Helm v Gwenn Lentine, M.D., P.C.

[*1] Helm v Gwenn Lentine, M.D., P.C. 2008 NY Slip Op 52551(U) [21 Misc 3d 1148(A)] Decided on December 22, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2008
Supreme Court, Richmond County

Elizabeth R. Helm, Plaintiff,

against

Gwenn Lentine, M.D., P.C., C. STEPHAN KWON M.D., CENTRAL PATHOLOGY SERVICES, P.C., and SAINT VINCENT CATHOLIC CENTER n/k/a SISTERS OF CHARITY MEDICAL CENTER/ST. VINCENT'S C CAMPUS,, Defendant(s),



100008/2005

Judith N. McMahon, J.

Plaintiff commenced this medical malpractice action on or about January 3, 2005, alleging that the defendant failed to timely diagnose plaintiff's ovarian cancer. Issue was joined by defendant Lentine on or about January 28, 2005. The note of issue was filed on July 22, 2008. Presently, defendant Gwenn Lentine, M.D., P.C., is moving for summary judgment on plaintiff's second cause of action, namely, alleging lack of informed consent. In addition, plaintiff is moving, inter alia, to remove Special Referee Ken McGrail from supervising any further nonparty depositions, pursuant to this Courts Order dated October 23, 2007.

I.Defendant Gwenn Lentine's Motion for Summary Judgment (Motion 018)

It is well settled that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of triable issues of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). The party moving for summary judgment bears the initial burden of establishing its right to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]), and in this regard " the evidence is to be viewed in a light most favorable to the party opposing the motion, giving [it] the benefit of every favorable inference" (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Nevertheless, upon a prima facie showing by the moving party, it is incumbent upon the party opposing the motion to produce "evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d at 324; see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).

"Public Health Law § 2805-d (1) defines lack of informed consent as the failure of the person providing the professional treatment . . . to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical, dental or podiatric practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation'." (Manning v. Brookhaven Memorial Hosp. Med. Ctr., 11 AD3d 518, 520 [2d Dept., 2004]).

To recover for a lack of informed consent cause of action the plaintiff "must allege that [*2]the wrong complained of arose out of some affirmative violation of plaintiff's physical integrity" and further that "a reasonably prudent person in the plaintiff's position would not have undergone the treatment if he or she had been fully informed and that the lack of consent is a proximate cause of the injury or condition for which recovery is sought (Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000]; Iazzetta v. Vicenzi, 200 AD2d 209, 213-214 [3d Dept., 1994]).

Here, the plaintiff has alleged in her complaint that "[d]efendants, and each of them, failed to inform the plaintiff of the risks, hazards and alternatives connected with her care and treatment as rendered so that an informed consent could not be given" and further, that "[r]easonably prudent persons in plaintiff's position would not have undergone the care and treatment as rendered if fully informed of the risks, hazards and alternatives connected with the treatment rendered". As specified in her amended bill of particulars the plaintiff goes on to allege that the:

"Plaintiff did not and could not consent to the risk that defendants would fail to diagnose her ovarian carcinoma, by inter alia, failing to perform proper tests, by failing to timely and properly report the results of testing, by failing to observe that which was there to be observed by proper and timely examinations, by failing to state during surgery; and, no reasonable patient, in Plaintiff's position, would consent to accept the risk that the medical professionals to whom she entrusted her medical care would be negligent in the exercise of their professional duties to the Plaintiff. Further, no defendant informed Plaintiff that one of the risks of her medical care was the incompetency of the medical professionals rendering the care, therefore, Plaintiff, could not consent to any such risk. Had the Plaintiff been informed by the defendants that the defendants would be incompetent in delivering her medical care, Plaintiff would not have had an examination, testing, surgery or any medical treatment whatsoever by any defendant"

Here, the defendant Lentine has successfully established her entitlement to summary judgment as a matter of law on the informed consent cause of action (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Herrin v Airborne Freight Corp., 301 AD2d 500, 500-501 [2d Dept 2003]). Specifically, the defendant has proven that the allegations as contained in plaintiff's complaint and bill of particulars do not successfully allege a wrong arising out of an affirmative violation of the plaintiff's physical integrity (Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000]; Iazzetta v. Vicenzi, 200 AD2d 209, 213-214 [3d Dept., 1994]). Here, as in similar cases, the plaintiff claims that the physician failed to timely diagnose her ovarian carcinoma and failed to inform the plaintiff of her own alleged incompetence, both of which are insufficient to establish a cause of action based upon informed consent (Campea v. Mitra, 267 AD2d 190, 191 [2d Dept., 1999][holding that "plaintiffs' claim that the appellant doctor failed to recommend surgery at a time when more beneficial results could have been obtained fails to state a cause of action based on lack of informed consent"]; Schel v. Roth, 242 AD2d 697, 698 [2d Dept., 1997][finding that the failure of the doctor to allegedly evaluate the patient in a timely manner, does not allege an affirmative violation of the patients physical integrity and as such fails to state a cause of action based upon lack of informed consent]; Smith v. Fields, 268 AD2d 579, 580 [2d Dept., 2000][determining that "plaintiff's lack of informed consent claim essentially seeks to recover damages for the defendant's failure to inform her of the risks . . . [and therefore] fails to state a viable cause of action for recovery"]; Janeczko v. Russell, 46 AD3d 324, 325 [1st Dept., [*3]2007][stating that "[a] failure to diagnose cannot be the basis of a cause of action for lack of informed consent unless associated with a diagnostic procedure that involves invasion or disruption of the integrity of the body'"]; Jaycox v. Reid, 5 AD3d 994, 995 [4th Dept., 2004][holding that the alleged negligence of a doctor failing to timely perform a procedure does not sustain a cause of action for lack of informed consent]).

