Achkar v Chang

[*1] Achkar v Chang 2008 NY Slip Op 51497(U) [20 Misc 3d 1121(A)] Decided on July 18, 2008 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2008
Supreme Court, Richmond County

Anthony Achkar, an infant under the age of 14 years by his parent and natural guardian LORI ACHKAR, and LORI ACHKAR and ELI ACHKAR, individually, Plaintiff(s),

against

Edwin Chang, M.D., JAMIE JULIANO, P.A.C., DAVID HIRSCHORN, M.D., ROLANDO SOUSA, M.D., ANNA FURR, M.D., D. COTTONE, M.D., STATEN ISLAND UNIVERSITY HOSPITAL, HEALTHCARE ASSOCIATES IN MEDICINE, P.C., NEUROSCIENCE ASSOCIATES OF NEW YORK and CONCORD NEUROLOGICAL AND NEUROLOGICAL ASSOCIATES P.C., Defendant(s).



101628/2006

Judith N. McMahon, J.

On or about May 22, 2006, the plaintiffs commenced this action for medical malpractice against defendants Drs. Edwin Chang, David Hirschorn [FN1], Rolando Sousa,

Anna Furr [FN2] and D. Cottone [FN3], and Jamie Juliano, P.A.C.[FN4], Staten Island University Hospital, Healthcare Associates in Medicine, P.C., Neuroscience Associates of New York and Concord Neurological and Neurological Associates, P.C.[FN5] Specifically, the plaintiff contends that the defendants failed to timely diagnose and treat a shunt malfunction in the infant plaintiff, Anthony Achkar, from May 7, 2004 to May 11, 2004, which resulted in, inter alia, cerebral palsy, cognitive deficits and seizures. Issue was joined and discovery was complete in November 2007. At present, defendants Drs. Sousa and Chang, Staten Island University Hospital [hereinafter [*2]"SIUH"], and Healthcare Associates in Medicine, P.C. and Neuroscience Associates of New York [hereinafter collectively "Healthcare"], are separately moving for summary judgment seeking to dismiss the complaint as against each of them individually.

It is undisputed that the infant plaintiff was born, prematurely, on or about September 10, 2003, and immediately diagnosed with an intraventricular hemorrhage which required the placement of a shunt on September 11, 2003. Approximately eight months later, on May 7, 2004, the infant's mother Lori Achkar, presented to SIUH at the recommendation of Anthony's pediatrician Dr. George Roussis with complaints that the infant was, inter alia, lethargic, unable to tolerate fluids and irritable. Dr. Edwin Chang, the on-call neurosurgeon at SIUH on that day performed a neurosurgical consultation and concluded the shunt was functioning properly. The following day, the infant plaintiff began to experience seizures and was evaluated by Dr. John Shiau [FN6], the neurosurgeon on-call for May 8, 2004. Dr. Shiau performed several tests/comparisons and he also noted that there was no evidence of a shunt malfunction. Dr. Rolando Sousa, a neurologist, was then requested to evaluate the plaintiff as to the cause of the seizure activity. Dr. Sousa saw the infant plaintiff on May 8 and 9, and participated in some phone calls regarding the infant plaintiff's status. On May 10, 2004, a subsequent CT scan was ordered, which revealed the shunt malfunction. Dr. Chang immediately performed a shunt tap resulting in the infant plaintiff's immediate improvement. Lori and Eli Achkar then transferred Anthony to another medical center to undergo the shunt revision surgery.

I.Dr. Sousa's Motion for Summary Judgment

It is well settled that, in a medical malpractice action, "[o]n a motion for summary judgment, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice or that the plaintiff was not injured thereby" (Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). "In opposition, the plaintiff must submit a physician's affidavit attesting to the defendant's departure from accepted practice, which departure was a competent producing cause of the injury" (Rebozo v. Wilen, 41 AD3d at 458-59; Rosenman v. Shrestha, 48 AD3d 781, 783 [2d Dept., 2008]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]).

