at Woodhull. He was first seen by Dr. Hyun, who had a private practice near where the infant lived with his mother Marisol Medina, at one month old when he was sick with a cold. Following that doctor's visit, Andrew was seen by doctors at Woodhull three times for well baby check-ups and twice when he was sick, before he saw Dr. Hyun again on July 19, 1994, when he was nine months old. On that date, Andrew visited Dr. Hyun for a check-up required for participation in the "Special Supplemental Nutrition Program for Women, Infants and Children" (WIC program). The checkup included a blood test to determine Andrew's hematocrit level, as was required by the WIC program.

According to Andrew's mother, Marisol Medina, at these early visits at Woodhull and with Dr. Hyun, she was never asked about the condition of her apartment or given [*3]information about lead based paint and the dangers it could pose to children. Medina noted that the apartment which she and Andrew were living in at that time contained a lot of chipped and peeling paint.

At his deposition, Dr. Hyun testified that, while he did not have a clear recollection of his treatment of Andrew, it was not his practice to ask about the condition of his patient's home nor did he give guidance as to how to avoid exposure to lead. He did, however, routinely inquire of the mother as to whether her child put things in his or her mouth. Dr. Hyun also testified that it was not his practice to assess whether a particular child was at high risk for developing lead poisoning because "no one can know that."

On or about December 14, 1994, at Andrew's one-year-old doctor's visit at Woodhull, a blood level test was taken which revealed that Andrew had an elevated lead level of 25ug/dl. As required by law, the Department of Health was notified and, thereafter, sent someone to Medina's apartment to abate the lead condition.

On or about December 28, 1994, just two weeks after his elevated reading, another blood test was taken at Woodhull which revealed that Andrew's blood lead level was still elevated, but had dropped to 14 ug/dl. On March 15, 1995, the doctors at Woodhull retested Andrew's blood for lead and found that Andrew's blood lead level was now within normal limits at 5 ug/dl.

Andrew saw Dr. Hyun three times in 1996 - once for a WIC physical and twice when he was sick. Dr. Hyun did not see Andrew again until March 1999 and, thereafter, saw him numerous times for sick and well visits until his last appointment on or about March 15, 2001. At two of those visits, on April 19, 1999 and May 2, 2000, Dr. Hyun tested Andrew's blood lead levels and both times they were within normal limits, at 7ug/dl and 5ug/dl, respectively.

In support of his summary judgment motion, Dr. Hyun submits the affidavit of Dr. Roy Horowitz, a board certified pediatrician. According to Dr. Horowitz,"with respect to the treatment rendered to Andrew Medina, Dr. Hyun always acted appropriately, and committed no departures from the standard of good and accepted medical practice." Specifically, Dr. Horowitz states that during the first year of his life, Andrew was receiving his primary care from the physicians at Woodhull and it was, thus, not Dr. Hyun's responsibility to test his lead levels. Dr. Horowitz points out that, in keeping with its role as Andrew's primary medical care provider, it was Woodhull who tested Andrew's lead levels at his one year-old visit and found it to be elevated and who followed up and retested his levels over the next months. According to Dr. Horowitz, Dr. Hyun did not become Andrew's primary care physician until April 19, 1999 when Andrew presented at his office for a well child visit and, on that date Dr. Hyun appropriately tested his blood lead level and found it to be within normal limits, as it was in May 2, 2000, when Dr. Hyun also sent Andrew's blood for testing.

Dr. Horowitz concludes that, as a non-primary care physician, Dr. Hyun acted in accordance with good and accepted medical practice by inquiring as to whether Andrew placed items into his mouth and was under no duty to test Andrew's blood lead level. [*4]

In opposition to Dr. Hyun's motion, plaintiff submits the affirmation of pediatrician Dr. John Rosen who disagrees with the opinions of Dr. Horowitz. To begin, Dr. Rosen states that the

"standard of good and accepted medical care in Greater New York City Metropolitan Area relating to the care, treatment and prevention of infant lead poisoning imposes ... an affirmative duty to perform Risk Assessments; to perform blood lead testing on a timely basis; ... [to time] ... follow-up blood lead testing dependent on the child's categorization as high risk' or not; and to render Anticipatory Guidance for Lead Poisoning concerning ... the hazards of lead poisoning and how to avoid it in children aged from 6 months to 6 years."