In opposition, the plaintiff has failed to raise any triable issues regarding affirmative violations of plaintiff Helm's physical integrity (Cortale v Educational Testing Serv., 251 AD2d 528, 531 [2d Dept 1998]). Specifically, the plaintiff provides little opposition to the motion and does not establish that any alleged lack of informed consent by defendant Lentine affirmatively violated Elizabeth Helm's physical integrity and as a result, summary judgment in favor of defendant Gwenn Lentine is granted on the second cause of action, namely, lack of informed consent.

II.Plaintiff Elizabeth Helm's Motion for further Discovery and removal of Referee

The portion of plaintiff's motion which seeks to remove Special Referee Ken McGrail from supervising discovery is hereby denied. As the Court has noted previously in several conferences and orders, the contentious nature of this proceeding warrants supervised discovery including party and nonparty examinations before trial. Moreover, as previously stated, all further nonparty examinations before trial (including, but not limited to those depositions of Drs. Morrish, Vittal, Werner and Herzog) shall be supervised by Mr. Ken McGrail, in accordance with this Courts multiple decisions and in compliance with all applicable rules and regulations. This Court agrees with the plaintiff that this case needs to be expedited to trial and the supervision of the nonparty examinations before trial serve to further that purpose in the most expeditious fashion. In fact, this Court set up to have all nonparty examinations before trial held in August 2008, however, as a result of continued delay tactics and contentious proceedings between the attorneys they have continuously been delayed and plaintiff now risks going to trial without the depositions if they are not completed in a timely fashion.

In addressing the most recent, and numerous, correspondence regarding the nonparty depositions this Court will again memorialize its previous ruling of July 30, 2008, which indicated that the depositions will be supervised by Special Referee Ken McGrail. Further, as was indicated by this Court, plaintiff's attorney is permitted to question Dr. Morrish regarding his employment status with Dr. Herzog as well as only OPMC issues relating to this specific case only. More particularly, plaintiff is not permitted to question Dr. Morrish regarding any and all OPMC history but only any complaints/sanctions made in accordance with this case. Plaintiff's attorney, as she previously indicated, desires the employment contract between Dr. Morrish and Dr. Herzog and to the extent that one is provided, she indicated that the questions regarding such would be unnecessary. Continuing, questions regarding Dr. Morrish's social security number, all current and last known addresses, and payroll records are permitted. With respect to Dr. Herzog, he may be questioned regarding what the arrangements were with the ultrasound machine with Dr. Lentine as well as where they shared an office together at the time of plaintiff's procedure.

With respect to the Arons authorizations requested, the plaintiff is to supply the authorizations in compliance with Mr. McGrail's order and using the form supplied by the Office of Court Administration within 20 days of this decision. In addition, all further discovery requests, including any notices to admit and discovery and inspection demands, are hereby [*4]denied. As indicated by the plaintiff, the note of issue was filed in this case on July 25, 2008, certifying that all discovery has been completed. The plaintiff's request, as heard orally at the conference before this Court on November 18, 2008, that further motion practice regarding nonparty depositions be entertained is denied. No further motions regarding discovery are permitted, as previously directed by this Court on October 23, 2007. This case has continued to be delayed as a result of continual and unnecessary motion practice and needs to be expedited to trial. Plaintiff's continual request for these nonparty examinations before trial and request for continual motion practice on such is counterproductive and serves only to delay her client's case. At this point the parties should be on notice that the trial in this matter will not be delayed to accommodate nonparty depositions that were ordered to take place months prior. It is hereby directed that the parties set up firm dates for all remaining nonparty depositions with Special Referee Ken McGrail forthwith.

According, it is,

ORDERED that the defendant Dr. Gwenn Lentine's motion for summary judgment on plaintiff's second cause of action, informed consent, is hereby granted, and it is further

ORDERED that the case proceed immediately to trial on the remaining causes of action, and it is further

ORDERED that the plaintiff's motion to remove Mr. Ken McGrail from supervising

further examinations before trial and other discovery related issues, is hereby denied in all aspects, and it is further,

ORDERED that the Clerk enter judgment accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

E N T E R,

Dated: December 22, 2008______________________________

Honorable Judith N. McMahon

Justice of the Supreme Court