The defendant Dr. Sousa has established his prima facie entitlement to summary judgment by adducing expert opinion that he did not deviate from good and accepted medical practice in his treatment rendered to the infant plaintiff (see Alvarez v. Prospect Hosp., 68 NY2d 320, 325 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]; Geller v. Walbaum, 33 AD3d 855, 855-56 [2d Dept., 2006]). Dr. Sousa has established that after Drs. Chang and Shiau both ruled out a shunt malfunction, he relied on their representation and conducted a extensive evaluation in an attempt to determine an alternate cause of the seizure activity. Defendant's expert, Dr. Walter Molofsky, M.D., opined that Dr. Sousa conducted a thorough consultation to evaluate the cause of infant plaintiff's seizures after the neurological service eliminated a shunt malfunction. Further, Dr. Molofsky stated that there was no indication for Dr. Sousa to doubt or [*3]recommend any other tests/evaluations regarding the ruling out of the shunt malfunction as the conclusion made by Drs. Shiau and Chang were appropriate under the circumstances. As such, the defendant Dr. Sousa has established that he did not deviate from accepted medical practice by deferring to the diagnosis made by Drs. Chang and Shiau, and performing those tests/evaluations for other causes of the infant plaintiff's seizure activity.

In opposition, however, the redacted affidavit of plaintiff's medical expert [FN7] successfully raised a triable issue of fact (Chance v. Felder, 33 AD3d 645, 645-46 [2d Dept., 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Rebozo v. Wilen, 41 AD3d at 458-59). Plaintiff's expert opined that the defendant Dr. Sousa deviated from good and accepted medical practice in the treatment he rendered to the infant plaintiff. Specifically, plaintiff's expert contends that Dr. Sousa failed to properly diagnose the cause of the infant plaintiff's seizure, which was ultimately the shunt malfunction. Moreover, plaintiff's expert contends that had Dr. Sousa properly analyzed the CT scans performed on the infant plaintiff, along with properly analyzing the MRI report, a proper diagnosis/course of treatment could have been effectuated. Thus, the medical expert affirmations of the parties clearly differ on the alleged deviations by defendant Dr. Sousa and, it is well settled that where triable issues of fact exist when the parties offer conflicting expert opinions, a credibility question is presented that requires a jury's resolution (Dandrea, v. Hertz, 23 AD3d 332 [2d Dept. 2005]; Shields v. Baktidy, 11 AD3d 671 [2d Dept. 2004]; Barbuto v. Winthrop University Hospital, 305 AD2d 623 [2d Dept. 2003]). As a result, summary judgment in favor of Dr. Sousa is inappropriate.

II.Staten Island University Hospital's Motion for Summary Judgment"Generally, a hospital cannot be held vicariously liable for the malpractice of a private attending physician who is not its employee" (Quezada v. O'Reilly-Green, 24 AD3d 744, 746 [2d Dept. 2005]). Nor, can it be held liable "where its employees follow the direction of the attending physician, unless that physician's orders are so clearly contraindicated by normal practice that ordinary prudence requires inquiry into the correctness of the orders'" (Garson v. Beth Israel Medical Ctr., 41 AD3d 159, 159 [1st Dept. 2007]; Toth v. Bloshinsky, 39 AD3d 848, 850 [2d Dept. 2007]; Cerny v. Williams, 32 AD3d 881, 883 [2d Dept. 2006]; Welch v. Scheinfeld, 21 AD3d 802, 807 [1st Dept. 2005]).

Here, the defendant SIUH has established its entitlement to summary judgment by demonstrating that the doctors that treated the infant plaintiff upon his admission to SIUH were private independent contractors and not employees of the hospital (Quezada v. O'Reilly-Green, 24 AD3d 744, 746 [2d Dept. 2005]; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Defendant established that the plaintiff presented to SIUH at the recommendation of Dr. Roussis, the infant plaintiff's pediatrician, and Dr. Roussis was consulted with regard to the infant plaintiff's treatment. Further, SIUH established that its employees neither committed independent acts of negligence, nor did they follow orders [*4]from Drs. Chang or Sousa that were "so clearly contraindicated by normal practice" that they should have inquired into the accuracy of such orders (Garson v. Beth Israel Medical Ctr., 41 AD3d at 159; Cerny v. Williams, 32 AD3d at 883). In opposition, the plaintiff has failed to raise a triable issue of fact regarding any independent acts of negligence on behalf of the hospital or that SIUH's employees failure to inquire into acts of the independent doctors that were so contradictory to normal practice. As such, SIUH is entitled to summary judgment, dismissing the complaint, in its entirety, as against it.