Dr. Rosen states that this standards flows from at least three sources the October 1991 Statement by the Federal Centers for Disease Control entitled "Preventing Lead Poisoning in Young Children", the American Academy of Pediatrics, and 10 NYCRR §67.1. According to the doctor, the 1991 CDC Statement, (the CDC Statement) with its recommended protocols for blood-lead screening, lead hazard Risk Assessment, and Anticipatory Guidance for Lead poisoning, has become generally accepted practice among pediatricians throughout the United States, and particularly in the Greater New York City Metropolitan Area. Dr. Rosen explains that the CDC Statement stresses the importance of assessing the risk of lead poisoning and educating parents as to the sources, dangers and prevention of childhood lead poisoning as part of the routine pediatric care for children between the ages of 6 to 72 months. Examples of the education to be provided to parents in this regard include advising parents to wash toys and pacifiers frequently, feed their children a diet rich in iron and calcium. Moreover, states the CDC report, the pediatrician should advise parents that if their house was built before 1960, the child should not be permitted to play in soil around the house because there is a likelihood that lead paint was used and that the soil and plants around the house are contaminated with lead.

Dr. Rosen also described an article published in 1993 by the Committee on Environmental Health of the American Academy of Pediatrics which set out guidelines for anticipatory guidance for lead poisoning and for assessing lead poisoning risks (similar to the CDC statement). The article suggests that children should be assessed by their pediatrician as early as six months to determine if their possible exposure to lead places them at a high risk for developing lead poisoning. Morever the article states that because "lead is ubiquitous in the US environment, [blood lead screening] should occur at about 9-12 months of age."

Lastly, Dr. Rosen states that in December 1993, Title 10 of the New York Code rules and Regulations (NYCRR), Part 67-1 was promulgated as part of New York State's lead poisoning prevention program, and provides that primary care physicians provide anticipatory guidance to parents about the risk and prevention of lead poisoning and, at each routine well-child visit assess each child between six months and six years of age as to his or her lead poisoning risk, and screen, or refer for lead screening, those children found to be at high risk. [*5]

As to Andrew, Dr. Rosen opines that both Woodhull and Dr. Hyun departed from the above-detailed standards of good and accepted medical care during his first year of life by failing to perform a risk assessment to determine Andrew's risk of exposure to lead and by failing to give his mother anticipatory guidance in that regard. Dr. Rosen notes that had Andrew been properly identified as being at high risk for developing lead poisoning, he should have been screened at six months.Dr. Rosen opines that had Andrew been so tested, the high lead levels in his blood could have been discovered sooner than at one year. Moreover, Dr. Rosen opines that had his mother been educated about ways to decrease the levels of lead in Andrew's environment, his exposure to lead could have been greatly decreased, thereby lessening, or perhaps eliminating, his resultant brain injury.

As relates to Dr. Hyun, Dr. Rosen states that it was a departure from accepted medical practice for the doctor to fail to provide Medina with anticipatory guidance on either of his visits at 7 or 12 months of age and to fail to assess Andrew's risk factors at those visits.[FN2]

As is evident from the above recitations, Dr. Horowitz and Dr. Rosen are in sharp disagreement on the issue of Dr. Hyun's negligence. Generally, unless the court concludes that plaintiff's expert's opinion that a doctor deviated from accepted medical practices is based on assumptions rather than facts in the record (see Lee v Shields, 188 AD2d 637 [1992]; Olivieri v Schwartz, 120 AD2d 658 [1986]), where there are conflicting expert opinions on the question of the defendant's medical malpractice, summary judgment is inappropriate, since it for the fact finder and not the motion court to resolve the credibility issues presented (see Feinberg v Feit, 23 AD3d 517, 519 [2005]; Barbuto v Winthrop Univ. Hosp., 305 AD2d 623, 624 [2003]); Halkias v Otolaryngology-Facial Plastic Surgery Assoc., 282 AD2d 650 [2001]).

Here, the court concludes that the opinions of both experts are well supported by the facts in evidence and their respective expertise in the area of lead poisoning in children. Thus, clear issues of fact are presented on the issue of whether Dr. Hyun departed from the [*6]accepted standard of medical care in his treatment of Andrew and, if so, whether those departures were the proximate cause of his injuries. Thus, Dr. Hyun's motion for summary judgment as it relates to Andrew's cause of action is denied.

ANGEL BRITO

Angel was born on April 7, 1995 and was not seen by Dr. Hyun until March 4, 1998, when he was almost three years old. Before that date, on September 6, 1996, when he was about 18 months old, Angel's blood was screened for lead by the doctors at Woodhull and his blood lead level was found to be 6ug/dl, which was within normal limits. According to Medina, Dr. Hyun did not inquire as to whether Angel had been screened for lead poisoning, and he did not test his blood levels at the March 4, 1998 sick child visit. One month later, however, Angel's blood lead level was tested at Woodhull and it was found to be elevated at a level of 14ug/dl.