III.Dr. Chang's Motion

With regard to defendant Dr. Chang's motion, he has successfully established prima facie entitlement to summary judgment as a matter of law through submission of the affidavit of Dr. James T. Goodrich (see Alvarez v. Prospect Hosp. 68 NY2d 320, 325 [1986]; Rebozo v. Wilen, 41 AD3d 457, 458-59 [2d Dept., 2007]; Johnson v. Queens-Long Island Med. Group, 23 AD3d 525, 526-27 [2d Dept., 2005]). Defendant's expert, Dr. Goodrich, opined that the defendant did not deviate from the standard of care applicable in his treatment of the infant plaintiff because under the circumstances presented Dr. Chang performed the appropriate tests/evaluations to evaluate the cause of the infant plaintiff's symptoms. Dr. Goodrich further opined that Dr. Chang acted in accordance with accepted medical procedures and standards in diagnosing the plaintiff.

In opposition, the plaintiff's expert creates a triable issue of fact, including whether Dr. Chang should have performed additional tests which may have led to a proper diagnosis (Chance v. Felder, 33 AD3d 645, 645-46 [2d Dept 2006]; Zuckerman v. City of New York, 49 NY2d 557 [1980]; Rebozo v. Wilen, 41 AD3d at 458-59). Specifically, plaintiff's expert opines that had Dr. Chang compared the MRI results and ordered CT scans more timely, Dr. Chang would have discovered the symptoms were suggestive of a shunt malfunction. Clearly, triable issues of fact exist regarding whether Dr. Chang acted appropriately under the circumstances and summary judgment must be denied in medical malpractice actions where the parties offer conflicting expert opinions creating a credibility issue requiring a jury's resolution (Dandrea v. Hertz, 23 AD3d 332 [2d Dept., 2005]; Shields v. Baktidy, 11AD3d 671 [2d Dept., 2004]; Barbuto v. Winthrop University Hosp., 305 AD3d 623 [2d Dept., 2003]).

IV.Healthcare Associates, et. al.'s motion

Defendant Healthcare Associates, et. al., is moving for summary judgement on the theory that they are not vicariously liable for the acts of their employee, co-defendant Dr. Chang. Defendants have failed to establish a prima facie showing of entitlement to summary judgment because, as already indicated, questions of fact exist with respect to whether Dr. Chang departed from good and accepted medical practice in failing to timely diagnose the infant plaintiff's shunt malfunction (Dandrea v. Hertz, 23 AD3d 332 [2d Dept., 2005]; Shields v. Baktidy, 11AD3d 671 [2d Dept., 2004]; Barbuto v. Winthrop University Hosp., 305 AD3d 623 [2d Dept., 2003]). As such summary judgment in favor of Healthcare Associates, et.al., under the doctrine of vicarious liability, is inappropriate.

Accordingly, it is

ORDERED that the defendant Dr. Sousa's motion for summary judgment is hereby [*5]denied, and it is further

ORDERED that defendant Staten Island University Hospital's motion is hereby granted, and it is further

ORDERED that defendant Dr. Edwin Chang's motion for summary judgment is hereby denied, and it is further

ORDERED that the defendants Healthcare Associates in Medicine, P.C., and Neuroscience Associates of New York's motion for summary judgment is hereby denied, and it is further,

ORDERED that the complaint is dismissed in its entirety against defendant Staten Island University Medical Center ONLY; and it is further

ORDERED that the Clerk enter Judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: July 18, 2008E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court Footnotes

Footnote 1:The case has been discontinued against David Hirschorn.

Footnote 2:The case has been discontinued against Anna Furr, M.D.

Footnote 3:D. Cottone, M.D. has failed to appear in this action, to this date.

Footnote 4:The case has been discontinued against Jamie Juliano.

Footnote 5:Not a legal entity and not a party to this action.

Footnote 6:Not a party to this action.

Footnote 7:The Court notes plaintiff's redacted expert affirmation is sufficient, pursuant to CPLR § 3101(d)(1)(i), whereby redacted physicians affirmation are permissible to defeat a motion for summary judgment (Marano v. Mercy Hosp., 241 AD2d 48, 50 [2d Dept. 1998]).