Angel saw Dr. Hyun for sick visits in November, 1998 and in February and March, 1999 and then for a well-child visit on or about April 19, 1999, at four years old. At that later visit, Dr. Hyun tested Angel's blood lead levels and found them to be 14ug/dl. Four months later, on or about August 5, 1999, Dr. Hyun retested Angel's blood levels and found that they had increased to 31ug/dl. Thereafter, the NYC Department of Health visited the apartment to abate the lead, and on October 8, 1999, when Dr. Hyun again tested Angel's blood and found that his lead level was 14ug/dl. Dr. Hyun saw Angel a few more times in 1999 for sick and well visits and, on January 24, 2000, he again tested his blood and found that his lead levels were now within acceptable limits at 6ug/dl.

After reviewing this evidence, Dr. Hyun's expert Dr. Horowitz concluded that Dr. Hyun's treatment of Angel was appropriate. Dr. Horowitz notes that Dr. Hyun did not become Angel's primary care physician until April 19, 1999, when he came for a well-child visit and, thus, before that date he was under no duty to test Angel's blood for lead. Dr. Horowitz further notes that on that visit, Dr. Hyun appropriately tested Angel's blood lead levels and also appropriately retested those levels when the results came back elevated. According to Dr. Horowitz, Angel's lead level was never so high while he was being treated by Dr. Hyun, that he required further treatment or referral to a specialist.

Again, Dr. Rosen disagrees with Dr. Horowitz's opinions and concludes that Dr. Hyun's treatment of Angel was a departure from good and accepted medical practice and proximately caused his injuries. Specifically, Dr. Rosen finds fault with Dr. Hyun's failure to provide Medina with anticipatory guidance or assess Angel's risk for lead poisoning, especially in light of the fact that Andrew had tested with elevated blood lead levels. Also negligent, states Dr. Rosen, was Dr. Hyun's failure to inquire of Medina as to whether Angel's lead levels had been tested at Woodhull. [*7]

Moreover, Dr. Rosen notes that the evidence indicates that Medina was not given any anticipatory guidance until September 11, 1998, after Angel tested with elevated levels on that date doctors at Woodhull advised her of how to clean her apartment to decrease the amount of lead therein. Dr. Rosen points out that although Dr. Hyun saw Angel on four occasions between that date and the date that the doctor tested Angel's blood again on April 9, 1999, he failed to take the opportunity to help Medina better understand what she could do to decrease Angel's further exposure to lead or to identify the source of the lead, thereby allowing Angel's blood level to remain elevated for one year. Indeed, states Dr. Rosen, Angel's lead level increased to a level of 31ug/dl before the lead source was identified and lead condition was abated by the City. According to Dr. Rosen, Dr. Hyun's failure to provide this required education to Medina increased Angel's exposure to lead and was the proximate cause of his resultant injuries.

In short, because issues of fact exist as to whether Dr. Hyun's treatment of Angel deviated from the accepted standard of medical treatment and whether any deviation proximately caused Angel's injuries, summary judgment is inappropriate.

Accordingly, Dr. Hyun's motion for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint insofar as asserted against him is denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1: In their complaint, plaintiffs also allege, inter alia, that defendant Francesco Satallante, the owner of the building in which the infant plaintiffs resided when they were exposed to lead paint, negligently managed the building, allowing the lead paint to remain therein.

Footnote 2: Dr. Hyun and his expert's contend that, in accordance with NYCRR §67-1.3, Dr Hyun'a standard of care is lower since he was not Andrew's primary physician during his first year of life. However,, as noted, Dr. Rosen states that the standard of care in the pediatric medical community in New York City as it relates to assessment and treatment of lead poisoning, is defined not only by the NYCRR, but also by the CDC and the American Academy of Pediatrics, and those latter standards requires greater vigilance for all treating doctors. Moreover, NYCRR 67-13.1 statute states that a non primary care physician should inquire of the parent of a child between 6 months and 6 years of age as to whether a lead screening was performed by his or her primary care physician. The statute further states that if the screening was not performed, the non-primary care physician should perform the screening or refer the child to the appropriate physician for lead screening. Thus, the fact finder could find that, even as a non-primary care physician, Dr. Hyun departed from standards of accepted medical care. Of course, should the jury find liability on the part of both Dr. Hyun and Woodhull, the issue of primary vs. non-primary care may be relevant on the issue of apportionment of damages.